Allahabad High Court
Budani Pasi And Another vs State Of U.P. on 25 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 07.05.2025
Delivered on 25.07.2025
Neutral Citation No. - 2025:AHC:122230-DB
Court No:- 42
Case :- CRIMINAL APPEAL No. - 444 of 2005
Appellant :- Budani Pasi And Another
Respondent :- State of U.P.
Counsel for Appellant :- Deepak Kumar Srivastav
Counsel for Respondent :- Govt. Advocate
Hon'ble Vivek Kumar Birla,J.
Hon'ble Jitendra Kumar Sinha,J.
(Per: Hon'ble Jitendra Kumar Sinha,J.)
1. Vide order dated 05.03.2025 appeal stood abated in respect of appellant no.2 Rajani Pasi and appellant no.3 Virendar Pasi. Now, we proceed to consider the appeal on behalf of appellant no.1 Budani Pasi.
2. Heard Shri Brijesh Kumar Solanki, learned Counsel for the appellants, Shri Ghanshyam Kumar, learned AGA-Ist, for the State and perused the record.
3. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.
4. The appellant, by way of filing this appeal, has challenged his conviction and sentence under Section 307 / 34 IPC, vide judgement and order dated 17.01.2005 passed by the Additional Sessions Judge, Court No.7, Fatehpur, in Session Trial No.731/2001 (State Vs. Budani and others), arising out of Case Crime No.205 of 2001, whereby he has been sentenced to undergo imprisonment for life with the fine of each Rs.5,000/- and in case of default in payment of fine he has been ordered to undergo six months imprisonment in lieu thereof.
5. The prosecution story in brief is that on 7/7/2001, Rajendra Maurya, Anil Maurya, Sunil Maurya and daughter-in-law Mrs. Sunita, wife of Rajendra Maurya were digging the bushes in their Chak near the village. The Chak is near Budani Pasi's house. Budani Pasi's goat came to the field of informant and started causing damage. On stopping, Budani Pasi son of Siyambar Pasi, Virendra Pasi son of Bavuv Pasi, Rajani Pasi S/o Siyambar Pasi came to the Chak. The son of informant Rajendra said to Budani that his goat is causing damage to the crops. This is not right. Angered by this, Virendra and Rajani challenged him and said, "Beat him so that he does not escape." On this, Budani Pasi fired at Rajendra with a pistol with the intention of killing him. Virendra and Rajani beat him with lathies (sticks). He was shot in the head and got seriously injured. When the son of the informant raised uproar, many people from the village came and challenged the accused, who ran away. This incident took place around 4.30 pm. At that time, the informant was present in Sampat Inter College. He got the information there. Then he came to the police station with his injured son Rajendra and lodged a first information report.
6. The investigation of the case was conducted by the investigating officer and after conclusion of the investigation he submitted charge sheet against the accused appellants in the Court.
7. The learned Magistrate took cognizance on the charge sheet and committed the case to the Court of Session for trial. The learned trial Court framed charge against the accused appellants under Section 307/34 IPC. The accused-appellant accused pleaded not guilty and claimed for trial.
8. The prosecution has examined 5 witnesses, namely, PW-1 Shri Ram Maurya, PW-2 Ram Sajeevan Maurya, PW-3 Rajendra Maurya, PW-4 Anil, PW-5 Dr. S.R. Singh. The prosecution has proved Written Report as Ext. Ka1, Written Report as Ext. Ka2, Injury Report as Ext. Ka4, X-ray Report as Ext. Ka5 as documentary evidence.
9. PW-5 Dr. S.R.Singh has examined the injured Rajendra Maurya S/o Shriram Maurya age 28 years, resident of Village Umra, Police Station Khaga, District Fatehpur. The following injuries were found on his body:-
1- Lacerated wound 3cmx5cmx deep upto the bone on the right side of the head which was 7cm above the right ear.
2. Lacerated wound 1cmx.5cmx deep upto the skin below and inside the right ear.
3. Contusion 4cmx1.5cm behind the right shoulder joint.
4. Multiple firearm entry wounds in an area of 18cmx14cm. On the right side behind the back upwards upto the right shoulder joint. The diameter of each wound was 2cmx.2cmx deep up to the flesh and skin. The edges of the wound were bent inwards and dry blood was collected on it. There was no blackness or burning
10. After closure of prosecution evidence the statement of appellant-accused was recorded under Section 313 Cr.P.C., in which the accused denied his involvement in the case. The appellant accused also stated in his statement under Section 313 Cr.P.C. that he has been roped in this case due to enmity.
11. After hearing the prosecution and the defence the learned trial Court has convicted the appellants under Section 307/ 34 of IPC and sentenced them to undergo imprisonment of life. The appeal stood abated against Rajani Pasi and Virendra Pasi appellant nos. 2 and 3 vide order dated 05.02.2025. The appeal survives in respect of appellant no.1 Budani Pasi.
