State of U.P. vs Ram Chandra and Others

Amar Saran, J.—This Government appeal has been filed against the judgment and order dated 9.11.2001, passed by the learned Additional District and Sessions Judge. Court No. 1, Kanpur Dehat in S. T. No. 45 of 1994, whereby the accused-Respondents have been acquitted of the charge u/s 307/34, I.P.C.

In a nutshell the case of the prosecution was that there was enmity between the informant Jagdish''s maternal uncle (mama), the injured Nankoo Prasad and accused Kishan Lal and others and because of that enmity, on 24.6.1990 at about 8.30 a.m. when Nankoo Prasad was purchasing articles from the shop of Sone Lal Raidas, Kishan Lal, armed with his licensed gun and co-accused-Ram Chandra and Laxmi Narain armed with country-made pistols and one Mohan (who died during the trial) armed with kanta, arrived there. On the exhortation of Ram Chandra "Maar do sale Nankoo Prasad ko aaj bachnay na paye", Kishan Lal with his licensed gun and Ram Chandra and Laxmi Narain with their country-made pistols, fired at Nankoo Prasad with an intention to kill him. On receiving injuries Nankoo fell down and raised a cry. On his cries the informant Jagdish, Nankoo''s elder brother Mool Chandra and co-villagers Ganga Prasad, Vinod Kumar, Banshi Lal, Dinesh Kumar, Gajendra and Lakhan came running there and tried to intervene, but they also received a large number of injuries. The informant Jagdish, Chhotey Lal, Ajodhudhi, Uma Shanker and many others, however, escaped injuries. On the cries raised by the prosecution party, Ram Chandra and three other co-accused ran towards village Ahiran Purwa. Out of fear, the witnesses did not pursue them. The informant then got a report scribed by Bachan Singh and proceeded on a Tempo together with the injured Nankoo, Banshi Lal, Dinesh Kumar, Gajendra and Lakhan to the reporting outpost Raniya, of police station Akbarpur, which was 6 Kms. away, where they handed over the report at 9.30 a.m. on the same day. Check and nakal reports were prepared by H. M. Surendra Pratap Singh. Constable Hari Shanker Singh took the injured persons for medical examination.

Dr. P. B. S. Chauhan, P.W. 2 conducted the medical examination of the injured on the same day, i.e., 24.6.1990 between 11.40 and 12.05 p.m. at the U.H.M. Hospital, Kanpur where he was posted as E.M.O.

He found the following injuries on Nankoo Prasad:

Multiple firearm wounds of entry 0.5 cm. x 0.5 cm. and 0.4 cm. x 0.4 cm. depth not probed over right side chest. Abdomen and hip (all lateral aspect) kept under observation.

X-ray advised.

Duration fresh.

Opinion-Injury caused by firearm kept under observation. Advised x-ray of right side chest, abdomen, hip A.P. and Lateral view. Pt. admitted.

The Doctor found the following injuries on the body of Banshi Lal:

Firearm wound of entry 0.4 cm. x 0.3 cm. x depth not probed on front of neck 1 cm. to the left of mid-line 3.5 cm. above. Due to that injury there was a swelling of 7 cm. x 5 cm. on the left side of neck. Kept under observation.

Duration fresh.

Opinion-Injury caused by firearm kept under observation. Pt. admitted. Adv. X-ray of neck and upper chest A.P.

Dr. P. B. S. Chauhan, P.W. 2 found the following injuries on the body of Vinod:

Firearm wound of entry 0.4 cm. x 0.4 cm. on front of right shoulder x depth skin deep.

Firearm wound of entry 0.4 cm. diameter (left) side in front of chest 4 cm. below medial end of clavicle x skin deep.

Firearm wound of entry 0.4 cm. diameter x skin deep front of right chest 1.5 cm. lateral to xiphisternum.

Firearm wound of entry 0.4 cm. diameter x skin deep on left side chest 3 cm. Lateral to xiphisternum.

Firearm wound of entry 0.4 cm. diameter x skin deep on medial side middle of right thigh.

Duration-Fresh.

Opinion: All above injuries are caused by firearm. Kept under observation X-ray of chest and right shoulder, thigh (Rt) all A.P. view.

