State of U.P. vs Yashpal

Onkareshwar Bhatt, J.—Accused respondent Yashpal was tried and acquitted under Section 307 IPC. The judgment as well as order of acquittal was passed by the then III Addl. Sessions Judge, Saharanpur in Sessions Trial No. 548 of 1980 on 2481981.

Sri K.P. Shukla, learned AGA and Dr. C.P. Upadhyay, learned Counsel for the respondent have been heard and record of the case has been carefully perused.

It is admitted that twenty Bighas land at Chak No. 47 sitaute in village Bood Noor Pur was purchased by informant Om Prakash in the year 1973 from one Kabul Singh. The land of the informant was towards south in Chak. The land of one Dhoom Singh was towards north of the land of the informant. The accused respondent purchased the land from Dhoom Singh in the year 1974. It is also admitted that towards west of the land of the informant a Chakroad goes towards north south and towards west of the Chakroad there is a Nali of Government tubewell.

According to the prosecution case the accusedrespondent asked the informant to sell his land to him, which the informant refused. Thereafter, the accused respondent damaged the ridge which lay in between the two plots. On 161980 at about 4 p.m. the informant was ploughing his field. He stopped the ploughing and proceeded to drink water at the house of Harpal Singh PW 2, which is towards north side of his plot. In the way on the Chakroad the accused challenged the informant and asked him to stop so that the matter of ridge be finished for ever. The accused was armed with DBBL gun. The informant turned towards the accused and the accused fired two shots. The first shot hit the informant in his left elbow and the second on his left thigh. The informant fell down when the second shot hit him. He raised alarm. Harpal Singh PW 2, Rajpal, Rishipal, Voharam Lal PW 3 and Suresh Prasad who were sitting at the tubewell of Harpal Singh came. Suresh Prasad stayed with informant while others chased the accused. They came back after about half an hour with the gun and belt of cartridges belonging to the accused. They told the informant that the accused had thrown the gun and belt near the bride of river which they had brought.

The informant dictated written report of the occurrence to Kunwar Pal, whereafter he went to the police station Jhabrera alongwith the gun and belt of cartridges. The First Information Report was lodged at 6.30 p.m. on 161980 in presence of the Investigating Officer Rameshwar Dayal Sharma PW 5. The informant was sent to PHC Jhabrera where an injection was administered to him and he was sent to Saharanpur hospital. On 2 61980 at 2 p.m. Dr. N.K. Saxena PW 4 examined the injuries of the informant and found following injuries:

(1) Lacerated wound 11 cm x 5 cm x bone deep on back of left elbow.

(2) Multiple gun shot wounds of entrance in an area of 18 cm x 10 cm on back of left hand had left forearm lower part. Each wound is 1/5 cm x 1/5 cm x tissue deep and is directed forward and inward. No blackening or tattooing present around the wounds.

(3) Multiple gunshot wounds of entrance in an area of 26 cm x 6 cm on outer side of left thigh. Each wound is 1/5 cm x 1/5 cm x muscle deep and is directed back ward.

The injuries were kept under observation. Xray of left elbow, left forearm, left hand and left thigh was advised. In the Xray of left elbow and forearm radio opaque shadows were seen.

Blood stained earth was taken into possession from the place of occurrence. The police took into possession the gun and belt of the cartridges and prepared its memo.

The accused respondent denied the prosecution allegation. He stated that the gun and the belt of cartridges were taken by the police from his house. No defence was adduced by him.

The trial Court found the theory of chasing of the accused by the witnesses and picking up the gun and the belt of cartridges doubtful. The trial Court also found inconsistency between ocular and medical evidence. The motive was found inadequate. The testimony of the two eyewitnesses, namely, Harpal Singh and Voharam Lal was not found trustworthy. The trial resulted in acquittal. Aggrieved, the State has come up in appeal.

We have carefully scrutinized the evidence on record. The occurrence had taken place in the month of June at 4 p.m. in broad day light. The sole accused was known to the informant Om Prakash. Their fields adjoined each other and some dispute existed regarding the ridge in between their fields. In the evening prior to the date of occurrence the accused had threatened the deceased informant Om Prakash, challenging that one day he had to run away leaving his field. The trial Court has doubted the veracity of the prosecution case because it found the theory of chasing of the accused by the prosecution witnesses to be unreliable. The fact of running away of the accused and the chase given to him by the prosecution witnesses is not the fact in issue. The fact in issue is murderous assault, which is alleged to have been made by the accused on the injured informant Om Prakash on the date, time and place alleged by the prosecution. Om Prakash PW 1 has stated about the prosecution case mentioned above and his testimony is fully corroborated by the statement of Harpal Singh PW 2 and Voharam Lal PW 3. The house and tubewell of Harpal Singh PW 2 are towards north of the fields of the informant and the accused. It is shown in the site plan Ex. Ka7. From the house of Harpal Singh the place of occurrence is visible with no obstruction in between. The two eyewitnesses have corroborated the statement of the injured informant Om Prakash in all material particulars. The ocular testimony also finds corroboration from the statement of Dr. N.K. Saxena PW 4 who has stated that the injuries of Om Prakash were caused by fire arm and they could have been caused at 4 p.m. on 161980. Regarding injury No. 1 the doctor has only expressed his opinion that there is possibility of its being caused by blunt weapon. It has come in evidence that after the second fire arm injury Om Prakash fell down. The doctor has not ruled out the possibility that the injuries on the person of Om Prakash have been caused by fire arm. The trial Court was not justified in discarding the evidence of the two eyewitnesses Harpal Singh and Voharam Lal. As stated above there was no obstruction in between the house of Harpal Singh and the place of occurrence and since the time was broad day light and since the accused was known from before, there was no difficulty in recognition of the accused. The witnesses had no animus against the accused. The observation of the trial Court that two eyewitnesses and the injured had common cause against the accused who was resident of Goddar Juddar is based on conjecture and surmises.

It has been submitted by the respondent''s Counsel that the parties have patched up the matter outside the Court and they are living amicably. However, the above fact cannot be taken into account for the purposes of decision of the case. It has also been contended that the injuries sustained by Om Prakash were on non vital part of the body. As noted above, the injuries are on the left hand of the injured on the back of left elbow and on left thigh. Since nonvital part of the body is involved, we are of the view that interest of justice would be met if accused respondent is sentenced to imprisonment for the period already undergone by him and to a fine of Rs. 15,000.

In the result, the appeal is allowed and the impugned judgment of acquittal is set aside. The accused respondent Yashpal is held guilty of the offence under Section 307 IPC and is sentenced to imprisonment for the period already undergone by him and to a fine of Rs. 15,000 (Rupees fifteen thousand only). In default of payment of fine, he shall undergo rigorous imprisonment for a period of one year. The appellant is in jail in pursuance of nonbailable warrant issued against him. He shall be set free if not wanted in any other case provided he deposits the fine of Rs. 15,000.

Judgment be certified to the Chief Judicial Magistrate, Saharanpur for follow up action.