In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 730/2001 (Old No. 523/1984) 1- Banta Singh 2- Karnail Singh, Sons of Inder Singh, Both R/o Vilalge Ratan Kunda, P.S. Sitarganj, District Nainital ….Appellants. Vs State ….Respondent. Sri A.S. Gill, learned counsel for the appellants. Sri G.S. Sandhu, learned A.G.A. for the State. Hon’ble B.C. Kandpal, J. The criminal appeal has been preferred against the judgment and order dated 10-2-1984, passed Special Judge/ Addl. Sessions Judge, Nainital, in S.T. No. 102/1981, State Versus Indra Singh and others, convicting the accused/appellants Karnail Singh and Banta Singh U/S 324 I.P.C. and 324/34 I.P.C. respectively and sentencing both of them to undergo R.I. for two years under the aforesaid sections. Both these accused/appellants Karnail Singh and Banta Singh were acquitted from the charges U/S 148 and 307 I.P.C. and 149 and 304/149 I.P.C. respectively. 2- The co-accused Indra Singh, Mauja Singh and Balwant Singh were acquitted of the charges 148 and 307/149 I.P.C. 3- Briefly stated the facts of the case are that Indra Singh accused was on inimical terms with Gurudayal Singh on account of litigation in respect of some agricultural field. On 26-10-1980 at about 5 P.M. when Gurudayal Singh along with his brother Ratan Singh was harvesting paddy crop in his field, then accused Indra Singh armed with Ballam, karnail Singh and Banta Singh armed with guns and Balwant Singh and Fauja Singh armed with pistols arrived at the spot. On 2 seeing these accused, Gurudayal Singh and his brother tried to run away from that place. Accused Indra Singh then exhorted the others to fire at the complainant and his brother. At this accused Banta Singh and Karnail Singh fired towards them. Gurudayal Singh was injured by the pellets which hit him on the back side of his legs. In the mean time Jagir Singh and Lal Singh had arrived there and challenged the accused. The next morning Gurudayal Singh injured got a report, Ext. Ka.1 written and lodged it at Police Station, on the basis of which the chick F.I.R., Ex. Ka.2 was prepared by Head Moharir Rewadhar Sharma. He entered the case at report No.14 of the General Diary on 27-10-1980 at 10 A.M., the copy of which is Ext. Ka.3. 4- Injured Gurudayal Singh was medically examined by Dr. Ram Swarup, at P.H.C. Sitarganj, on 27-10- 1980 at 9.55 A.M. The Medical Officer found the following injuries on his person:- 1. A lacerated circular wound 0.3 cm in diameter over the back of right thigh, 18 cm above the crease of the hollow of the knee ( right). Clotted blood and serum was present. No blackening, scorching or tattooing present. Margins purplishly contused. Advised x-ray. Pellets not palpable. 2. A lacerated circular wound 0.3 cm x 0.3 cm over the back of right leg 8.5 cm below the crease of the hollow of right knee. Clotted blood and serum present. No blackening, scorching or tattooing. Advised x-ray. 3. A lacerated wound 0.4 cm x 0.2 over the outer surface of left leg, 11 cm below the level of the tallow of left knee. Directed forward and downward obliquely. Clotted blood and serum present. No scorching, blackening or tattooing. Advised x-ray. Pellets not palpable. 3 In the opinion of the Medical Officer all the injuries were between half and one day old and had been sustained by some fire arm. He kept them under observation and advised x-ray. He prepared injury report, Ext. Ka.7. On 5.11.1980 he gave supplementary injury report Ext. Ka.8 on the basis of x-ray plate. According to this report foreign bodies were present in injury Nos. 1 and 2. All the three injuries sustained by the complainant were simple in nature. 5- The investigation of the case was conducted by S.I. Khushalmani Bhatt, who recorded the statements of the witnesses and inspected the place of occurrence and prepared site plan Ext. Ka.4 After completing the investigation, he submitted charge sheet, Ext. Ka. 5 against accused Indra Singh, Banta Singh, Fauza Singh and Balwant Singh and separate charge sheet, Ext. Ka.6 was given against accused Karnail Singh. 6- On committal to the Court of Sessions, the Sessions Judge framed charge U/S 148 I.P.C. against all the five accused. Accused Karnail Singh was further charged U/S 307 I.P.C. and remaining four accused were charged U/S 307/149 I.P.C. The accused persons pleaded not guilty and claimed their trial. 7- In order to bring home guilt to the accused persons, prosecution examined complainant/injured Gurudayal Singh, P.W.1, eye witness of the occurrence Jagir Singh, P.W.2, Head Constable Rewadhar Sharma, P.W.3, I.O. S.I. Khushalmani Bhatt, P.W.4 and Dr. Ram Swarup, P.W. 6, besides the affidavit of Constable Suresh Kumar, P.W.5. 