Krishna vs State of U.P.

G.B. Singh, J.—This is an appeal against the conviction and sentence of Krishna, Appellant for the offence u/s 307 IPC.

The case of the prosecution was that Krishna, Appellant on 29-11-1985 at about 4-30 P. M. in front of the office of Executive Engineer Hydel Department Sultanpur Police Station Kotwali Sultanpur fired country made pistol upon Vinod Kumar and thereby caused several fire arm injuries to him. On the alarm raised Krishna and his associates ran away. The occurrence was seen by several persons present on the spot. It was also the case of the prosecution that Jagannath Lai father of Vinod Kumar injured, on one hand, and Avanendra Pratap Singh and Surendra Pratap Singh, on the other, are on litigating terms since long. Jagannath Lai won some of the cases against the two persons on account of which they were harbouring ill-will against him and his sons Vinod Kumar and Sudhir Kumar. Vinod Kumar is a Revenue Clerk in the office of the Executive Engineer Hydel Department Sultanpur whereas his elder brother Sudhir Kumar is Lekhpal in Tahsil Sadar. Shailendra alias Pappu son of Surendra Pratap Singh is a bad character. Krishna accusel is his associate. Krishna attempted to commit murder by firing country made pistol at the instance of Shailendra alias Pappu. On 29-11-1985 at about 4 30 P. M. Sudhir Kumar had come to the office of Vinod Kumar to inform him that he was going on Partal and so he would not go to home. Vinod Kumar had come out of the office to leave his brother and while proceeding towards north from the office with that object, Krishna fired country made pistol upon him.

The first information report was lodged by Vinod Kumar injured at the Police Station Kotwali Sultanpur on the same day at 5-00 P.M. On that report a case u/s 307 IPC was registered and Vinod Kumar was sent to District Hospital, Sultanpur for medical examination. His injuries were examined there on the same day at 5-20 P.M. by Dr. R.S. Agarwal PW 3. He found following injuries on his person:

* * * * *

All the injuries except No. 5 and 6 were kept under observation and X-ray was advised. Injury no 6 was found simple. Injury No. 5 was referred to Dental Surgeon as one of the incisor was found missing. According to Dr. R.S. Agarwal all the injuries were caused by gun shot and were fresh at the time of examination.

The case was investigated by S.I. Shyam Narain Singh PW 7. He was not present at the Police Station when the First Information Report was lodged. The papers were, therefore, received by him at Police out Post Lachmanpur. He at once proceeded to the place of incident, examined Sudhir Kumar Srivastava and Ram Tilak Singh witnesses. He then inspected the place of incident and prepared its site-plan. He found blood stains at the place of incident. He, therefore, took blood stained and non-blood stained earth from there and prepared its Fard. He then came to the District Hospital Sultanpur and interrogated Vinod Kumar there. On 30-11-1985 he interrogated other witnesses. He made several attempts to arrest the Appellant but he was not found at his house. The Investigating Officer, therefore, obtained processes under Sections 82/83 Code of Criminal Procedure against the Appellant and executed them. The Investigating Officer after completing investigation submitted charge-sheet.

On behalf of the prosecution, seven witnesses were examined. Durga Prasad PW 1, Ram Tilak Singh PW 2, Sudhir Kumar PW 4 and Vinod Kumar p.v 6 are witnesses of the occurrence. Dr. R.S. Agarwal PW 3 examined injuries and Clerk Constable Shafi Ahmad PW 5 prepared chik report on the basis of the written report made by Vinod Kumar and made entry in the G. D, S.I. Shyam Narain Singh PW 7 investigated the case.

The accused admitted that he is an associate of Shailendra alias Pappu. He stated that on account of this association he has been falsely implicated in the case. He further stated that the witnesses did not know him and he was named in the First Information Report at the instance of one Shri Krishna Chandra Srivastava, Advocate. He did not give any evidence in defence.

Learned Sessions Judge, believed the prosecution case and convicted and sentenced Krishna, Appellant u/s 307 IPC for five years rigorours imprisonment.

