Mandoo Singh vs State of U.P.

I.P. Singh, J.—Mandoo Singh, convict-Appellant, has preferred this appeal against the judgment and order of Sri V.M. Kher, IV Additional Sessions Judge, Etah, dated 27-10-1978 in State v. Mandoo Singh, S. T. No. 213 of 1976 convicting and sentencing him u/s 307 IPC to seven years'' RI.

The prosecution case is that about four days before the occurrence of 20-1-1975 one Dan Sahai Garhariya r/o village Tunda P. S. Anwapur, district Etah, lost his he-goat. He suspected that it was stolen away by one Luxman Jatav of village Samaspur Degri. On 20-1-1975 a Panchayat was held at the house of Pancham Pradhan in village Samaspur at about 1 P. M. This Panchayat was attended by Dan Sahai accompanied by Khub Chandra complainant (PW 1), Zalim Singh and Karan Singh on the one side and by Luxman Jatav accompanied by Mandoo Singh accused on the other side. Many others were also in the said Panchayat. Dan Singh had placed the price of said he-goat at Rs. 100/-. However, in the said Panchayat Mandoo Singh accused suggested to Dan Sahai to accept Rs. 20/- only from Luxman Jatav. Dan Sahai remonstrated that the said offer was too low and it should at least be Rs. 50/-. Mandoo Singh accused became enraged. Khub Chandra complainant taking side of Dan Sahai told Mandoo Singh accused not to show temper. At this Mandoo Singh accused started hurling abuses at the complainant Khub Chandra. He retorted and told him to stop abusing him. At this Mandoo Singh accused is said to have taken out a country-made pistol from his Phent and fired it at Khub Chandra complainant. Its pellets hit on both thighs of the complainant. The accused ran away. The complainant later, on the same day, at 4 P. M. lodged oral FIR at P. S. Anwapur, four miles away from village Shamshapur Degri where the incident had taken place. In the FIR the accused-Appellant was named as his assailant having fired one shot from his country-made pistol at him.

The Appellant denied the occurrence and pleaded his false implication in this case at the hands of the complainant and his witnesses in collusion with the police. He did not lead any evidence in defence.

The prosecution in order to establish their case examined five witnesses including three eye-witnesses, namely, Khub Chandra complainant (PW 1), Dan Sahai (PW 2) and Malik (PW 3). The other two are Dr. R.R. Sharma (PW 4) who medically examined Khub Chandra complainant on 21-1-1975 at 3 p.m. He had recorded gunshot wounds of entry under two items-one on the right thigh and the other on the left thigh. These wounds were on the inner side of the thighs. These wounds were pellet injuries measuring 2/10 cm. x 2/10 cm. On the left thigh there was only one wound of that size but on the right thigh there were 12 such wounds in an area of 12 cm. x 6 cm. All the wounds were simple and were caused by gunshot (firearm). There was no blackening or tattooing. Margins were inverted. At the time of examination those injuries were about one day old. The doctor (PW 4) has stated that there could be a margin of six hours either way in the duration of the said injuries. That fits in with the alleged hour of the occurrence.

Khub Chandra complainant (PW 1) in his examination-in-chief deposed in line with the prosecution case. He is corroborated on all particulars by Dan Sahai (PW 2) and Malik (PW 3). Of course, Malik (PW 3) was not named as such in the FIR but he can be taken to be the person included in the term "Many other persons were present in the Panchayat" as mentioned in the FIR. Of course, there are minor discrepancies in the statements regarding price of the he-goat discussed in the Panchayat. To me those minor discrepancies are of no consequence and would not demolish the broader frame of the prosecution case. All these witnesses are unanimous in saying that when the complainant Khub Chandra and Appellant Mandoo Singh were heated up during Panchayat and were exchanging hot words, then Mandoo Singh Appellant had taken out his country-made pistol and opened fire at the complainant causing him hurts. There is nothing material in their statements which should discredit them.