8- Out of the prosecution witnesses, P.W.3 Rewadhar Sharma is the scribe of the chick F.I.R. and report No. 14 of the G.D., S.I. Khushalmani Bhatt, P.W. 4 is the I.O. of the case, Constable Suresh Kumar, P.W. 5 accompanied the injured upto the Hospital and Dr. Ram 4 Swarup, P.W.6 medically examined the injured. These are formal witnesses. 9- P.W.1 Gurudayal Singh is the injured eye witness. He has narrated the prosecution story. This witness has deposed that when all the five accused arrived at the spot, he and his brother Ratan Singh were harvesting the paddy crop. Seeing the accused both of them tried to run away. He also stated that the accused persons were armed with deadly weapons such as Ballam, guns and pistols. According to this witness Indra Singh exhorted his associates to fire on them and accused Karnail Singh and Banta Singh fired gun shots. He was hit by the pelltes on the back side of his leg. Meanwhile witnesses Jagir Singh and Lal Singh arrived and when they challenged the accused, they made good their escape. This witness has admitted that the incident was the result of his litigation with accused Indra Singh due to enmity. 10- P.W.2, Jagir Singh is the eye witness of the occurrence. He has deposed that at the time of incident he and his father were harvesting paddy crop in their field, near to the field of complainant. At about 5 P.M. he heard a shot being fired and when he stood up he saw that Banta Singh and Karnail Singh were firing from their guns towards Gurudayal Singh and Gurudayal Singh and Ratan Singh were trying to run away. He also deposed that Gurudayal Singh was hit by the pellets and when they challenged the accused, they left the place of the occurrence. 11- The accused in their statements U/S 313 Cr.P.C. denied the prosecution allegations and stated that they have been falsely implicated in the crime. However they adduced no defence evidence. 12- The Sessions Judge having heard learned counsel for the parties and perusing the evidence on record 5 convicted the accused/appellants Karnail Singh and Banta Singh U/S 324 I.P.C. and 324/34 I.P.C. respectively and sentenced both of them to undergo R.I. for two years under the aforesaid sections. Both these accused/appellants Karnail Singh and Banta Singh were acquitted from the charges U/S 148 and 307 I.P.C. and 149 and 304/149 I.P.C. respectively. However, the co-accused Indra Singh, Mauja Singh and Balwant Singh were acquitted of the charges 148 and 307/149 I.P.C. levelled against them. 13- Feeling aggrieved, the accused/appellants Karnail Singh and Banta Singh have filed the appeal before this Court. 14- I have heard the learned counsel for the appellants, learned A.G.A. and perused the record. 15- P.W.1 Gurdayal Singh is an injured witness. He was medically examined by the Doctor on 27.10.1980 at 9:55 A.M. He has stated in his deposition before the court that all the five accused including the appellants arrived on the spot when he along with his brother Ratan Singh was harvesting the paddy crop. He has further deposed that the accused persons were armed with the deadly weapons such as Ballam, Guns an Pistols and the accused – Inder Singh exhorted his associates to fire on Gurudayal Singh and his brother. Then the accused – Karnail Singh and Banta Singh fired the shot at them which hit on the back side of his leg. The enmity between the accused persons and the complainant side is evident from the evidence on record as prior to this incident some litigation has taken place between the injured Gurudayal Singh and the accused – Inder Singh. Both the appellants before this Court 6 Banta Singh and Karnail Singh are sons of Inder Singh who exhorted them to fire. The statement of this witness is corroborated on all the material details by Jagir Singh – P.W. 2 who has stated that his father Lab Singh was harvesting paddy crop in his field which is adjacent to the field of complainant. This witness heard firing shots and he stood up and saw that Banta Singh and Karnail Singh were firing from their relevant guns towards Gurudayal Singh and his brother – Ratan Singh when they were trying to run away. He has further deposed that on account of the fire done by Banta Singh and Karnail Singh, Gurudayal Singh sustained gun shot injury and when Lab Singh and Jagir Sigh challenged the accused persons then they left the place of occurrence. 