State of U. P. vs Satyavir Singh

S.C. Nigam, J.—Under challenge is the judgment and order dated 6.11.1980, passed by Ist Additional Sessions Judge, Bulandshahr in Criminal Appeal No. 99 of 1979, Satyavir Singh v. State of U. P., by which the conviction and sentence of accused-Respondent u/s 307, I.P.C. and Section 27 of Arms Act were set aside, which was passed in S.T. No. 328 of 1976, State v. Satyavir Singh'' by Assistant Sessions Judge, Bulandshahr vide judgment and order dated 21.5.1979. Vide impugned judgment and order dated 6.11.1980, the accused-Respondent was convicted for the offence punishable u/s 25(1)(a), Arms Act and sentenced to imprisonment till rising of the Court.

Bhanu Prakash Sharma, the first informant has also preferred a Criminal Revision No. 168 of 1981 against the judgment and order dated 6.11.1980, passed in Criminal Appeal No. 99 of 1979, Satyavir Singh v. State of U. P.

Since both the Government appeal and criminal revision arise out of the same common judgment and order dated 6.11.1980, they are disposed of by the common judgment and order.

The prosecution story as unfolded during the trial is that the fields of the farmers of the village Niwari were irrigated from the tube-well of Prahalad Singh Thakur, which was installed in village Niwari. In course of time, the road was constructed for the Power House due to which some farmers of village Niwari started irrigating their fields from the tube-well of Bhanu Prakash Sharma, resident of village Jairampur Bangar. This was not bearable to accused-Respondent, who is son of said Prahalad Singh Thakur. The accused-Respondent felt enmity with the first informant over it. It is alleged that the first informant Bhanu Prakash Sharma on 9.2.1975 at about 2.30 p.m. was taking tea in the hotel of Hamid Khan, which is situated at chauraha of the village. Sri Dharam Prakash, brother of the first informant, in the meantime, came there from the side of Narora Bus Stand. The accused-Respondent on seeing Dharam Prakash (P.W. 3) challenged him by saying that how he was irrigating the fields of the villagers of his village from his tube-well. It is further alleged that the accused-Respondent was armed with a licensed gun of his brother. The accused-Respondent in order to kill Dharam Prakash (P.W. 3) opened two fires at him, which caused injuries on his left hand. This occurrence was seen by first informant Bhanu Prakash Sharma (P.W. 1), Rama Shankar (P.W. 4), Brij Bhushan, Narendra Chand, Prem Shankar, Tej Pal Panda and Nand Kishore. The accused-Respondent was arrested by these witnesses alongwith his gun. The accused-Respondent and the injured Dharam Prakash were carried to the police station by the first informant and the witnesses. The first informant gave a written report (Ext. Ka-1) to the police station Dibai on 9.2.1975 at about 16.5. hours on the basis of which a criminal case bearing Case Crime No. 87 of 1975 u/s 307, I.P.C. and Case Crime No. 3 of 1975 u/s 25 of Arms Act were registered against the accused-Respondent and the F.I.R. (Ext. Ka-2) was prepared.

Dharam Prakash Sharma was medically examined on 9.2.1975 at about 4.35 p.m. by P.W. 5 Dr. Suresh Chandra Singh. The following injuries were found on the person of Dharam Prakash Sharma (P.W. 3):

INJ.: (1) Lacerated wound 1 cm. x 1 cm. x thickness of the left upper arm, on the left upper arm front aspect in upper part. There are four abrasions each 1/4 cm. x 1/4 cm. on its lower and outer aspect. Suspected underneath. Adv. x-ray. The margins of the wound are inverted.

(2) Lacerated wound 1.5 cm. x 1.5 cm. x thickness of the left upper....on the back aspect of the left upper arm 2 cm. above the elb.. Suspected underneath. Adv. X-ray. The margins of the wound are inverted.

(3) Lacerated wound 7.5 cm. x 3.5 cm. on the left forearm upper half-inner aspect. It is bone deep. Suspected fracture underneath. Adv. x-ray.

The injuries of Dharam Prakash (P.W. 3) were x-rayed by Dr. A. K. Agarwal (P.W. 8). P.W. 7 Dr. Jitendra Sharma was posted as Medical Officer in District Hospital, Bulandshahr in the year 1975. He has referred the injured for his treatment to Dr. S. C. Singh. The injured Dharam Prakash remain admitted in the hospital from 9.2.1975 to 20.3.1975 in connection with his treatment. Dharam Prakash (P.W. 3) was treated by Dr. S. C. Singh.