The Doctor found the following injuries on the body of Mool Chandra:

Multiple wound of entry by firearm 0.4 cm. to 0.5 cm. diameter scattered over right side head, neck, nose, front of arm (right) front of chest x depth not probed. Kept under observation. Advised. X-ray.

Left eye-swollen sub-conjunctiva haemorrhage kept under observation. C/o loss of vision referred to eye-surgeon.

Duration-Fresh.

Opinion-Injuries caused by firearm kept under observation. Adv. X-ray of head, neck, chest right arm A.P. view. Referred to eye-surgeon. Pt. Admitted.

The Doctor found the following injuries on the body of Ganga Ram:

Abrasion 3 cm. x 2 cm. on back of middle of (lt) thigh.

Duration-Fresh.

Opinion-Injuries alleged to be caused by firearm is simple in nature.

The Doctor found the following injuries on the body of Lakhan:

Lacerated wound at upper part of scalp 1 cm. lateral to mid-line, 12 cm. above eyebrow of left side 12 cm. above and medial to left ear size 1/2 cm. x 1/4 cm. margin irregular, blood clot present skin deep.

Lacerated wound at lateral side of scalp (on left side) 8 cm. above and posterior to left ear, 8 cm. lateral to mid line. Size 13 cm. posterior to eyebrow mid part size 2 mm. x 2 mm. margin irregular, blood clot present skin deep.

Advice and opinion- Injuries 1 and 2 are simple in nature. Duration within one day caused by hard and pointed object.

The Doctor found the following injuries on the body of Dinesh:

(1) Lacerated wound at left temporal region 1-1/2 cm. lateral to lateral end of left eyebrow and 5 cm. anterior and superior to left ear. Size 1-1/2 cm. x 1/2 cm., margin irregular. Blood clot present. Direction anterior to posterior skin deep.

(2) Lacerated wound at medial end of left clavicle (upper part) pin head size, pointed in shape size 1 mm. x 1 mm., margins irregular, blood clot present, skin deep.

Advice and opinion: Injury Nos. (1) and (2) are simple in nature, duration within one day caused by hard and pointed object.

The Doctor found the following injuries on Gajendra:

(1) Lacerated wound at mid part of left eyebrow size, pin head size, rounded in shape size 2 mm. x 2 mm., blood clot present, margin irregular, skin deep.

(2) Lacerated wound at lateral side of left pinna (outer margin) anterior aspect, pin head size, rounded in shape size 2 mm. x 2 mm., blood clot present, margin irregular, skin deep.

(3) Lacerated wound at lateral side of left across arm at inferior part of deltoid muscle 10 cm. below shoulder joint (lt) and 16 cm. above upper prominence, size 2 mm. x 2 mm., skin deep margin irregular. Blood clot present.

Advice and opinion-In the opinion of the doctor injuries Nos. (1), (2), (3) are simple in nature and caused by hard and pointed object within one day in duration.

Apart from Dr. P. B. S. Chauhan, the prosecution has examined three witnesses. They are, P.W. 1, Mool Chandra, who was also injured, P.W. 3, Nankoo Prasad, who was another injured witness and P.W. 4, Jagdish, the informant of this case.

P.W. 1, Mool Chandra, has substantially reiterated the versions given by Jagdish in the first information report as described above. He further stated that the accused persons wanted to take the sahan of the house of this witness and his brother Nankoo Prasad, There had earlier been a quarrel and exchange of hot words and because of this enmity the accused persons have committed the present crime.

P.W. 3, Nankoo Prasad has also reiterated the versions mentioned in the F.I.R. described above. He has further clarified in his examination- in-chief that after the exhortation of Ram Chandra that he should be killed and not be spared, he turned to the right and tried to flee. At that moment Kishan Lal with his licensed gun, Ram Chandra and Laxmi Narain with their country-made pistols fired at him, because of which he received pellets injuries on the right side of his chest and stomach and on the right side of his hip. When he cried for help, the other witnesses mentioned in the F.I.R. reached there. The assailants then fired on the persons, who had come running to help, also received pellets injuries. The house of the informant Jagdish was about 20-22 paces from the place of incident and he saw the incident from his house. He remained in the Ursala Hospital for two days. Thereafter, he was referred to Hallet Hospital. The quarrel between the parties took place because the accused wanted to usurb the sahan of this witness. He had also handed over his bloodstained lungi and vest. All the four accused persons belonged to his village, out of whom Mohan has died. When he was recalled for fresh examination, he specified that all the three persons fired at him and all the three fires struck him. To a further query from the defence, he further clarified that all the accused persons made one or two fires each. To a question whether he saw any tikli or cartridges at the spot, he stated that he was in such great pain that he could not see any tikli or cartridges at the spot.

