(1) THIS appeal has been directed against the judgment and order dated 13-5-88 passed by the then III Addl. Sessions Judge, Saharanpur in Sessions Trial No. 124/85 convicting appellants Mohar Singh and Preetam Singh under Section 324 and 323/34 IPC and Devi Chand and Sripal under Sections 323 and 324/34 IPC but instead of sentencing them giving them the benefit of First Offender Probation Act and releasing each of them upon furnishing a personal bond and two sureties each in the like amount for keeping peace and be of good behaviour for two years.
(2) ALONG with the appellants Tara Chand, Surjan and Kashi were also tried. They were however acquitted.
(3) MOHAR Singh, Devi Chand and Preetam Singh appellants are the uncle of PW 1 Ram Pal who is also the first informant of the case. There had been a family partition in between these three appellants and Kalu Ram father of PW 1 Ram Pal in which Kalu Ram got 1/4 share in the cultivatory land as well as in a mango grove in village Bansdei police station Ganghoh, Saharanpur. It is said that after this family partition Kalu Ram started cultivating his land separately while the above three appellants remained joint. Kalu Ram was in exclusive possession of the mango tree, which came to his lot in the partition and was appropriating the produce thereof.
(4) APPELLANT Sripal is the son of Kashi Rant. Tara Chand, Surjan and Kashi are the sons of Asha Ram and cousins of Mohar Singh, Preetam Singh and Devi Chand appellants. They have formed a group and have intimate relations.
(5) IT is further alleged that Mohar Singh and others do not want to give 1/4 share in the grove to Kalu Ram and on that account are bearing ill will against them and are also indulging in litigation. They had also been challaned in proceedings under Sections 107/116 Cr PC.
(6) ON 17-8-83 at about 8. 00 A. M. PW 1 Ram Pal s/o Kalu Ram was plucking mangoes from the trees of his share. At that time Mohar Singh, Preetam Singh, Devi Chand, Tara Chand, Surjan, Kashi, Asha Ram and Sripal after forming an unlawful assembly come to the grove. Mohar Singh and Preetam Singh were carrying their licenced guns while others were armed with lathis. They abused PW 1 Ram Pal demanded as to why he was plucking mangoes from the trees. PW 1 Ram Pal replied that the trees belonged to him and for that reason he was plucking mangoes. Upon this all the above persons pounced upon him and started inflicting injuries with fists and Lathis. He raised an alarm, upon which his sister PW 2 Km. Rakesh, PW 3 Babu Ram, Som Dutt, Daya Ram and a number of other persons came there and saved him. Mohar Singh and Preetam Singh fired two rounds each from the guns which they were carrying. Three shots hit PW 2 Km. Rakesh. Thereafter the assailants went away.
(7) P. W. 1 Ram Pal along with P. W. 2 Km. Rakesh went to Primacy Health Centre, Gangoh (Saharanpur) in order to get the injuries examined and obtain first aid. P. W. 4 Dr. N. K. Sharma was posted there as Medical Officer. He examined Km. Rakesh on the same day at 11. 00 A. M. , and prepared the injury report Ex. Ka-2. Following injuries were found upon her person :-1. Gun shot wounds 13 in number over right fore arm inner and back side in an area of 21. 0 cm x 9. 0 cm. size varying from 1/4 cm to 1/2 cm x 1/4 cm to 1/2 cm, depth would not be ascertained. The surface was red, underneath muscles were visible, burning was present in 10 wounds. They were bleeding. 2. Gun shot wounds 22 in number over Abdomen over right side, lateral and front aspect in an area of 20. 0 cm x 12. 00 cm. Depth could not be ascertained. Bleeding and burning present in 14 wounds, size varying 1/2 cm to 1/2 cm x 1/4 cm to 1/2 cm. 3. Gun shot wound over abdomen at 11. 00 'o' clock position, 7. 0 cm from umblicus with burnt margin measuring 1. 2 cm x 0. 2 cm. Pellet was palpable. Bleeding was present. 4. Gun shot wound 3. 0 cm x 0. 5 cm x 0. 2 cm over abdomen 14. 0 cm. from umblicus at 10. 00 'o' clock position with pellet palpable, margins were burnt, bleeding was present. 5. Gun shot wounds 1/4 cm x 1/4 cm. x Depth could nut be ascertained at left side of sternum. Bleeding was present at the lower end of sternum. 6. Gun shot wounds 14 in number over left arm front and inner side in an area of 11. 0 cm x 9. 0 cm. Size varying from 1/4 cm to 1/2 cm x 1/4 cm to 1/2 cm. Depth could not be ascertained. Bleeding and burning were present in 10 wounds. 7. Gun shot wounds 20 in number over left fore arm inner side in an area of 10. 0 cm x 9. 0 cm. Each wound measuring 0. 25 cm to 0. 5 cm. Depth could not be ascertained. Bleeding present burning in 9 wounds.