The x-ray report of injured Dharam Prakash indicates that there were multiple radio opaque shadows in upper 1/3rd of the left arm and multiple rounded radio opaque shadows (pellets) in lower 1/3rd of left arm. There were multiple rounded radio opaque shadows (pellets) in left elbow with fracture of upper left radius.

The investigation of this case was entrusted with Banwari Lal Gautam (P.W. 6). He was then posted as Sub-Inspector of Police in outpost Ram Ghat, police station Dibai, district Bulandshahr. He had recorded the statements of Prem Shankar, Brij Bhushan, Nand Kishore and Tejpal on 10.3.1975. He has inspected the place of occurrence and had prepared its site plan (Ext. Ka-6). He recorded the statement of injured Dharam Prakash (P.W. 3) in District Hospital. After completing the investigation, he submitted the charge-sheet against the accused-Respondent.

The accused-Respondent was medically examined on 9.2.1975 at about 5.45 p.m. by Dr. Suresh Chandra Singh. The following injuries were found on the person of accused-Respondent Satyavir:

INJ.: (1) Swelling 5 cm. x 5 cm. on the right side of front of face and nose. There is clotted blood in both nostrils. Red in colour Adv. X-Ray.

(2) Swelling 2 cm. x 1/2 cm. on the left cheek lower jaw. Adv. X-Ray red in colour.

(3) Abrasion 1/5 cm. x 1/5 cm. on the front of the right knee joint. Oozing stopped.

The accused-Respondent had also given a written report in the police station Dibai, district Bulandshahr on 9.2.1975 at about 5.00 p.m., on the basis of which a criminal case bearing Case Crime No. 27A of 1975, u/s 394, I.P.C. was registered against Bhanu Prakash, Dharam Prakash, Rama Shankar and one unknown person and the F.I.R. was prepared. The defence story as unfolded in the F.I.R. made by accused-Respondent is that Pandit Raghunandan Prasad, resident of village Jairampur Bangar had a tube-well in the village. Later on the accused-Respondent installed a tube-well in his own village, i.e., Niwari. The accused-Respondent started giving water to the farmers from his tube-well for a lesser price due to which the farmers started taking water from his tube-well. This affected the income of Pandit Raghunandan Prasad. This caused annoyance to him. On 9.2.1975, the accused-Respondent was carrying the gun of his brother Vijay Pal Singh to Narora. When he reached in front of the tea shop of Hamid Khan, situated in village Jairampur Bangar, Bhanu Prakash, Dharam Prakash, Rama Shankar and one unknown person met him. They started snatching his gun. The fire made from his gun accidentally due to this snatching, which caused injury to Dharam Prakash. He was beaten and his gun was snatched. This occurrence is said to have taken place at about 2.30 p.m.

The charge u/s 25/27, Arms Act and Section 307, I.P.C. was framed against the accused-Respondent. He pleaded not guilty to the charge and claimed to be tried.

The accused-Respondent was tried by Assistant Sessions Judge, Bulandshahr vide S.T. No. 328 of 1976, State v. Satyavir Singh. He was found guilty u/s 307, I.P.C. and u/s 27, Arms Act. He was sentenced to three years R.I. u/s 307, I.P.C. and two years R.I. u/s 27, Arms Act. Both the sentences were ordered to run concurrently.

The accused-Respondent preferred a Criminal Appeal No. 99 of 1979, Satyavir v. State of U. P. against the judgment and order dated 21.5.1979, passed in S. T. No. 328 of 1976. This criminal appeal was partly allowed vide judgment and order dated 6.11.1980, which is under challenge before us.

The prosecution, in order to prove its case, has examined Bhanu Prakash (P.W. 1). He is the brother of injured Dharam Prakash (P.W. 3). The accused-Respondent is resident of village Niwari, which is about 2 km. away from the village Jairampur Bangar. P.W. 1 Bhanu Prakash had a tubewell in village Jairampur Bangar. According to say of this witness, fields of the farmers of village Niwari were either irrigated from the Government tube-well or from his tube-well. The accused-Respondent installed tube-well in village Niwari in the year1972-73. The farmers of the village Niwari started irrigating their fields from the tubewell of accused-Respondent Satyavir, Later on the road was constructed from village Narora to Power House, which caused inconvenience to the farmers of village Niwari in taking water from the tube-well of accused-Respondent and they started irrigating their fields from the tube-well of first informant Bhanu Prakash (P.W. 1). This caused annoyance to the accused-Respondent. This witness has reiterated the contents of the F.I.R. in his deposition. He has stated that he caught hold of accused-Respondent after Dharam Prakash (P.W. 3) was injured by the fires made by the accused-Respondent. The accused-Respondent was also given beating by means of kicks and fists.