The informant P.W. 4 Jagdish, nephew of the main victim, Nankoo Prasad, reiterated the version mentioned by him in the F.I.R. He has clarified that five of the injured persons were sent to Ursula Hospital in Kanpur and three of the injured persons to Akbarpur P.H.C. The accused in their statements u/s 313, Cr. P.C. have denied the prosecution version in toto and claim to have been falsely implicated on account of enmity. They have however not produced any evidence in defence.

We have heard Sri P. S. Pundir, learned A.G.A. for the State and Sri Vidhu Bhushan Singh and Sri Gaurav Singh, learned Counsel for the accused-Respondents who have taken us through the evidence and judgment of the trial Judge in this case.

It has been submitted by the learned A.G.A. that the grounds of acquittal are wholly unreasonable and perverse and it is not a case where two views of the evidence could be taken. It was a broad daylight incident and the F.I.R. was lodged promptly within a hour, and there were a large number of injured witnesses, hence the judgment of acquittal passed by the learned Sessions Judge could not be sustained.

The learned Counsel for the accused-Respondents on the other hand submitted that a large number of injured persons have not been examined and that in any case the injuries are not dangerous to life, hence no offence u/s 307, I.P.C. is disclosed. In view of the fact that the incident is of 1990, and 18 years have elapsed since the incident, even if this Court were to reverse the order of acquittal the accused ought to be given the benefit of Probation of First Offenders Act.

The grounds of acquittal given by the trial Judge are:

Only two injured witnesses, viz., Mool Chand and Nankoo, who are brothers inter se, have been produced by the prosecution and the six other injured witnesses have not been produced in the case. Also the three other witnesses, who were named in the F.I.R., viz., Chhotey Lal, Ajuddhi and Uma Shanker have also not been produced ;

Jagdish could not have been an eye-witness because, on the one hand, he had stated that he arrived at the incident after the injured Nankoo had fallen down and raised a cry, at the same time he describes the incident from the inception and mentions that on Ram Chandra''s exhortation all the three accused-Respondents had fired at the injured and thus this witness is deposing on the basis of hearsay evidence. There were also some other discrepancies in the evidence of this witness because at one point he has stated that his maternal uncle (mama) Nankoo Prasad, the injured, was sitting at Sone Lal''s shop smoking a bidi ; on the other, he stated that Nankoo Prasad was 8 to 10 paces away from Sone Lal''s shop. He states that 3 or 4 fires were made but he could not clarify as to who made how many fires. He states at one point that the Investigating Officer did not record his statement u/s 161, Cr. P.C. but when it was shown to him, he denied having given it. It was suggested to this witness that his employment was in Rania and he was there in connection with his employment and he only arrived at the spot on receiving the information of the incident, and then has lodged this false first information report.

Learned trial Judge has also stated that this witness has given a conflicting version about whether he was on night duty or day duty. Even the witness P.W. 1, Mool Chand has not taken the name of Jagdish in his examination-in-chief showing him as present at the time of incident. Although later on Mool Chand has stated that this incident was witnessed by Jagdish, Uma Shanker and Chhotey Lal.

Likewise, Nankoo Prasad, P.W. 3, has stated in his examination-in-chief that Mool Chand and others arrived on his cries after hearing the sound of firing. There is also some conflict inasmuch as Jagdish has stated that Nankoo Prasad was sitting at Sone Lal''s shop with a bidi, whereas the prosecution case is that Nankoo Prasad had gone for the purpose of shopping and before he reached Sone Lal''s shop the accused attacked him. Contrary to this, Jagdish had stated that Nankoo came out of his house after taking a bidi and he was at about 8 to 10 paces from the shop when he was fired at. It is further stated that if the version given by Jagdish is compared with the site-plan and if the firing took place from the north of Kishan Lal''s house, towards Sone Lal''s door, then absence of blood at the doorstep of Sone Lal shows that Jagdish was not present at the spot. Whereas Jagdish is shown as witnessing the incident from the kharanja pathway (point ''J'' in the site-plan), the other witnesses are said to have been injured on the east of Sone Lal''s house. Jagdish has also stated that the accused-persons were at the chhappar of Kishan Lal. They fired from there but, from the site-plan, the points A-1, A-2 and A-3 where the accused were present, are visible. Hence, Jagdish''s evidence creates doubt about the manner in which the incident took place. The Investigating Officer has not shown this witness coming to the place but witnessing the incident from point ''J''.