12. The grounds taken in the appeal are that the learned trial Court has failed to appreciate the evidence and the judgement passed by the learned trial Court is against the weight of evidence on record and evidence has not been appreciated in the right perspective and the sentence awarded is too severe.
13. This Court is tasked with the duty to re-appreciate the evidence available on record and come to the conclusion whether the prosecution has been able to prove the charge against the appellant beyond the shadow of reasonable doubt before the trial Court and also whether the learned trial Court has appreciated the evidence available on the record in the right perspective and applied the law correctly.
14. Learned counsel for the appellants submits that the first information report has been lodged after deliberation and consultation and there is delay of four hours in lodging it.
15. Further, learned counsel for the appellants submits that the injuries found by PW-5 on the person of the injured do not correspond with the allegations made in the first information report as in the first information report, it has been alleged that PW-3, the injured Rajendra Maurya did receive fire arm injuries on his head.
16. Further contention of learned counsel for the appellants is that the place of occurrence as described by PW-3, the injured and PW-4, the eye witness Anil are contradictory.
17. He further submits that the incident took place at the spur of the moment and without premeditation and except injury no.4 all the injuries are simple in nature and even the injury no.4 shows radioscopic shadow.
18. He further submits that PW-5 the Doctor has not given opinion that injury no.4 was dangerous to life.
19. He further submits that the injury no.4 is not on the vital part of the injured.
20. He further submits that apart from firing one shot, there is no allegation of repetition of firing by surviving appellant no.1 Budani Pasi.
21. He further submits that the investigating officer of the case has not been examined.
22. He further submits that even if the prosecution story is found to be proved, the case falls under Section 324 of IPC and not under Section 307 IPC.
23. On the other hand learned AGA supports the judgment of learned trial Court and submits that injured PW-3 and eye witness PW-4 are wholly reliable and they are consistent in their statement regarding the role of surviving appellant.
24. Further contention of learned AGA is that the injuries sustained by the injured PW-3 clearly shows the intention of surviving appellant that he intended to kill the injured.
25. He further submits that the learned trial Court has rightly convicted and sentenced the appellant and the judgement and order impugned does not call for any interference by this Court.
26. The time of occurrence is said to be 04:30 P.M. on 07.07.2001 and its first information report has been lodged at 08:10 P.M. the same day. The police station is about 5 kms form the place of occurrence and PW-1, Shri Ram Maurya, the informant has explained in his examination-in-chief that when the incident took place, he was at Sampat Inter College, where Sunil informed him about the incident. On getting the information, he came home and enquired about the incident from his son and daughter-in-law and wrote a 'Tahrir' and thereafter, he went to the police station and lodged the first information report.
27. In the context of the above explanation given by the informant, the delay if any in lodging the first information report has been explained satisfactorily. This witness is not an eye witness.
28. PW-2 is a formal witness, who has proved the chik FIR and and the institution of the case in general diary as Ext. Ka 2 and K3.
29. PW-3 is the injured witness. This witness in his examination-in-chief has stated that the incident took place at 04:30 P.M. on 07.07.2001. When he along with his wife Sunita Devi, brother Anil and Sunil was digging the bushes in his brinjal field, when the goats of Budani Pasi entered the field and were causing damage to the crops. When he asked Budani Pasi about this, Budani Pasi, Rajani Pasi and Rajendra armed with country made pistol and lathies reached there and Rajani and Virendra exhorted Budani to kill him. On the exhortation Budani fired form his country made pistol which hit him on his right back near shoulder whereas Rajani and Virendra assaulted him by lathies. On uproar being raised, people from the village, reached there and they intervened. In cross-examination, this witness has stated that on hearing the noise of fire, many people reached there within 10 minutes and he did not fall unconscious forthwith after the incident and he saw the accused persons running towards east. After 15-20 minutes, he reached home, he fell unconscious.
30. This witness has further stated that Budani Pasi had loaded the country made pistol before him and he had stepped back and tried to save himself. This witness has further stated that Rajani and Virendra had given 2-3 lathi blows.
31. PW-4 has supported the prosecution case in his examination-in-chief.
32. This witness in his cross-examination has stated that people from the village reached there after 10 minutes of the incident of firing. This witness has further stated that his brother fell unconscious immediately after receiving fire arm injuries and regained consciousness when he reached home.
33. This witness has stated that Budani had opened fire from the distance of 15-30 feet whereas Rajani and Virendra had given 5-6 lathi blows. This witness has further stated that all the lathi blows were on the head of his brother.
34. This witness has given the description of the place of occurrence as the fig-tree towards east, neem treee towards west, nothing is towards north and pond towards south.
35. Though, there are contradictions in the testimonies of PW-3 and PW-4 to some extent regarding the place of occurrence and the injured falling unconscious but so far as their testimony regarding material particulars i.e. regarding firing of shot from country made pistol by appellant Budani Pasi and assault by lathi by deceased appellants Rajani and Virendra, is not in dispute.