P.W. 2 Head Constable, Jagdish Prasad Kaushik has prepared the first information report on the basis of written report given by Bhanu Prakash Sharma (P.W. 1). He has stated that a gun and two spent cartridges were also deposited in the police station by the first informant. The gun and spent cartridges were taken into police custody and fard (Ext. Ka-3) was prepared. The disclosure of this case was made in G.D. No. 26 of the police station, the carbon copy of which is Ext. Ka-4.

P.W. 3 Dharam Prakash is an injured victim of this case. He has stated that he was fired at by the accused-Respondent. Two fires were made by the accused-Respondent, which caused injuries on his left upper arm. The gun of the accused-Respondent was snatched by the witnesses. The accused-Respondent was carried to the police station alongwith his gun.

P.W. 4 Rama Shankar has stated on oath that he was present on the date and at the time of the occurrence. He witnessed that the accused-Respondent was going to Narora from the side of village Niwari carrying the gun of his brother. P.W. 3 Dharam Prakash was coming from the other direction. The accused-Respondent fired at Dharam Prakash (P.W. 3) by means of the gun. The accused-Respondent was apprehended by them. Dharam Prakash (P.W. 3) was bleeding.

Dr. Suresh Chandra Singh (P.W. 5) has medically examined Dharam Prakash (P.W. 3) on 9.2.1975 at about 4.35 p.m. He has also medically examined the accused-Respondent on 9.2.1975 at about 5.45 p.m.

P.W. 6 Banwari Lal Gautam is the Investigating Officer of this case.

P.W. 7 Dr. Jitendra Singh Sharma had referred the injured Dharam Prakash to Dr. S. C. Singh for his treatment. The injuries of Dharam Prakash (P.W. 3) were also x-rayed. He has stated that the injured remain admitted in the hospital from 9.2.1975 to 20.3.1975 in connection with his treatment.

P.W. 8 Dr. A. K. Agarwal was the radiologist in District Hospital, Bulandshahr, who had x-rayed the injuries of P.W. 3 Dharam Prakash. He has stated that the patient was referred to him by Dr. Jitendra Singh Sharma.

The statement of the accused-Respondent u/s 313, Cr. P.C. was recorded. It has been admitted by the accused-Respondent that he had a tube-well in village Niwari. He has also admitted that the farmers of the village Niwari were irrigating their fields from the tubewell of Bhanu Prakash prior to 1972-73. After the installation of his tube-well in village Niwari, the farmers started irrigating their fields from his tube-well. He has also stated that after the construction of the road leading to the Power House some fields went towards village Jairampur from the road so constructed but the farmers of village Niwari continued to irrigate their fields from his tube-well. According to the accused-Respondent, the pulia was constructed at the time of construction of the said road.

The accused-Respondent has examined Vijay Pal Singh (D.W. 1). He is the brother of the accused-Respondent. He has stated that he has instructed the accused-Respondent on 9.2.1975 to come to Narora alongwith his licensed gun and licence. He has further stated that on the following day of the occurrence, he came to know that his licensed gun was snatched by Bhanu Prakash, Dharam Prakash, Rama Shankar and one unknown person on 9.2.1975 at about 2-21/2 p.m. The accused-Respondent was also beaten by them and was forcibly carried to the police station alongwith the gun.

We have heard learned Additional Government Advocate, Sri S.P.S. Raghav, learned senior counsel for the accused-Respondent at length and perused the entire record of this case.

It has come on record that the accused-Respondent had lodged the first information report on 9.2.1975 at about 5 p.m. in police station Dibai, district Bulandshahr against Bhanu Prakash, Dharam Prakash, Rama Shankar and one unknown person on the basis of which a criminal case bearing Case Crime No. 27A of 1975, u/s 394, I.P.C. was registered. The defence story as unfolded in this first information report is that on 9.2.1975 at about 2.30 p.m. the accused-Respondent was going to Narora alongwith the licensed gun of his brother. When the accused-Respondent reached in front of the tea shop of Hamid Khan situated at the chauraha of village Jairampur Bangar, Bhanu Prakash, Dharam Prakash, Rama Shankar and one unknown person met him. They started snatching the gun of his brother. During the course of snatching of the gun, the fire was made accidentally from the gun, which caused injuries to Dharam Prakash. The accused persons gave a beating to the accused-Respondent and snatched his gun.

