Judgment reserved IN THE HIGH COURT OF UTTARAK11HAND AT NAINITAL Criminal Appeal No. 133 of 2001 Old Number Criminal Appeal No. 3293 of 1999 Jeevan Singh and another. ………..Appellants. Versus. State of Uttar Pradesh now State of Uttarakhand. …….Respondent. Present: Mrs. Pushpa Joshi, learned counsel for the appellants. Mr. Nandan Arya, learned AGA for the State. Hon’ble Nirmal Yadav, J. Present appeal is directed against the judgment and order dated 30.11.1999 passed by Special Judge, CBI/ Additional Sessions Judge, Nainital vide which accused appellant Kali alias Kulwant has been convicted for the offence punishable under section 307 Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced to undergo 5 year rigorous imprisonment and to pay fine of Rs. 500/- while accused appellant Jeewan Singh has been convicted for the offence punishable under section 307 IPC read with section 114 IPC and sentenced to undergo 5 years rigorous imprisonment and to pay fine of Rs. 500. In default of payment of fine, they have been ordered to further undergo imprisonment for 15 days simple imprisonment. 2 The facts in brief are that on 15.12.1995, Munsha Singh submitted a written complaint (exhibit Ka 1) before the Incharge, police station Nanakmatta stating therein that he along with his brother Jageer Singh had gone to attend the engagement ceremony of their cousin brother’s (Dilip Singh) son at village Sunkhari Khurd. He had arranged a party on the said occasion. Jeewan Singh along with his son-in-law Kali alias Kulwant was also present in the party. At about 4.00 p.m., Jeewan Singh and Kali alias Kulwant had taken their meals and thereafter, they were creating lot of noise in the party, therefore, Jageer Singh suggested Jeewan Singh and Kali alias Kulwant that since they had already taken their meals so they should leave the place so that other persons may also take their meals. On this Jeewan Singh exhorted and asked his son-in- law Kali alias Kulwant that “ns[krk D;k gS ekj lkys dks“. On this accused Kali alias Kulwant took out his country made pistol from the pocket of his pants and fired at Jageer Singh, as a result of which the pellets hit on the head and neck of Jageer Singh. The occurrence was witnessed by Santa Singh, Harbans Singh. Jageer Singh was immediately removed to the hospital by Sher Singh. Jageer Singh was medically examined at 05.00 p.m. vide medico legal report exhibit Ka-2. After medical examination of Jageer Singh in the hospital, complainant went to the police station and submitted written complaint (exhibit Ka-1) on the basis of which chick FIR (exhibit Ka-5) was recorded at 05.45 p.m. in police station Nanakmatta. The investigation was 3 conducted by Jitendra Kumar Tyagi, who recorded the statements of Munsha Singh and Jageer Singh. He arrested both the accused from their house on 17.12.1995. On 18.12.1995 site plan of place of occurrence was prepared. The blood stained headgear (turban) of Jageer Singh was sealed in separate parcel and taken into possession. On completion of the investigation, challan was presented in the court and accused appellants no. 1 and 2 were chargesheeted for the offence punishable under section 307 read with section 114 IPC and under section 307 IPC respectively, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined PW1 Munsha Singh, PW2 Jageer Singh (injured witness), PW3 Dr. Kumar Sambhav, who medico legally examined Jageer Singh, PW4 Dr. R.C. Garg, who conducted X-ray on 15.12.1995, PW5 Jitendra Kumar Tyagi, is the Investigating Officer. Accused when examined under section 313 Cr.P.C. denied the allegations put to them by the prosecution and pleaded false implication. They have stated that since eye witnesses Munsha Singh and injured Jageer Singh are brothers, therefore, they have falsely deposed against them. However, the accused did not produce any evidence in defence. I have heard Mrs. Pushpa Joshi, learned counsel for the appellants and Mr. Nandan Arya, learned AGA for the State. 4 The prosecution case mainly rests on the testimony of PW1 Munsha Singh and PW2 Jageer Singh. Both of them have categorically stated that on 15.12.1995, they were present at the house of Dilip Singh in the engagement party of his son. Kali alias Kulwant and Jeewan Singh were also present in the party. Since they were creating nuisance, Jageer Singh asked them to leave the place so that other people could take their meals. On this Jeewan Singh got angry and stated as who was he to raise objection and therefore, exhorted his son-in-law to cause injury to him. Accordingly, Kali alias Kulwant took out his country made pistol and fired at Jageer Singh. Learned counsel for the appellants submitted that both Munsha Singh and Jageer Singh are interested witnesses being brothers. The prosecution has not produced any independent witness though many persons were present in the party, even Dilip Singh at whose house alleged occurrence took place, has not been produced, therefore, prosecution case suffers from serious doubts. Learned counsel further argued that even the alleged place of occurrence is not proved by any cogent evidence. Admittedly, no blood stained earth was lifted from