From all the aforesaid circumstances, the learned Judge has inferred that the witness, Jagdish, was not present at the time of the incident and he was a set-up witness.

The learned trial Judge has discarded the evidence of P.W. 1 Mool Chand, the injured eye-witness by holding that Mool Chand reached the place of incident alongwith Gajendra, Dinesh and Banshi Lal when Nankoo was already lying injured there. At that time Nankoo was unconscious and that these people had not seen as to who had fired on Nankoo. This witness had also stated that when Nankoo was fired on, one pellet also struck Ganga Ram''s leg. At that time he was not present. He stated that no Investigating Officer had examined him. He disclaims having shown the site to the Investigating Officer, but his brother Nankoo had shown him the site. This witness also stated that the Investigating Officer took his clothes as well as Nankoo''s clothes but he does not know what happened to the clothes. He admits that since 1990 Nanhe was cultivating Santosh Singh and Jang Bahadur''s land and that for the last 3 or 4 years the accused persons were cultivating the said land. He admits that Santosh Kumar and others had filed a case against him and Nanhe and others for illegal occupation of the land but Mool Chand and others had won the case. When the deposition of this witness was tested by the trial Judge in the light of the location of this witness as well as the other injured as described in the site-plan (Ext. Ka-9), in view of certain contradictions in the positions which emerged from a consideration of the site plan, the trial Judge has refused to rely on the testimony of this witness.

Likewise, the evidence of P.W. 3, Nankoo Prasad, the injured, has been rejected by the trial Judge, although the trial Judge admits that this fact is not disputed that some incident took place with this witness in which he received firearm injuries. But as there was enmity between the parties, it appeared to the trial Judge that the present accused-Respondents had not committed the crime, but that some others had committed it and the present accused-Respondents had been falsely implicated. The trial Judge further observed that as the evidence of Mool Chand P.W. 1 and Jagdish P.W. 4, was not reliable, it was to be seen whether reliance could be placed on the testimony of this witness for recording the conviction of the accused-Respondents. Nankoo had admitted that his vest and lungi were blood-stained and they were pierced at many places with pellets. But as these articles although they were taken in possession by the police, but as they have not been produced in Court an important circumstance for corroborating the crime is absent. This witness had admitted in the cross-examination that he fell near the main door of Sone Lal, then his brother Mool Chand and co-villagers Ganga Ram and other villagers arrived there to protect him, and received injuries. Whereas his brother Mool Chand has stated that the same fire which struck Nankoo, struck Ganga Ram and Mool Chand has further stated that he was not present when Ganga Ram received the injuries. Nankoo Prasad has stated that the accused had fired from the north-eastern direction, whereas the site-plan disproves this fact because according to the site-plan the firing was done from the north-western direction and the trial Judge observed, that if the firing had been done from the north-eastern direction, then Nankoo Prasad could not have received the injuries because Kishan Lal and Sone Lal''s houses would have intervened and it would have been impossible for the fire to have reached the points ''C'' and ''B'' where Ganga Ram and Nankoo Prasad are said to have received injuries. Apart from this, P.W. 3, Nankoo Prasad, stated that the injured had fallen to the west of Sone Lal''s house and that the blood had fallen there but on the west of Sone Lal''s shop in the site plan, the Investigating Officer however has not shown any person as having fallen there, nor was any blood found there, but had shown the place where the injured received injuries to be 30 to 35 paces from there and near the houses of the villagers and only Nankoo Prasad, and Ganga Ram had fallen to the west of Sone Lal''s house. This witness admits that there was a dispute between Santosh Singh and Mool Chand and others over the abadi land. Nankoo admits at one point in his evidence that when he reached to the west of Sone Lal''s house, he saw the accused persons and he fell 10 to 11 paces from the main door of Sone Lal''s shop on the western side and the blood had fallen there but the Investigating Officer has not seen any blood at that spot nor collected any blood etc. from there. Hence, the place of incident mentioned by this witness is not correct. From these discrepancies the trial court has sought to infer that owing to enmity the place of incident has been wrongly described and there are contradictions inter se about the place of incident among the witnesses. The trial court further clarifies that according to the evidence of Nankoo the incident took place about 10 to 11 paces to the west of Sone Lal''s house and all the persons were injured there but according to the site plan only Ganga Ram and Nankoo were injured there, whereas the others were injured on the eastern border of the village. In view of the fact that there was a dispute about the place of incident and discrepancies in the statements of the witnesses in this regard and also because the plain and blood-stained earth and the clothes of the injured although collected by the Investigating Officer, were not produced in Court, hence the trial court held the prosecution story to be doubtful and has discarded the entire prosecution case on that basis. Also reliance was placed on a certain case-law of the High Court that if no independent witnesses were produced for establishing the place of incident and the plain and blood-stained earth was not sent for chemical examination, there were enmities between the parties and independent witnesses have not supported the case, then the accused should be given the benefit of doubt in such a situation. The trial court has however conceded that in view of the decision of the Apes Court in Gur Bachan Singh and Ors. v. State AIR 1956 SC 161, simply because witnesses are related, it was no ground for discarding their testimonies but the evidence of such witnesses should be treated with extreme caution. In the circumstances of the present case the trial court was of the view that on a close scrutiny the evidence appears to be unreliable. It was also observed by the learned trial Judge that only two out of the eight injured witnesses have been produced and those two eye-witnesses were brothers inter se and in view of the non-production of six injured witnesses the true facts have not been revealed to the Court. He has further recorded a finding that even though P.W. 4, Jagdish was not present at the spot, he has been falsely introduced as an eye-witness and that 4 independent witnesses who were named in the F.I.R. have not been produced. There is considerable discrepancy between the statements of the two injured brothers, even though the F.I.R. was lodged immediately after the incident and the police had arrived, yet no blood was taken from the spot and that the clothes of the injured which showed signs of blood and piercing marks of pellets although they were collected but have not been produced.