It is thus, clear that the presence of accused-Respondent on 9.2.1975 at about 2.30 p.m. alongwith the licensed gun of his brother is established in front of the tea shop of Hamid Khan. It is also proved from the nature of the defence of the accused-Respondent that he was apprehended by the first informant Bhanu Prakash and other witnesses on the spot alongwith the licensed gun. It is also not in dispute that the accused-Respondent was carried to the police station alongwith the licensed gun. The accused-Respondent had some injuries on his person and therefore, he was referred by the police for his medical examination. On the reference made by police, the accused-Respondent was medically examined on 9.2.1975 at about 5.45 p.m.

It is being submitted by learned Counsel for the accused-Respondent that the accused-Respondent shall not go so close to the victim Dharam Prakash to fire upon him so that he could be apprehended by the witnesses. He would in all probability make the fire from some distance. It is being submitted by him that snatching of the gun from the accused-Respondent indicates that he was close to the victim Dharam Prakash when he was fired upon him. It is thus, contended that the story, as put up by the prosecution, is not at all probable and the fire was accidentally made from the gun of accused-Respondent, when Bhanu Prakash, Dharam Prakash, Rama Shankar and one other tried to snatch the gun of the accused-Respondent.

On the other hand, it is being submitted by learned Additional Government Advocate that after the fires were released from the gun of the accused-Respondent and it became empty, it was snatched from him.

It is being submitted by learned Counsel for the accused-Respondent that there was no motive for the accused-Respondent to open fire at Dharam Prakash. The motive was with Bhanu Prakash and Dharam Prakash to snatch the gun from the accused-Respondent and to cause harm to him. It is submitted that the tube-well of the accused-Respondent was installed in village Narora in the year 1972-73. The tube-well of first informant was running much prior to it. Submission is that after installation of the tube-well of accused-Respondent in village Niwari, it would be the first informant who could feel aggrieved.

On the other side, it is being submitted that some road was constructed in between Narora and the Power House due to which the farmers of village Niwari started irrigating their fields from the tubewell of first informant and this caused annoyance to the accused-Respondent.

On this point, it is being submitted on behalf of the accused-Respondent that some space was left for flowing the water from the tube-well of accused-Respondent at the time of construction of the alleged road to the other side of road. Therefore, no inconvenience was caused to the farmers of the village Niwari in irrigating their fields from tube-well of the accused-Respondent. It is thus, clear that the bone of contention between the warring parties is the water released from their respective tube-wells for the purposes of irrigation of the fields of the farmers of village Niwari. The accused-Respondent was armed with a licensed gun at the time of occurrence. It is also not in dispute that Dharam Prakash (P.W. 3) got injuries from the fires made from the licensed gun of the accused-Respondent.

It is being submitted by learned Additional Government advocate that no body would dare to snatch the gun from the possession of accused-Respondent for the fear of being shot by the accused-Respondent. It is only when the fires were released and the gun became empty, the first informant and the witnesses could muster courage to snatch the gun from the possession of accused-Respondent. In the process, the accused-Respondent also sustained injuries. The accused-Respondent was also medically examined on the same day at about 5.45 p.m. on the reference made by the police.

It is thus contended by the learned A.G.A. that the theory put up by the accused-Respondent thus, appears to be improbable and was set up in self defence.

It is being submitted by learned Counsel for the accused-Respondent that if the intention of the accused-Respondent was to kill Dharam Prakash (P.W. 3), he would have aimed at the vital part of his body and would not aim at the arm of Dharam Prakash (P.W. 3). After fires are released, the reflection of the victim comes into play and all depends upon such reflections as to where the seat of injuries are caused.

It is also submitted by learned Counsel for the accused-Respondent that the accused-Respondent would not carry only two bullets. It has come from evidence that the accused-Respondent was going to Narora for delivering the gun to his brother Vijay Pal Singh. So, the gun actually did not belong to the accused-Respondent. The gun was not taken for the protection of the accused-Respondent. So, the carrying of large number of bullets was not necessary. Moreover, no inference could be drawn that the accused-Respondent would carry with him more bullets than two at the time of alleged occurrence. No body could guess the mind of the accused-Respondent as to why he was carrying only two bullets. Two bullets were found in the gun. The gun and two spent bullets were deposited in the concerned police station by the first informant.