(8) ALL the injuries were fresh caused by fire arm. They were kept under observation. X-ray was advised. Injured was referred to district hospital, Saharanpur
(9) AT 11. 30 A. M. Dr. Sharma examined P. W. 1 Ram Pal and prepared injury report Ext. ka-3. He found the following injuries upon his person :-1. Red abraded contusion over left shoulder top aspect size 3. 5 cm x 1. 5 cm. 2. Red contusion 6. 0 cm x 1. 0 cm in the middle of right shoulder. 3. Red contusion 12. 0 cm x 1. 2 cm over back right side, 7. 0 cm below shoulder bone. 4. Red contusion 9. 0 cm x 1. 1 cm over back left side. 5. Red contusion 4. 0 cm x 1. 0 cm over right arm middle. Outer side oblique direction.
(10) ALL the injuries were fresh, simple and caused by hard blunt object.
(11) DR. Sharma in his statement gave out that these injuries could have been caused on the same day at 8. 00 A. M.
(12) KM. Rakesh was radiologically examined. Ext. ka-8 is the X-ray report. Radio opaque shadows were found in the abdomen, on the left upper arm and right fore arm. No internal damage was found. Dr. N. K. Sharma was of the opinion (Ext. ka-3) that no injury was grievous.
(13) P. W. 1 Ram Pal then went to police station Gangoh where he handed over written F. I. R. Ext. Kha-1 of this occurrence to head moharrir Sahendra Pal. On the basis of this report. H. M. Sahendra Pal prepared the chick report, made its entry in the G. D. and registered a case (Ext. ka-5).
(14) THE investigation of the case was taken up by P. W. 5, S. I. Sita Ram. He recorded the statements of the witnesses prepared the site plan Ext. ka-6 and after completing the investigation submitted the charge-sheet Ext. ka-7 against all the accused.
(15) ACCUSED pleaded not guilty and gave out that they have been falsely implicated in the case. Appellant Mohar Singh filed a written statement alleging that in the grove in question Kalu Ram father of P. W. 1 Ram Pal had only 1/10 share. This grove was purchased by them by means of a sale deed dated 3-4-70. It was denied that P. W. 1 Ram Pal has 1/4 share in the grove in question. On the date in question at about 8. 00 A. M. P. W. 1 Ram Pad, his brothers Jaipal, Nanhey and Vinod, their father Kalu Ram, their brother's wife Smt. Kareshni, their father Smt. Kamla and sister Km. Rakesh raided their house and inflicted injuries upon his mother Smt. Barjee and Smt. Shimla wife of his brother Preetam Singh. Nanhey climbed the roof of the house and tired from a country made pistol in order to kill Preetam Singh but the shot hit Km. Rakesh injuring her. Rishi Pal was also injured in this incident. They lodged F. I. R. of this incident Ext. Kha-4 on the same day at 3. 30 P. M. On the basis of this report a case was registered.
(16) P. W. 4, Dr. N. K. Sharma had also examined Smt. Barjee and Rishipal on 17-8-83 at 11. 15 A. M. and 11. 40 A M. respectively. He found the following injuries upon Smt. Barjee. The copy of the injury report. prepared by him, Ext. kha-1 : 1. Tender swelling 14. 0 cm x 8. 0 cm over left arm lower end having abraded contusion, Red 10. 0 cm x 2. 0 cm. 2. Red contusion 5. 0 cm x 1. 0 cm over spines at inter scapular space.
(17) ALL the injuries were fresh caused by hard blunt object. Injury No. 2 was simple. Injury No. 1 was kept under observation. X-ray was advised. Upon-X-ray examination injury No. 1 was found to be grievous. The supplementary report is Ext. Kha-3.
(18) ON the same day Dr. Sharma examined Rishipal and found the following two injuries : 1. Lacerated wound 1. 0 cm x 1. 0 cm, muscle deep over dorsum of left hand at base of index finger. The injury was bleeding on touch. 2. Abrasion 1. 0 cm x 0. 5 cm over left leg outer side 5. 0 cm above ankle joint. It was also bleeding on touch.
(19) THE colour of both the injuries was red. According to the Doctor both injuries were simple. Injury No. 1 was caused by hard blunt object while injury No. 2 was caused by friction against hard surface. The copy of the injury report of Rishipal is Ext. ka-2.
(20) THE prosecution in support of its case examined 5 witnesses. P. W. 1 Ram Pal, P. W. 2 Km. Rakesh and P. W. 3 Babu Ram are witnesses of fact. All of them in their examination in chief supported the prosecution story. P. W. 1 Ram Pal also proved the F. I. R. lodged by him at the police station.
