Nandan and Others vs State of U.P.

Sri Kant Tripathi, J.—Heard Mr. Jai Narayan, the learned Counsel for the Appellant Nos. 1 and 3 andv, Shrikishan and Subedar have preferred this appeal against the common judgment and order dated 3.2.1982 rendered by Shri K. M. Chaturvedi, the then vIth Additional Sessions Judge, Fatehpur in Sessions Trial No. 414 of 1980 and Sessions Trial No. 83 of 1981, whereby he has convicted the Appellants u/s 307/34, I.P.C. and sentenced each of them to undergo rigorous imprisonment of seven years.

According to the prosecution story, in the night between 12/13 October, 1979, the complainant Jagannath alias Bhagat alongwith his son P.W. 1 Sohan Lal had gone for watering his paddy field from the canal within the limit of village Suswan Buzurg. After watering the field, when the complainant and his son were coming back and reached in front of the field of one Nathuwa at about 1.30 a.m., the Appellant No. 2 Chhedu duly armed with a gun, the Appellant No. 4 Subedar duly armed with a country made pistol and the Appellant No. 1 Nandan and the Appellant No. 3 Shrikishan duly armed with lathi arrived there all of a sudden and on the exhortation given by the Appellant No. 3 Shrikishan, the Appellant No. 2 Chhedu and the Appellant No. 4 Subedar fired at the complainant Jagannath alias Bhagat with their respective fire arms. Consequently the complainant sustained fire arm injuries. On hearing alarm, the witnesses Deonath and Girdhari arrived at the place of occurrence and witnessed the occurrence. The complainant Jagannath alias Bhagat lodged the F.I.R. (Exhibit Ka-1) at the police station Asothar in the next morning at about 5.00 a.m., on which basis the police registered the case and proceeded to make the investigation.

The injured Jagannath alias Bhagat was medically examined at P.H.C. Asothar, district Fatehpur on 13.10.1979 at about 11.30 a.m. The following injuries were found on his person:

Multiple gun shot wounds in an area of 13" x 14" over the right side face (wounds of entry) lateral portion of the right side forehead and on right side head and back of the right side ear. In shape few are oval and few are rounded. The edges are inverted inner ragged and size varying from 0.2 cm. x 0.2 cm. to 0.2 x 0.1 cm.

The doctor who medically examined the injured, was of the view that the injuries were caused by some fire arm, whose duration was half a day. He further opined that the injury was simple in nature.

No x-ray was done in spite of the advice of the doctor.

P.W. 2 Amar Singh investigated the case and after completing the investigation, submitted the charge-sheet against the Appellants.

The Appellants Chhedu and Subedar were charged u/s 307, I.P.C. whereas other two Appellants Nandan and Shrikishan were charged u/s 307, I.P.C. read with Section 34, I.P.C.

The Appellants denied the charge and claimed to be tried.

During the trial, the prosecution examined only two witnesses to prove the charge. P.W. 1 Sohan Lal is the son of the complainant-injured, who was present alongwith the injured at the time of the incident. This witness has proved the F.I.R., Exhibit Ka-1 and also supported the prosecution story in the witness box. P.W. 2 Amar Singh is the Investigating Officer. He has proved the charge-sheet and other formal papers and his evidence is of formal nature.

The learned Additional Sessions Judge has examined all the Appellants u/s 313, Cr. P.C. The Appellants have stated that they have been falsely implicated due to enmity.

The learned Additional Sessions Judge found that the sole statement of P.W. 1 Sohan Lal, which was duly corroborated by the medical evidence, was believable. The learned Additional Sessions Judge further found that there was moon light at the time of the incident and the eye-witnesses were in a position to identify the assailants in that light. It may not be out of context to mention that the learned Counsel for the Appellants admitted genuineness of the injury report during the trial and as such the injury report was admissible in evidence u/s 294 of the Cr. P.C. In this view of the matter the learned Additional Sessions Judge placed reliance on the injury report and found that the same had corroborated the statement of P.W. 1 Sohan Lal.

The injured complainant Jagannath alias Bhagat could not be examined during the trial due to the reason that he had been allegedly murdered by one of the Appellants. The other two eye-witnesses, namely, Deonath and Girdhari were also not examined during the trial.

The Appellant No. 2 Chedu and the Appellant No. 4 Subedar have died during the pendency of the appeal. Accordingly the appeal abated against them.

The learned amicus curiae for the Appellants No. 1 and 3 submitted that there is no evidence against the Appellants. The role of assaulting the injured with fire arm has been assigned to the deceased co-accused Chhedu and Subedar. It is nowhere stated that the Appellants No. 1 and 3 also assaulted the injured. According to the prosecution, the role of exhortation has been assigned to the Appellant No. 3 Shrikishan but no role whatsoever has been assigned to the Appellant No. 1 Nandan. The learned amicus curiae further submitted that the injuries sustained by the injured were simple in nature and could be caused with a single fire. If the Appellants had any intention to kill the injured and made the firing with that intention, they were in a position to kill the injured and could cause more injuries but they did not do so, which reveals that the intentions of the Appellants were not to kill the injured and were merely to cause some injury. It was also submitted that the presence of P.W. 1 Sohan Lal at the time of the incident was doubtful due to the reason that he was neither assaulted by the Appellants nor sustained any injury. According to the learned amicus curiae, both the Appellants No. 2 and 4 are alleged to have made firing on the injured but according to the medical report only one fire arm injury was found on the person of the injured. It was also submitted that the Appellant No. 1 Nandan has been falsely implicated due to being a relative of the Appellant No. 4 Subedar.