It is thus, found that the learned trial Judge committed grave error in disbelieving the statements of P.W. 1 Bhanu Prakash Sharma, P.W. 3 Dharam Prakash and Rama Shankar (P.W. 4), who have given the eye-witness account of the occurrence. P.W. 3 Dharam Prakash is an injured witness. The statements of P.W. 1 Bhanu Prakash Sharma, P.W. 3 Dharam Prakash and P.W. 4 Rama Shankar are trustworthy and reliable and cannot be discarded. In case in hand, two views are not possible. The view taken by learned trial Judge is certainly erroneous and is unsustainable. The ocular evidence is supported by the medical evidence available on record. The injuries on the person of accused-Respondent have been explained by the prosecution. It is being submitted by learned Counsel for the accused-Respondent that the nature of the injuries sustained by the P.W. 3 Dharam Prakash are not such as to constitute the offence punishable u/s 307, I.P.C. The injuries are on non-vital part of the body of Dharam Prakash (P.W. 3).

Learned A.G.A. has placed his reliance on this point in the decision in Bipin Bihari v. State of M. P. (2007) 1 SCC 25: 2006 (3) ACR 3004. The Hon''ble Supreme Court has held that to justify conviction u/s 307, I.P.C., it is sufficient if there is an intent coupled with some overt act in execution thereof, it is not essential that bodily injury capable of causing death should have been inflicted. Intention can be deduced not only from the nature of injury caused but also from other circumstances and may even, in some cases, be ascertained without any reference to actual wounds. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section 307, I.P.C. In the case in hand, the accused-Respondent made two fires at Dharam Prakash (P.W. 3), which caused three injuries on his left upper arm. The gun of the accused-Respondent was exhausted and the accused-Respondent was apprehended by the first informant and the witnesses. If the gun was not exhausted, more fires could have been made by the accused-Respondent and he could not have been controlled by the first informant and the witnesses. Thus, the act of accused-Respondent is perfectly covered u/s 307, I.P.C. The requisites for conviction of accused-Respondent u/s 307, I.P.C. are fulfilled. The decision of Bipin Bihari (supra) is fully applicable to the facts and circumstances of this case.

It is not necessary to produce independent persons as witnesses if statements of the witnesses already recorded, are of such nature that they inspire confidence and are trustworthy. Learned trial Judge has thus, miscarried himself in his insistence for production of independent witnesses.

On the basis of evidence on record, the charge u/s 307, I.P.C. is proved beyond all reasonable and probable doubt.

The impugned judgment and order passed in Criminal Appeal No. 99 of 1979, Satyavir Singh v. State of U. P., is thus, found to be unsustainable as far as acquittal of accused-Respondent u/s 307, I.P.C. is concerned.

We do not find any illegality or irregularity in the impugned judgment and order dated 6.11.1980 regarding acquittal of accused-Respondent u/s 27, Arms Act and his conviction u/s 25(1)(a), Arms Act.

The criminal revision filed by Bhanu Prakash Sharma is thus, partly allowed. We are not inclined to enhance the sentence awarded u/s 307, I.P.C. passed by learned Assistant Sessions Judge, Bulandshahr in S.T. No. 328 of 1976, State v. Satyavir Singh. No prayer for the enhancement of the sentence u/s 307, I.P.C. has been made in the criminal revision by Bhanu Prakash Sharma. The occurrence is dated 9.2.1975. We are also not inclined to enhance the sentence awarded to accused-Respondent u/s 25(1)(a), Arms Act.

Keeping in view the date of occurrence of this case, we are not inclined to enhance the sentence as awarded by learned Assistant Sessions Judge, Bulandshahr in S.T. No. 328 of 1976 in Government appeal as well.

We thus, confirm the sentence of three years R.I. awarded u/s 307, I.P.C. by learned Assistant Sessions Judge, Bulandshahr vide judgment and order dated 21.5.1979, passed in S.T. No. 328 of 1976, State v. Satyavir Singh.

Government appeal is thus, partly allowed. The judgment and order dated 6.11.1980, passed by Ist Additional Sessions Judge, Bulandshahr is partly set aside to the extent referred above. The accused-Respondent Satyavir Singh having been found guilty u/s 307, I.P.C. is sentenced to three years R.I.

We decline to interfere with the order of acquittal passed u/s 27, Arms Act and instead convicting the accused-Respondent u/s 25(1)(a), Arms Act and sentencing him to imprisonment till the rising of the Court.

The judgment and order passed today is certified to the Court of Ist Additional Sessions Judge, Bulandshahr and such Court shall thereupon make such orders as are conformable to the judgment and order of this Court and, if necessary, the record shall be amended in accordance therewith.