(21) P. W. 4 Dr. N. K. Sharma and P. W. 5 S. I. Sita Ram are formal witnesses.
(22) ACCUSED did not adduce any evidence in defence.
(23) THE trial Court did not believe the presence of P. W. 3 Babu Ram at the time of incident. It however believed the statements of P. W. 1 Ram Pal and P. W. 2 Km. Rakesh and convicted the appellants as stated above. Hence this appeal.
(24) I have heard learned counsel for the appellant and the learned A. G. A. and have perused the record.
(25) THE first point urged is that the prosecution has not explained the injuries found upon the person of Smt. Barjee and Rishipal. According to the own version of the appellants the injuries of these two persons were not caused in the incident in question. According to them no incident took place as alleged by prosecution and in fact the incident took place at the house of appellant Mohar Singh. In case it is found that the incident took place in the grove as alleged by the prosecution then I do not think it would be the duty of the prosecution to explain the injuries found upon the persons of Smt. Barjee and Rishipal.
(26) BOTH the witnesses of fact are injured. Their presence at the scene of occurrence cannot be easily disputed. Both of them in their statements have fully corroborated the prosecution story about the factum of the incident in the grove. Their testimony finds support from the prompt F. I. R. lodged in the case. Since Km. Rakesh had a large number of gun shot injuries it is not improbable that P. W. 1 Ram Pal took her for medical aid and then lodged the F. I. R. According to defence version Nanhey one of the accused in the cross case fired from pistol which caused injury to Km. Rakesh. Nothing was elicited in cross-examination from Dr. Sharma to indicate that all the injuries of Km. Rakesh could have been caused by one shot. From a bare perusal of the injury report it is clear that they have been caused on different parts of the body and could not have been caused by one shot.
(27) IT was argued that on the 17th day of August no crop of mango is found on the trees, that by that time all the mangoes are plucked and as such there was no occasion for P. W. 1 Ram Pal to go to the mango grove and pluck the mangoes. P. W. 1 Ram Pal was given the suggestion that on that date there was no mango crop. He denied the suggestion. No evidence has been adduced in the case to show that in the second half of the month of August no mango is found over the trees. The trial court has stated that at Saharanpur mangoes are available even in the last days of the month of August. In the absence of any other evidence to show that all the mangoes are plucked before 17th of August I am of the opinion that the prosecution witnesses cannot be disbelieved on the ground that no mango could have been found over the trees at that point of time.
(28) IT was then urged that no blood or pellet was found by the Investigating Officer at the scene of alleged occurrence. I do not find anything in the statements of the two prosecution witnesses of fact to indicate that any pellets or blood had fallen upon the place of incident. Moreover the Investigating Officer visited the place of incident on 25-8-83. By that time all the traces of blood would have been obliterated as it was rainy season and it would also have been difficult to find any pellet after 8 days of the incident. The Investigating Officer should have visited the place of incident on the same day and should have tried to recover blood stained earth and pellets if any. This lapse on the part of the Investigating Officer is no doubt a serious one but in the circumstances, it cannot be said that it is fatal for the prosecution.
(29) IN view of the material placed on record by the prosecution and in view of the absence of any evidence on behalf of the defence to indicate that the incident took place at the house of the appellant and not in the grove in question. I am of the opinion that the trial court rightly came to the conclusion that the incident had taken place in the grove in question as alleged by the prosecution. It would not be out of place to point out here that none of the two injured is an accused in this case. The prosecution may have the responsibility of explaining injuries found upon the person of the accused but this responsibility cannot be extended to explain the injuries found upon any other person from the side of the accused who has not been named in the F. I. R. and is not alleged to have participated in the crime. The absence of explanation of the injuries of Smt. Barjee and Rishipal would not lead to the conclusion that the incident did not take place as alleged by the prosecution.
(30) IT was then urged that there is no motive for the accused to commit the crime. This argument does not and support from the evidence on record. P. W. 1 Ram Pal is claiming 1/4 share in the grove in question. According to the appellant the share of his father who is the real brother of appellants Mohar Singh, Preetam Singh and Devi Chand is only 1/10. There is definitely a dispute regarding the share of the father of P. W. 1 Ram Pal. In the circumstances it was but natural that when the first informant went to pluck mangoes from the tree claiming 1/4 share in the grove the appellants would have felt annoyed and would have tried to prevent him from plucking the mangoes. There was therefore clear motive for the appellants to commit the crime.
(31) IT was then urged that no independent witness has been examined in the case although some, of them were cited in the F. I. R. In his examination-in-chief P. W. 1 Ram Pal gave out that accused Mohar Singh is the Pradhan of the village and that he is threatening the witnesses to murder them if they appeared as witness in the case. It does not appear that this witness was cross-examined upon this statement. It therefore appears that because of the threats extended by appellant Mohar Singh no other witness came forward to depose against the accused. Moreover the examination of any other witness was not necessary for unfolding the prosecution story. The two witnesses of fact are injured. Their presence at the place of occurrence cannot be disputed. They have supported the prosecution story in all the material particulars. Their testimony also finds support from the injury report and the F. I. R. which was lodged without any undue delay.