It was argued by the learned Counsel for the Appellant that there was no reliable evidence against the Appellant and he has been wrongly held guilty for the offence u/s 307 IPC. I do not find any force in this contention.

The prosecution examined four witnesses to prove that fire arm injury was caused by the Appellant. Out of them Durga Prasad PW 1 and Ram Tilak Singh PW 2 turned hostile. They did not stale that the Appellant was the assailant. Their statements, however, show that the occurrence took place in front of the office of the Executive Engineer Hydel, Sultanpur at about 4-30 P.M. as is the case of the prosecution. Sudhir Kumar PW 4 and Vinod Kumar PW 6 have made consistent statement that Krishna Appellant was the assailant and it was he who caused fire arm injuries to the victim. Learned Counsel for the Appellant assailed the testimony of Sudhir Kumar PW 4 mainly on two grounds. One of them is that he is elder brother of the victim and on account of this relationship he could state falsehood. The other ground is that his presence is not noted in the General Diary In my opinion both these grounds have no substance. Relationship by itself is not sufficient to discard the evidence of a witness as unworthy of credit in the absence of other circumstances to detract from the evidentiary value of his testimony. If his testimony is supported by medical evidence and other circumstances and has no ill-will or hostility against the accused, the evidence of such a witness can be believed. In the present case Sudhir Kumar has no motive to make false statement against the Appellant. It is undisputed that the First Information Report was scribed soon after the occurrence. It is significant to note that Sudhir Kumar PW 4 is the scribe of that written report. After scribing the report he handed it over to Vinod Kumar and he lodged it at the Police Station. In view of this if he was not with Vinod Kumar at the time of the recording of FIR and his name does not find place in the General Diary it cannot be said that he was not present at the time of incident. In the First Information Report, his presence has been clearly mentioned. His statement is consistent with the medical evidence. It is true that he did not state before the Investigating Officer that he had gone to the office of Vinod Kumar to inform him that he was going on Partal but this circumstance cannot be much emphasised in view of the fact that it has been mentioned in the First Information Report that at the relevant time Vinod Kumar was going along with his brother to see him off. Similar statement was made by Vinod Kumar and Sudhir Kumar during investigation. Thus, there is nothing suspicious in the statement of this witness making him unworthy of credit. His office is at a very short distance. He could, therefore, go to the office of his brother to inform him about his programme so that family members may not wait for him after office hours. The statement of Sudhir Kumar PW 4 cannot, therefore, be discarded. Vinod Kumar PW 4 has also stated that the Appellant was the assailant. His statement has remained consistent, in his cross-examination and there is no reason to disbelieve him. It has been stated by Sudhir Kumar PW 4 and Vinod Kumar PW 6 that they knew the Appellant before the occurrence. They have given necessary details in this connection and it is difficult to disbelieve them on this point It may, however, be added here that the accused though stated in his examination that the witnesses did not know him before the occurrence, did not claim any identification This conduct of the accused also goes in favour of the statement of these witnesses that they knew him prior to the occurrence. Thus, there is reliable evidence of two witnesses in support of the prosecution case.

The first information report was lodged without any delay. The version contained in it corroborates the statement of Vinod Kumar PW 6. The injury report is also consistent with the oral evidence. The Investigating Officer found blood stains on the spot. The time and place of incident has not been seriously disputed in cross-examination of the prosecution witnesses. The statement of the accused that he is an associate of Shailendra alias Pappu and the unchallenged statement of Sudhir Kumar PW 4 and Vinod Kumar PW 6 that Shailendra alias Pappu and his family members are ill-disposed towards him also made the prosecution case believable. All these facts clearly support the oral testimony of the two eye witnesses of the occurrence.

From the above discussion it is clear that the learned Sessions Judge rightly believed the case of the prosecution that fire arm injuries to Vinod Kumar were caused by Krishna Appellant as alleged by the prosecution.