We think that learned Counsel for the accused-Respondents has rightly not tried to seriously support this judgment of the trial court on merits. The grounds of acquittal, as rightly pointed out by the learned A.G.A., are extremely trivial and flippant. For the proposition that in this case only one view holding the accused guilty of the offence can be taken, and has rightly relied for this purpose on the following lines from paragraph 38 of the recent Supreme Court decision in State through State through SPE and CBI, AP Vs. M. Krishna Mohan and Another,

It is, however, a trite law that an appellate court, while entertaining an appeal from a judgment of acquittal, would also be entitled to consider the evidences brought on record by both the prosecution and the defence and arrive at its own decision. Interference with a judgment of acquittal may not be made when two views are possible to be taken, but when on appraisal thereof, only one view is possible, the appellate court would not hesitate to interfere with the judgment of acquittal. In this case, we are firmly of the view that no two views are possible to be taken.

In this case two injured witnesses have been produced and for very minor discrepancies as to whether the injured witness Ganga Ram received the pellet injuries on his leg at the same time when the principal injured witness P.W. 3 Nankoo Prasad was fired upon, as deposed by P.W. 1, the injured Mool Chand (who had arrived at the firing of the shot), or whether the version given by Nankoo Prasad, P.W. 3, was correct that the injuries to him and to Mool Chand were not caused by the same fire was correct, is of no importance for rejecting the prosecution testimony in toto. (Vide Jai Shree Yadav v. State of U. P. AIR 2004 SC 4443 : 2004 (3) ACR 2068 , Krishna Mochi and Others Vs. State of Bihar,

Similarly, nothing turns on the minor discrepancies about the fires. Again, we think that the trial Judge has unnecessarily flogged the issue that there were some discrepancies about the places where the injured were located and the place of firing as deposed to by the witnesses with what was noted in the site plan. It may be mentioned here that the entries in the site plan do not constitute evidence in Court and a site plan is only relevant insofar as what the Investigating Officer himself finds at the place of incident. What is told to him by the witnesses is hit by Section 162, Cr. P.C. and can only be used for contradicting witnesses according to the provisions of Section 145 of the Evidence Act, by contradicting the witnesses by confronting them with the portions of this statement as disclosed to the Investigating Officer. His notes on the site plan can never be used for contradicting the witnesses, as has been done in the present case and as aptly observed by the Apex Court in Jit Singh Vs. State of Punjab,