36. It is natural that witnesses lose memory and they are not expected to give photographic description when their evidences are recorded after lapse of time before the trial Court.
37. The statement of PW-3 and PW-4 have been recorded after more than two years of the occurrence then such a minor discrepancy is likely to occur in their testimony.
38. Before proceeding further, it would be appropriate to take note of law laid down by Hon'ble Apex Court in respect of reliability of testimony of injured witness, in the case of Baljinder Singh @ Ladoo vs The State Of Punjab, AIR 2024 SC 4810, paragraph no.12 and 13 whereof are quoted below:-
"12. Also, it is worth indicating that P.W.3, P.W.4, and P.W.5 are "injured witnesses" or "injured eye-witnesses" in this case. The sworn testimonies provided by injuredwitnesses generally carry significant evidentiary weight. Such testimonies cannot be dismissed as unreliable unless there are pellucid and substantial discrepancies or contradictions that undermine their credibility. If there is any exaggeration in the deposition that is immaterial to the case, such exaggeration should be disregarded; however, it does not warrant the rejection of the entire evidence. Therefore, the suspicion raised by the appellants regarding the genesis of the case is rendered unfounded.
13. The abovementioned conclusion stands fortified with reference to paragraph 26 of the decision of this Court in Balu Sudam Khalde and Anr. vs. State of Maharashtra. The relevant passage is reproduced as under:
"26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
(emphasis supplied)
39. In the case of Rakshpal and Another vs. State of U.P. 2025 (2) ADJ 462 (DB), it was observed in paragraph no.24 as under: -
"24. In a recent judgement rendered by Hon'ble Apex Court in Neeraj Sharma vs. State of Chhattisgarh, (2024) 3 SCC 125 in respect of importance of injured witness in a criminal trial, the Hon'ble Apex Court has, in paragraphs 22 and 23, held as under:
"22. The importance of injured witness in a criminal trial cannot be over stated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as an extremely valuable evidence in a criminal Trial.
23. In the case of Balu Sudam Khalde v. State of Maharashtra 2023 SCC OnLine SC 355 this Court summed up the principles which are to be kept in mind when appreciating the evidence of an injured eye-witness. This court held as follows:
"26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
(Emphasis supplied)
40. In the opinion of the Doctor PW-5 injuries no.1,2 and 3 were simple in nature and could have been caused by hard and blunt object, whereas injury no.4 was kept under observation and X-ray was advised. In the X-ray report, 3 radioscopic shadows are found on the right side of the back of the injured, which could have been caused by three splinters.
41. On the overall appreciation of the evidence of the witnesses, PW-3,PW-4 and PW-5 the incident has been proved by the prosecution. Now the question arises as to under what section, the offence falls.
42. Faced with the above, learned counsel for the appellants has placed reliance upon the judgments of Hon'ble Supreme Court in the cases of Virsa Singh Vs. State of Punjab: 1958 AIR (SC) 465, Tukaram and Others Vs. State of Maharashtra (2011) 14 Supreme Court Cases 250, Abani K Debnath Vs. State of Tripura: 2005 LawSuit(SC) 1549, B.N. Kavatakar And Another Vs. State of Karnataka: 1994 Supp (1) Supreme Court Cases 304, Veeran & Ors. Vs. State of MP: 2011 LawSuit(SC) 391, Veeran & Ors. Vs. State of MP: 2011 LawSuit(SC) 391. He has further relied upon the judgment of High Court of Delhi in the case of Suresh Chand Vs. State of Delhi: 1971 LawSuit(Del)108. Lastly he has relied upon the judgment of this Court in the case of Aflatoon Vs. State of U.P. in Criminal Appeal No. 2108 of 2003.
43. An intention can be gathered from the existing facts and circumstances of the case. In this case, one shot has been fired by the appellant Budani Pasi, which hit the injured on the right side of his back near shoulder. The incident took place at the spur of moment and there was no premeditation and the Doctor PW-5 has not given any specific opinion that the injury no.4 of the injured PW-3, caused by fire arm, was dangerous to life. Even the doctor PW-5 has not given any opinion that injury no.4 was grievous in nature.
44. In the above view of the matter, the case of the appellant falls under Section 324 of the IPC instead of Section 307 of IPC. Consequently, the conviction of the appellant under section 307 /34 of the IPC is liable to be altered to Section 324 /34 IPC.
45. As per custody certificate, the appellant has already undergone incarceration of 9 months and 16 days. The incident took place in the year 2001.
46. Considering the above facts and circumstances of the case, the sentence of the appellant is fit to be modified to the period already undergone for the offence under Section 324/34 of IPC.
47. Thus, with the above modification, the appeal is partly allowed.
48. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.
49. Let a copy of this order be communicated by the Registrar (Compliance) to the Chief Judicial Magistrate, Fatehpur, for compliance forthwith.
Order Date :- 25.07.2025
RKM