The next point pressed by the learned Counsel for the Appellant is that even if the case of the prosecution is held to be proved, Krishna Appellant can be held guilty for the offence punishable u/s 324 IPC and he cannot be punished for the offence u/s 307 IPC. I do not find any force in this contention also.

Section 324 IPC deals with causing of simple hurt by dangerous weapon or means whereas Section 307 IPC applies to cases in an attempt to commit murder whether hurt is caused or not. Just because the offender used a dangerous weapon, he cannot be deemed to have acted with intent of causing death. In other words there can be no presumption that the accused intended to cause death merely because he used a dangerous weapon to cause hurt. Thus, the question if the accused attempted to commit murder by causing hurt or intended to cause simple hurt must be determined by the nature of the act actually committed and from the surrounding circumstances.

The intention is generally reflected by the consequence of what the accused has done. Where the accused fired pistol from close range aiming at upper part of the body of the victim it can be presumed that he intended to commit murder or had knowledge as contemplated by Section 307 IPC. In order to bring the offence u/s 307 IPC home to the accused, the prosecution must establish that his intention or knowledge was of the description mentioned in Section 300 IPC. If the act is capable of causing death or is sufficient to cause death, the fact that only minor injuries resulted from the act or that no injury resulted at all is not relevant for the purpose of deciding whether the act of the accused is or is not an attempt to commit murder. What is material is the intention or knowledge and not the consequence of the actual act done for the purpose of carrying out the object.

In the present case it is established by satisfactory evidence that Krishna Appellant fired country made pistol a dangerous weapon at Vinod Kumar and thereby caused multiple gunshot injuries to him. The injuries were caused on the face which is a vital part of the body. Vinod Kumar Srivastava has clearly stated that the Appellant opened fire from a distance of about 4 or 5 paces coming from opposite direction. This statement was not challenged in cross-examination of Vinod Kumar PW 6. It is, therefore, proved that the Appellant opened lire from a close range. It has been stated by Dr. R.S. Agarwal PW 3 that the injuries caused were dangerous for life. The statement of Dr. R.S. Agarwal PW 3 about injury No. 5 coupled with the unchallenged statement of Sudhir Kumar PW 4 and Vinod Kumar PW 6 that one of the incisors of the victim was uprooted by the fire arm injury, clearly show that not only simple but grievous injuries were also caused to the victim.

It is true that the supplementary report of Dental Surgeon and X-ray report were not obtained and proved but from the statements of the aforesaid three witnesses there is no room for doubt that in the assault simple as well as grievous injuries were caused to the victim. It is true that the accused did not make any declaration at the time of the assault and he had no direct motive to commit the murder of Vinod Kumar but these facts do not necessarily lead to the conclusion that he had no intention to cause death. The other circumstance which have been mentioned above, clearly indicate that he had requisite intention. Even if it is assumed that the intention to cause death was not there, the aforesaid circumstances clearly show that the Appellant had knowledge that his act was imminently dangerous which, in all probability, could result in an injury likely to cause death. It may also be mentioned here that Vinod Kumar was moving alongwith his brother when the Appellant opened fire and, thus, the victim was not all alone and it fulfils the condition of fourth clause of Section 300 IPC. Thus, in any view of the matter the Appellant appears to be guilty for the offence of attempt to murder punishable u/s 307 IPC and it cannot be inferred that he had intention to cause simple injuries to the victim and is, thus, guilty for the offence punishable u/s 324 IPC.