The notes on the site plan prepared by the Investigating Officer in accordance with the various situations pointed out to him by the witnesses are statements recorded by the Police Officer in the course of investigation, and are hit by Section 162. These notes can be used only for the purpose of contradicting the prosecution witnesses concerned in accordance with the provisions of Section 145, Evidence Act, and for no other purposes. Therefore, where this was not done, and the witnesses were never confronted and contradicted with this record, the notes on that site plan cannot be used to contradict the account given by the witnesses in Court in regard to the distances from which they saw the occurrence.

Also, as we see in this case, where the evidence was that the three accused-Respondents resorted to indiscriminate firing first on the injured, P.W. 3 Nankoo, and thereafter, when the witnesses arrived to help, they were also fired upon by them, with the result that 7 persons received firearm injuries. In such circumstances the persons would be running helter-skelter and nothing would turn on the fact whether the two persons Ganga Ram and Nankoo fell down near the house and shop or Nankoo and Kishan Lal and that some other injured persons in the incident fell down at a little longer distances. There can be no denying that this incident took place in broad daylight on 8.30 a.m., and the F.I.R. was promptly lodged at the outpost Rania of P.S. Akbarpur, which is 6 km. away, at 9.30 a.m. within a hour of the incident. Two injured persons have been examined. We think that for highly speculative reasons regarding the precise time when Jagdish the informant arrived at the place and the vague suggestion that as he worked in Rania he could not be present at the time and place, the evidence of the informant P.W. 4, Jagdish, has been discarded by the trial Judge. There was no reason why this witness as well as the other injured witnesses would depose falsely if the three accused-Respondents had not fired at the injured and someone else had committed the crime. (Vide State of Rajasthan Vs. Bhawani and Another, and Amar Singh v. Balwinder Singh, para 8).

As two injured witnesses have been produced, it was not necessary for the prosecution to examine all the injured witnesses and no good purpose would have been served by multiplying the evidence of witnesses who would have repeated the same version. Section 134 of the Evidence Act, does not enquire production of a particular number of witnesses for proving a fact and it is a well-settled maxim that "evidence has to be weighed and not counted". (Vide Amar Singh Vs. Balwinder Singh and Others, and Vadivelu Thevar Vs. The State of Madras,

Also, it is now well-settled that independent and unrelated persons seldom come forward to give testimony in a case as they usually distance themselves as far as possible from the disputes between other people. This is unfortunate, but a widespread phenomena in both villages and towns. (Vide Appabhai and Another Vs. State of Gujarat, Therefore, simply because 6 injured persons and four others, who were named in the F.I.R., have not come forward to support the prosecution case affords no ground for discarding the clear eye-witness account of Mool Chand and Nankoo and the informant Jagdish, who promptly lodged the F.I.R. within a hour of the incident. It is also well-settled that mere defects in investigation or failings of the Investigating Officer or of non-production of blood-stained earth and pellet-pierced clothes which were taken into custody or simply because the plain and blood-stained earth has not been sent to the chemical examiner cannot afford any ground for discarding the eye-witness account, if no good reason exists for not placing implicit reliance on the same. (Vide Paras Yadav and others Vs. The State of Bihar, ; Ram Bihari Yadav Vs. State of Bihar and Others, and Amar Singh Vs. Balwinder Singh and Others,

So far as the principal submission raised by the learned Counsel for the accused-Respondents that there is no finding of the doctor that the injury received by Nankoo Prasad or the other injured persons were dangerous to life, it may be noted that P.W. 2, Dr. P. B. S. Chauhan, who conducted the medical examination of Nankoo on 24.6.1990 in U.H.M., Hospital in Kanpur has noted a many numbers of firearm entry wounds which were 0.5 x 0.5 cm. and 0.4 x 0.4 cm. which were on the chest on the right side, stomach and on the hip on the lateral aspect which was kept under observation and X-ray was advised. The other injured, Banshi Lal, Vinod and Mool Chand have also received injuries on vital parts of their body who were kept under observation. The injuries of Ganga Ram have not been described as simple. The medical examination was also promptly conducted after the incident which shows that the injuries had been caused within 6 hours of the medical examination which also corroborates the prosecution version. The doctor was also not in a position to say as to how many persons have caused injuries to the injured. He had also prepared a supplementary report which was not available to him at the time of his examination in Court. However, the supplementary report of Nankoo Prasad which is on record (vide Ext. Ka-14), shows that Nankoo Prasad was also admitted to Lala Lajpat Rai Associate Hospital in Kanpur in the department of surgery on 26.6.1990 and he was discharged only on 9.7.1990. The diagnosis was gunshot injury to the right chest and abdomen for which surgical procedures were taken on him under general anesthesia and he was discharged after his condition was better.