16- The trial court had come to the conclusion that the implication of the accused – Inder Singh, Fauja Singh and Balwant Singh was false and accordingly held that the charges levelled against them were not proved to the hilt and beyond reasonable doubt. The trial court therefore, acquitted these three persons of the charges levelled against them. It is worthy to mention here that no appeal against the acquittal of these three persons has been preferred before this Court. As far as the case of the appellant Karnail Singh and Banta Singh is concerned, it is proved from the evidence on record that they were assigned with the role of having a gun and fired couple of shots at the complainant. But from the nature and seat of injuries it cannot be said that the appellant Karnail Singh and Banta Singh in fact wanted to kill the complainant. The doctor found that the injury sustained by Gurudayal Singh was simple in nature, therefore, it had not been the intention of Karnail Singh and Banta Singh to cause the death of 7 Gurudayal Singh that there was nothing to deter them for achieving the aim. 17- The trail court has rightly convicted the accused Banta Singh and Karnail Singh for the charges under Sections 324 and 324/34 I.P.C. respectively. The presence of the complainant – Gurudayal Singh cannot be doubted at the place of occurrence at the relevant time. There is no possibility for the complainant to falsely implicate the accused/appellants so as to substitute them in place of real culprit. Thus the statement of Gurudayal Singh in respect of accused/appellants Karnail Singh and Banta Singh cannot be discarded. 18- Learned counsel for the appellant has argued that there is an inordinate delay in lodging the First Information Report which creates a doubt with regard to the prosecution case. 19- I do not find any force in this argument. No doubt in the instant case there is delay in lodging the First Information Report as the incident is alleged to have been taken place on 26.10.1980 at about 05:00 P.M. while the report was lodged on 27.10.1980 at 10:00 A.M. The distance of the police station is 12 km from the place of occurrence, but the explanation given by the complainant – Gurudayal Singh – P.W. 1 for this delay appears to be quite cogent and convincing as he has deposed that since it had grown dark after the incident hence the report could not be lodged on account of fear of the accused persons. 20- Learned counsel for the appellants has further argued that the three accused persons, namely, 8 Inder Singh, Fauja Singh and Balwant Singh have been acquitted by the court below therefore, the case against the present appellants becomes doubtful. 21- I again do not find any force in this argument. Minor discrepancy in the statement of the witnesses does not make the entire statement false. The court has to separate the grain from the chaff as the Maxim “Falsus in Uno Falsus in Omnibus” is not applicable in India and the court has to appraise the evidence in order to see as to what extent it is worthy for acceptance. Merely because of the reason that in one respect the evidence appears to be insufficient to rely upon the testimony of the witnesses, it does no necessarily follow as a matter of law, that it must be discarded in all respects. As I have already observed on the basis of evidence available on record that the presence of complainant – Gurudayal Singh who is the injured person cannot be doubted at the place of occurrence at relevant time, therefore, on consideration of the entire evidence on record and the circumstances of the case, I am of the view that the appellants Karnail Singh and Banta Singh are found guilty of the offence punishable under Section 324 as well as 324/34 I.P.C. respectively. 22- I do not find any infirmity in the impugned judgment and order passed by the trail court convicting the accused appellants. 23- The appeal is liable to be dismissed and the judgment and order dated 10.02.1984 passed by Special Judge/Addl. Sessions Judge, Nainital in S.T. No. 102 of 1981 State Vs Inder Singh & others relating to the conviction of the appellants is confirmed. 9 24- It is to be noted here that the occurrence in this case is said to have taken place in the year 1980 which is about 26 years ago, the appellant Banta Singh as per the record is about 72 years, at present therefore, having regard to all the circumstances, I think, that it is not a fit case where the appellants should be sent back to jail. 25- In the result while the convictions of the appellants are confirmed, the sentence is reduced to the period already undergone by them and instead of sending the appellants to jail again, I impose a fine of Rs. 5,000/- on each of the appellants and in default of payment of fine, the appellants will have to undergo the sentence awarded by the trail. 26- Accordingly, the appeal is partly allowed. The conviction of the appellants is confirmed and the sentence awarded by the trail court is modified to the extent that the appellants are sentenced to the period already undergone by them and imposed a fine of Rs. 5,000/- each instead of the sentence of 2 years rigorous imprisonment awarded by the trail court. The appellants will have to undergo the period of sentence awarded by the trail court in case, if there is a default in payment of the fine imposed by the court below. (B.C. Kandpal, J.) Dated: July 25, 2006. Aswal