The learned Counsel for the Appellant has pointed out that Khub Chandra complainant (PW 1) has admitted in his cross-examination that after he was hurt he fell unconscious. He regained consciousness only when he was taken to his village (by others). He further stated that he met Dan Sahai, Karan Singh and Zalim Singh four days after return to his village from Etah hospital and prior to that they were with him at the Baithak of the Pradhan at the time of Panchayat. From this it is argued that the complainant had no occasion to meet the above-named persons specially Zalim Singh after he had become unconscious in the Panchayat till he had returned to his village from Etah hospital. The point stressed is that he had not met Zalim before lodging the FIR. It is further pointed out that in the earlier part of his cross-examination the complainant admitted that the name of Mandoo Singh Appellant was told to him by Zalim. The argument of the learned Counsel for the Appellant is that on his own showing the complainant did not know the name of the Appellant from before and had named him in the FIR on the information received from Zalim. After the incident he became unconscious. He had not met Zalim till he returned from Etah hospital. Then it certainly remains a mystery how he happened to name the Appellant in the FIR which was lodged on the day of the alleged incident. In this connection the learned Counsel for the State has pointed out that Khub Chand complainant has stated in his cross-examination that when the Panchayat was in progress many persons of village Degri were present whom he did not know. He further stated that he knew Mandoo Singh Appellant whose name was told to him by Zalim. He further went on to say that the name of the accused-Appellant was already told to him by Zalim when the dispute arose. Thus it is quite clear that it was during Panchayat that Zalim had told the name of the Appellant to the complainant. To my mind, there remains no ambiguity or doubt that the complainant did not know the name of the accused-Appellant at the time of lodging the FIR.

After appreciating the evidence of the prosecution witnesses as discussed above I confirm the finding of the learned Sessions Judge that it was the Appellant who had fired his tamancha at the complainant causing him firearm injuries on his thighs.

The question arises as to what offence he had committed. The evidence on record shows that there was no premeditation on the part of the Appellant to murder the complainant by opening tamancha fire at him. The entire incident happened all of a sudden. The Appellant fired at the complainant during the heat of the moment when hot words were exchanged. No doubt, the weapon used is a country made pistol but the other factor to be taken into account for arriving at a decision about the offence committed are the seat of the injury and the nature of the injury caused. Thighs are not vital parts of the body. Thus the Appellant did not choose a vital part of the body of the complainant to shoot at. The injuries caused were simple in nature. Only one shot was fired. No attempt was made to fire the second shot. There was no enmity existing between the two. Under the circumstances, taken all together, the necessary intention required u/s 307 IPC cannot be imputed to the complainant. Similarly the necessary knowledge required u/s 307 IPC also cannot be attributed to him. For these reasons the Appellant cannot be held guilty of the offence punishable u/s 307 IPC. At best since he had caused simple hurts by a firearm the only offence for which he can be held responsible falls u/s 324 IPC. The maximum sentence under that section is three years.

At this stage the learned Counsel for the Appellant has argued that the circumstances of the case would justify to take a lenient view in the matter of sentencing the Appellant. His contention is that the ends of justice will be met if he is sentenced to the imprisonment already undergone. But I am not convinced with this approach. The learned Sessions Judge in his judgment observed:

Mandoo Singh is certainly not a person of good character. On his own showing he was prosecuted in another case of Section 307 IPC prior to this case. He has already been convicted in some other case recently and appears before me as a convict. So, he has a criminal record. In addition, when he carries an unlicensed country-made weapon he can certainly not be called a law-abiding person....

With the above antecedents the Appellant certainly does not deserve leniency in terms as advocated by his counsel. To my mind, in the overall circumstances of the case ''the ends of justice will be met if he is sentenced to one year R. I. u/s 324 IPC.

The appeal partly succeeds. The conviction and sentence recorded by the learned Sessions Judge u/s 307 IPC to seven years'' R. I. are set aside. Instead he is convicted and sentenced u/s 324 IPC to one year''s R. I. The Appellant is on bail. His bail bonds are cancelled. He shall surrender to his bail bonds to serve out the above sentence. He shall be taken into custody forthwith.