the place of occurrence, and it can safely be assumed that alleged occurrence took place somewhere else. It was further submitted by the learned counsel for the appellants that as per both the witnesses, clothes of Jageer Singh were blood stained but his clothes were not sent for serological 5 examination to the Chemical Analyst nor clothes were produced in the court. Learned counsel for the appellants further argued that admittedly there was no provocation and it was a sudden occurrence. It has also been admitted by both the witnesses that there was no enmity nor there was any dispute between Jageer Singh and accused persons, thus, there was no motive on the part of the accused appellants to cause such injury which would result in death of Jageer Singh. Learned counsel for the appellants further submitted that medical evidence also does not support the prosecution case. In the medical report (exhibit Ka-2) and supplementary medical report (exhibit Ka-3) doctor has not given any opinion regarding nature of injury, thus, it is not proved as to whether injury on the person of Jageer Singh was grievous in nature, what to say of being dangerous to life. She further argued that admittedly no internal damage was caused to the body of injured Jageer Singh. She argued that keeping in view the nature of injury no case under section 307 IPC is made out against the appellants and at the most case under section 324 IPC is made out against the appellants. Lastly, learned counsel for the appellants argued that keeping in view the fact that accused had no intention to murder Jageer Singh nor the accused had preplanned as occurrence took place suddenly, thus, ends of justice would meet if offence is converted from section 307 IPC to section 324 IPC. Learned counsel for 6 the appellants further submitted that at present accused Jeewan Singh and Kali alias Kulwant are 70 year and 41 year old respectively. She further submitted that accused appellants have no criminal history and this was there first offence, therefore, lenient view may be taken while awarding the sentence. On the other hand leaned AGA submitted that both PW1 Munsha Singh and PW2 Jageer Singh the injured witness have fully supported the prosecution case. He further submitted that non examination of Dilip Singh or any other person, who were present in the party, does not at all demolish the prosecution case. It is pointed out that even Dilip Singh is the cousin of Munsha Singh and Jageer Singh. Other persons, who were present in the party, must also be their relative. However, there is nothing on record to show that Munsha Singh and Jageer Singh had any enmity or bias against the accused to falsely implicate them. There is not even a suggestion to the witnesses that they had any motive to falsely implicate the accused persons. Learned AGA pointed out that the only suggestion given to the witnesses is that injured Jageer Singh might have received injury when firing was made on the happy occasion of engagement ceremony. On careful consideration of rival submissions of the learned counsel for the parties and after going through the entire evidence on record, I am of the view that there is no circumstance or evidence to disbelieve 7 the testimony of PW1 Munsha Singh and PW2 Jageer Singh. The argument of learned counsel for the appellants that no independent person has been produced cannot be accepted, in view of the fact that party was at the house of Dilip Singh, who was cousin of injured Jageer Singh and Munsha Singh and all the persons present in the party must be their relatives, therefore, in such circumstance nobody could have said to be an independent person. Learned counsel for the appellants failed to point out any material contradiction or discrepancy in the testimony of PW1 and PW2. Moreover, it is not the quantity of the witnesses but the quality of the witness which is to be judged while considering the evidence on record. After going through the testimony of PW1 Munsha Singh and PW2 injured Jageer Singh, I am of the opinion that they have been thoroughly cross examined but nothing could be elicited to shatter their testimony. Their statements appear to be consistent and truthful. Their testimony further finds support from medical evidence. As per medical report exhibit Ka-2 prepared by Dr. Kumar Sambhav, multiple penetrating wounds measuring 3-4 mm have been found over the left side of the neck particularly in the lower part and left side of face extending upto left side of temple. There is blackening and burning in some of the wounds. There is laceration of left ear on its posterior part. Number of penetrating wounds is about 40-50. The depth of wounds is about 1-2 cm. Dr. 8 Kumar Sambhav while deposing before the court stated that injuries on the person of injured Jageer Singh were grievous. 