Learned Counsel for the accused-Respondents that before persons can be convicted u/s 307, I.P.C., the doctor must record his opinion that the injuries are dangerous to life. In this connection the learned A.G.A. drew our attention to the Apex Court''s decision in the case of Bipin Bihari v. State of M. P. (2007) 1 SCC 25: 2006 (3) ACR 3004 . In this case there was only a single gun shot injury on the right calf of the complainant, as a result of which the region had been ripped open. There was even no evidence of any second fire. The Apex Court observed that for recording a conviction u/s 307, I.P.C., all that is required is that there should be intent, coupled with some overt act in accomplishing the same and it was not essential that bodily injury capable of causing death should have been inflicted. It was also clarified that although the nature of injuries actually caused may give considerable assistance for recording a finding as to the intention of the accused, the intention can also be gauged from the other circumstances and in many cases it could be ascertained even without any reference to the actual witnesses ; and if the act, irrespective of the result was done with the intention or knowledge or under the circumstances that by that act, death could have been caused and he would have been guilty of murder, in such circumstances an offence u/s 307, I.P.C. is clearly disclosed. In this connection paragraph 9 of the decision in Bipin Bihari (supra) may be usefully extracted hereunder:

It is sufficient to justify a conviction u/s 307 if there is present 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. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deducted from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. 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. An attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

In the present case, Mool Chand has clearly stated that there was enmity between the accused because they wanted to take the sehan of their house and as a result of firing the Nankoo who had received injuries on stomach and chest and blood which had even spread on the ground, had fainted. As he himself was an injured person he had not taken Nankoo and others to the doctor but Jagdish and others had taken him. When they were hardly one or two paces from Nankoo after the firing had taken place on Nankoo, they were fired upon from about 2 to 4 paces by all the three accused-persons but he could not say as to who fired first and who had fired subsequently. He had received injuries on his head, neck, knees and left eye and he was not sure where the other injured had received injuries. Even P.W. 3 Nankoo Prasad had himself stated that Kishan Lal with his licensed gun. Ram Chander and Laxmi Narain with country-made pistols had fired which struck him on his chest on the right side stomach on the right side hip. He had fallen down as a result of the firing and he has even clarified that in his re-examination on questions put by the cross-examiner that all the three accused had fired one or two times which had struck him, although he could not specify as to who had caused how many injuries.

In these circumstances of the case we are of the view that a case u/s 307, I.P.C. is clearly made out.

We, therefore, set aside the judgment of acquittal against the accused-Respondents and convict them u/s 307 read with 34, I.P.C.

The learned Counsel for the accused-Respondents submits that considering that the matter was very old, of 1990, the accused-Respondents should be given a very short sentence or be allowed to be let off on probation. He has placed reliance on a decision of the Apex Court in Chandreshwar Sharma v. State of Bihar 2000 (1) JIC 708: 2000 (1) ACR 582 .

We think that in this case, where three persons have resorted to firing and 8 persons have received injuries including on the vital parts of Nankoo Prasad, Mool Chand and others, it would not be appropriate to extend the benefit of the Probation of First Offenders Act to the accused-Respondents. We are of the opinion that under such circumstances ends of justice would be met if the accused-Respondents are sentenced to 4 years'' R.I. with a fine of Rs. 500 each, and we order accordingly. In case of default, they shall undergo 3 months'' further imprisonment.

The accused-Respondents are on bail. Their bail bonds are cancelled. They are directed to be taken into custody to serve out their sentences forthwith.

Copy of this order may be sent to the C.J.M. concerned within 3 weeks for compliance and the compliance report may be sent to this Court by the C.J.M. within 3 months thereafter.

The Government appeal succeeds and is allowed as above.