(32) IT would not be out of place to point out here that P. W. 1 Ram Pal was suggested in cross-examination that he along with other persons entered into the house of Mohar Singh and inflicted injuries upon his mother Smt. Barjee and Smt. Shimla wife of appellant Preetam Singh. There is no injury report of Smt. Shimla. On the other hand the injury report of Rishipal has been filed but it was not suggested to this witness that Rishipal also received injuries in this incident. Moreover the injuries found upon the person of Rishipal are of superfluous nature. I did not find anything on the record to indicate as to what was the motive for P. W. 1 Ram Pal and others to inflict injury upon Smt. Barjee who is also the real grand mother of this witness. None of the witnesses was suggested motive for P. W. 1 Ram Pal and others to raid the house of Mohar Singh and inflict injury upon Smt. Barjee and Smt. Shimla.
(33) I have perused the evidence carefully and have considered the arguments advanced in the case. In my view the trial court was right in coming to the conclusion that the incident took place in the grove as alleged by the prosecution and that the appellants participated in that crime which resulted in injuries to the two prosecution witnesses. The appeal has no force and is liable to be dismissed.
(34) BEFORE parting with the judgment I would like to say that Km. Rakesh received as many as 7 gun shot wounds. Injury No. 2 are gun shot wound 22 in number over an area of 20. 0 cm x 12. 0 cm. Injuries. Nos. 3 and 4 are also gun shot wounds over abdomen. Abdomen is a vital part of the body. It was only the luck of Km. Rakesh that no internal damage was caused. These injuries were caused by three shots fired one after another. It is also in evidence that the appellants wanted to kill P. W. 1 Ram Pal but Km. Rakesh tried to save him as a result of which she received above injuries, P. W. 1 Ram Pal in his examination-in-chief gave out that Mohar Singh and Preetam Singh shouted that Ram Pal and others are to be killed and then fired from their respective guns. From all this it is clear that the intention of the appellants was to commit the murder of P. W. 1 Ram Pal and with that end in view they had come to the grove where he was plucking mangoes. Their intention was clearly to murder Ram Pal.
(35) Section 307 I. P. C. lays down
"whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. If hurt is caused to any person, by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
(36) ILLUSTRATION (1) to this Section is "a shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under, this Section.
(37) IT is thus clear that the appellants were guilty of the offence punishable under Section 307/34 I. P. C. The trial court committed a patent mistake in coming to the conclusion that offence under Section 324 I. P. C. alone has been made out and that no offence under Section 307 I. P. C. can be said to have been made out as the intention of the accused was not to commit the murder. From the statement of P. W. 1 Ram Pal it is clear that before firing they shouted that Ram Pal and others be killed. This would clearly establish their intention for committing the murder. The further fact that they fired one after another three shots which hit Km. Rakesh would also indicate that their intention was clearly to commit murder. No one would come armed with gun and fired just for the sake of fun. The trial court exhibited a total lack of knowledge of the circumstance under which offence under Section 307 I. P. C. can be said to have been made out.
(38) IT would be proper to state here the views the Supreme Court as expressed in State of Maharashtra v. Valram Bama Patil, 1983 All Cri R (Summary of Cases) 26 : (1983 Cri LJ 331). This Supreme Court said. "to justify a conviction under this Section it is not essential that bodily injury capable of causing death should have been inflicted, although the nature of injury actually carried may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even n some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused add its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see whether the act irrespective of the result was done with the intention or knowledge or under such circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
(39) SINCE hurt was caused to Km. Rakesh the appellant could be punished with life imprisonment. Since the offence committed by the appellants was punishable with imprisonment foe life benefit of First Offender Probation Act could not be extended to them. If appears that the trial court for one reason or another wanted to extend them the benefit of first Offender Probation Act and, therefore, intentionally came to the conclusion that no offence under Section 307/34 I. P. C. can be said to have been made out. The reason given by the trial court is perverse. It appears that the trial court was guided by some extraneous consideration in coming to the conclusion that the offence under Section 307/34 I. P. C. has not been made out and then gave the benefit of First Offender Probation Act. All the appellants are grown up. There is no extenuating circumstance. From the statement of P. W. 1 Ram Pal it is clear that there has already been previous criminal litigation between the parties. It was not a case at all for granting First Offender Probation Act.
(40) THE Registrar of the Court is directed in place the copy of this judgment before the Hon'ble Administrative Judge concerned for such action against the trial Judge as he deems fit. In the result the appeal is dismissed. Appeal dismissed.
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