Learned Counsel for the Appellant, in support of his argument that only an offence u/s 324 IPC has been proved, placed reliance upon two cases. One of them is Santoo v. State 1977 ACC 38. In this case simple injuries to the victim were caused by a Pharsa. They were on right side of skull and forehead and on two shoulders. On account of these injuries it was held that offence u/s 324 IPC alone was made out. No reason except that the injuries were simple has been assigned in this case why the case could not fall u/s 307 IPC. This case is undisputedly distinguishable on facts from the present case. The other case referred to is Farooq v. State of U.P. 1980 ACR 312. In this case one lacerated circular wound 1/4 cm � 1/4 cm � 1/2 cm deep was found on the back of head and the injury was declared simple and caused by country made pistol. It was held in this case that the accused as well as the victim were partners in the business and the assailant had no intention to cause death. In these circumstances it was held that a case u/s 324 IPC was made out and it was an offence u/s 307 IPC. In the present case as has been observed above, there are multiple fire arm injuries simple as well as grievous in nature. The manner in which the accused came from front side and fired on vital part of the victim from a close range causing thereby injuries to him and the facts which have been disclosed by the prosecution to show that the accused had motive to commit the crime clearly indicate that in the present case intention to cause death can be inferred from the circumstances of the case. Thus, both the cases relied upon by the learned Counsel for the Appellant do not help him much in showing that the. present case falls within the purview of Section 324 IPC and not Section 307 IPC.

In Sarju Prasad Vs. State of Bihar, the accused caused injury to the victim in a vital region with a knife. No vital organ of the victim had been cut. It was held that the fact that no vital organ of the victim had been cut, would not by itself be sufficient to take the act of accused out of the purview of Section 307 IPC. It has been further held in this case that in order to bring the offence u/s 307 IPC home to accused the prosecution must establish that the accused had the intention mentioned in Section 300 IPC and it is to be deduced from surrounding circumstances and the motive.

In Liyakat Mian v. State of Bihar 1973 Cri.L.J. 544 the accused fired at the victim from such a close quarters that had the victim died of the injury it would have been murder. On the basis of these facts it was held that the accused committed offence u/s 307 IPC as the knowledge of possible death could be legitimately imputed to him.

In Parcho Kewalrara v. Emperor AIR 1944 Sind 83 (Full Bench) the accused who was not an expert shot when pursued as a the if by the victim, fired at the victim and wounded him in the right leg. It was held that when the accused fired his revolver under the circumstances his act if death had followed, would clearly have fallen under the fourth part of Section 300 Penal Code, as it was an act so imminently dangerous that would in all its probability cause death or such bodily injury as likely to cause death. The case, therefore, falls within the purview of Section 307 IPC and not Section 324 IPC.

In Pohap Singh v. State of Uttar Pradesh 1956 AWR 49 it has been held that intention is the main ingredient of Section 307 IPC If the intention was to commit murder of the injured person and it was with that intention that the injured was shot at, there can be no doubt that the offence would fall u/s 307 IPC. It has been further held in this case that it is immaterial that the injuries which were caused to the injured were not of such a nature as to have caused her death or that they were merely simple hurts In this reported case the injured was shot at twice and the second shot was fired at the victim with a declaration that the injured had not died and should be fired at again. It was held that there was intention to kill and the offence committed was u/s 307 IPC.

In Rameshwar v. Emperor AIR 1935 Oudh 281 it has been held that intention or knowledge which is necessary to constitute murder may exist combined with an act which falls short of the complete commission of the offence. To justify a conviction u/s 307 IPC it is not essential that actual injury capable of causing death should have been inflicted although nature of the injuries caused may often give considerable assistance to a Court in coming to a finding as to the intention of the accused.

The observations made in all these cases show that intention or knowledge should be inferred from all necessary circumstances and not on the basis of the injury alone. When the facts of the case are considered in view of the principle of law laid down in these cases, it can be safely held that the Appellant committed an offence punishable u/s 307 IPC and not u/s 324 IPC.

The last point pressed by the learned Counsel for the Appellant is that the sentence passed is severe. I do not find any substance in this contention also. The Appellant opened fire without any provocation. It was a premeditated and daring act. It was committed in front of a public office. The question of sentence depends upon the facts of the particular case. The learned Sessions Judge has given satisfactory reasons in awarding the sentence of Five years R.I. In my opinion Five years R.I. is not too severe a sentence to be interfered with in appeal.

The appeal has, therefore, no force. It is accordingly dismissed. The conviction and sentence of Krishna Appellant for the offence u/s 307 IPC are maintained. He is in Jail. He shall serve out the sentence.