The learned A.G.A. on the other hand, submitted that the statement of P.W. 1 Sohan Lal was believable and could not be shaken despite lengthy cross-examination and his statement finds corroboration from the medical evidence.

The presence of P.W. 1 Sohan Lal at the time of the incident cannot be held to be doubtful only on the ground that he had not sustained any injury nor was assaulted by the Appellants. It appears that the Appellants had some inimical terms with the father of the P.W. 1 Sohan Lal and wanted to assault him and had proceeded to the place of occurrence with that intention. In this view of the matter, if the Appellants had chosen the injured only and assaulted him and P.W. 1 Sohan Lal was not targeted, it cannot be contended that the presence of P.W. 1 Sohan Lal at the time of occurrence was doubtful. The story narrated by P.W. 1 Sohan Lal regarding the incident in question finds full corroboration from the medical report (Exhibit Ka-6), whose genuineness was admitted by the learned Counsel for the Appellants. Moreover, the F.I.R. Exhibit Ka-1 was very prompt and was lodged in the next morning at about 5.00 a.m. without any delay, in which the factum of the incident has been elaborately stated which has been duly supported by P.W. 1 Sohan Lal.

The learned Additional Sessions Judge has repelled all the contentions raised on behalf of the Appellants and found that the statement of P.W. 1 Sohan Lal was believable. I do not find any reason to take a different view and agree with the finding recorded by the learned Additional Sessions Judge. The Appellants, the complainant and his son P.W. 1 Sohan Lal were known to each other from before the occurrence and in this view of the matter P.W. 1 Sohan Lal was in a position to identify the Appellants in the moon light.

The contention of the learned Counsel for the Appellants that no offence u/s 307, I.P.C. is made out seems to have some substance. In the case of Rekha Mandal and Ors. v. State of Bihar 1967 CAR 108, the Apex Court has held that Section 307, I.P.C. requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge. In that case the fact that the injuries were not dangerous to life was also taken into consideration for holding that no offence u/s 307, I.P.C. was made out.

The Appellant Chhedu and Subedar are said to have made only one shot and the injured had sustained only one injury, which was simple in nature. None of the Appellants made any attempt to cause any further injury to the injured despite that they were not only in a position to cause serious injuries to the injured but also they could cause more injuries but they did not do so and felt satisfied with only one simple injury. These facts and circumstances do not support the case that the assault on the injured was made with such intention or knowledge or under such circumstances that if the injured had died, the Appellants would have been guilty of committing the offence of murder.

Keeping in view the facts and circumstances of the case and nature of injuries sustained by the injured, I am of the view that only an offence u/s 324, I.P.C. is made out against the Appellants. In view of the fact that the injuries to the injured were caused by Appellant No. 2 Chhedu and Appellant No. 4 Subedar and both of them have died and the Appellant No. 1 Nandan and Appellant No. 3 Shrikishan had merely shared the common intention, it would be proper to convict and sentence the Appellant No. 1 Nandan and Appellant No. 3 Shrikishan u/s 324, I.P.C. read with Section 34, I.P.C. instead of Section 307, I.P.C. read with Section 34, I.P.C.

In regard to the quantum of sentence the learned amicus curiae submitted that the Appellant Nos. 1 and 3 have been in jail for some time and now they have become more than 80 years of age. The occurrence is of the year 1979 and since then more than thirty years have elapsed, therefore, the learned amicus curiae, keeping in view these facts, submitted that the Appellants No. 1 and 3 may not be sent again in jail and they be awarded the sentence of fine only. In my opinion, this submission has sufficient merit. After a gap of about 30 years it is not proper to send the Appellants in jail in the old age of more than eighty years.

For the reasons stated above, the appeal is partly allowed. The conviction and sentence recorded against the Appellant No. 1 Nandan and the Appellant No. 3 Shrikishan u/s 307 read with Section 34, I.P.C. are set aside. Instead, each of these two Appellants is convicted u/s 324 read with Section 34, I.P.C. and is sentenced to imprisonment for the period already undergone and also to pay a fine of Rs. five thousand and in default of payment of fine to undergo a further rigorous imprisonment of six months.

Let a certified copy of this order alongwith the lower court record be transmitted to the Sessions Judge, Fatehpur for compliance.

A sum of Rs. 7,000 (seven thousand only) shall be paid as fee from the State Exchequer to Dr. Abida Syed, the learned amicus curiae.