13X-ray was conducted by Dr. R.C. Garg. As per X-ray report, Dr. R.C. Garg found about 14 radio opaque shadows measuring about 1.2 cm X 1.2 cm in the lateral side of cervical spine and about 30 radio opaque shadows were found in the chest of injured. Dr. Kumar Sambhav in the cross examination stated that all the injuries could have been caused when fire was shot from front side or even from left side of victim’s neck. Learned counsel for the appellants submitted that blackening and burning could not be possible as accused Kali alias Kulwant was stated to be at a distance of three paces from injured Jageer Singh. She referred to the site plan exhibit Ka-7 where distance between point ‘A’ wherefrom accused Kali alias Kulwant had fired at Jageer Singh, who was present at point ‘C’ and distance between point ‘A’ and ‘C’ is mentioned as three paces. The argument of learned counsel does not have any force. Even if the distance between both of them is three paces when accused Kali alias Kulwant fired at him, the length of his hand should be deducted from the said distance, thus, the distance between the assailants and the victim would be only about 2 feet or so, thus, blackening and burning could be possible on the injuries of Jageer Singh. Therefore, the findings of the learned trial court with regard to injuries having been caused by Kali 9 alias Kulwant to injured Jageer Singh cannot be interfered with. The only point of consideration is as to what offence is made out in view of the nature of injuries received by Jageer Singh and other circumstances. No doubt there is no evidence that accused or injured had any enmity prior to the date of occurrence. All of them had come to attend the engagement ceremony at the house of Dilip Singh, however, on account of Jageer Singh asking Jeewan Singh and Kali alias Kulwant not to create nuisance and to leave the place so that others could take their meals, Jeewan Singh felt insulted and thereupon asked his son-in-law Kali alias Kulwant to cause injuries. Kali alias Kulwant being son-in-law obediently carried out the order of his father-in-law, thereby caused injuries to Jageer Singh, however, there does not appear to be any intention to cause such injury which would result into death of Jageer Singh. In order to hold a person guilty of an offence for an attempt to murder, two ingredients must be present. First, an intention or knowledge to commit the murder and second, the doing of an act towards it. Therefore, the most material ingredient is intention or knowledge and not consequence of the actual act done for the purposes of carrying out the intention. Thus, it is necessary for the prosecution to prove that the intention or knowledge of the accused was such as is necessary to constitute murder and without this ingredient being established no offence of attempt to murder could be made out. The intention, is of course 10 gathered from the circumstances and not merely from the consequence that ensue. The nature of weapon used, the manner in which it is used, the motive for the crime, severity of the blow and the part of the body where the injury is inflicted, are some of the factors that may taken into consideration to determine the intention. In the instant case, it is not proved that the accused had any intention to commit the murder. It was simply on account of some utterings made by Jageer Singh and thereupon Jeewan Singh asked Kali alias Kulwant to cause injuries to him. There appears to be no intention either on the part of Kali alias Kulwant or Jeewan Singh to cause such injuries which would have resulted into death of Jageer Singh. Moreover, the nature of injuries found on the person of Jageer Singh has not been opined to be dangerous to life. In the medical reports exhibit Ka-2 and exhibit Ka-3, doctor has not given the nature of injuries, however, while deposing before the court, he has stated that injuries on the person of Jageer Singh were grievous in nature. Thus, from the injuries caused on the person of Jageer Singh, intention or knowledge to cause death cannot be inferred and therefore, I am of opinion that offence under section 307 IPC is not made out and only offence punishable under section 324 IPC is made out against the accused Kali alias Kulwant and offence punishable under section 324 IPC read with section 114 IPC is made out against accused Jeewan Singh. 11 1 Keeping in view the facts and circumstances of the case, the appeal is partly allowed. The accused appellant Kali alias Kulwant is held guilty for the offence punishable under section 324 IPC and convicted accordingly. Accused appellant Jeewan Singh is held guilty for the offence punishable under section 324 IPC read with section 114 IPC and convicted accordingly. From the record it is seen that accused appellants have already undergone imprisonment of about 2 ½ month. Both the accused are,7 thus, sentenced to the period already undergone by them. However, they are ordered to pay fine of Rs. 5000/- each. The fine shall be deposited by the appellants before the trial court within a period of one month from today. Out of the fine, so deposited, Rs. 8000/- shall be paid to injured Jageer Singh. In default of payment of fine, the appellants shall undergo six month rigorous imprisonment. Appellants are on bail. They need not surrender. Their bails bonds are cancelled and sureties are discharged. The trial court shall ensure the compliance of this order. Let the lower court record be sent back. (Nirmal Yadav, J) 23.07.2010 S KS