JUDGMENT Mukteshwar Prasad, J.
1. This criminal appeal was filed by two accused Guddan and Tara Chand against the judgment and order-dated 15.10.1980 passed by Sri S.K. Agnihotri, the then Additional Sessions Judge, Aligarh in S.T.No. 2 of 1980, whereby he convicted accused Guddan under Sections 307 and 323 of Penal Code and sentenced him to undergo rigorous imprisonment for a period of four years and three months respectively. He was further found guilty under Section 25 of Arms Act and was directed to suffer rigorous imprisonment for a period of two years. Accused Tara Chand was also found guilty for committing offences punishable under Section 307 read with Section 34 of Penal Code and Section 25 of Arms Act and was sentenced to undergo rigorous imprisonment for a period of 15 months and one month respectively thereunder. All the sentences of both the accused were directed to run concurrently.
2. During pendency of this appeal, appellant No. 2 Tara Chand son of Kali Charan expired and his appeal stood abated by order of this Court dated 15.12.2003.
3. Briefly stated, the facts of the case were as under:---
PW 1 Kanti Prasad and PW 2 Desh Raj sons of Soran Lal were real brothers and both lived in Mohalla Sarai Mansingh Police Station Shasnigate, Aligarh PW 2 Desh Raj was elder brother. Both brothers were working on the furnace on 28.7.1979. On the same day, at about 3.00 p.m. Guddan, son of Hasmukh accompanied by Tara Chand son of Kali Charan reached the house of informant (Kanti Prasad) and asked them as to why did they complain about them to Kolies of Misri Sarai. Desh Raj replied that he had made no complaint Tara, who was having a cartridge, passed on the cartridge to Guddan, who took out his country made pistol. Tara asked Guddan to teach a lesson for making false complaint. Guddan filled up the cartridge in his Tamancha and fired at Desh Raj with a view to kill him. The pellets hit at the right shoulder of Desh Raj and he sustained grievous Injuries. Kanti Prasad and his brother Prem Pal, Tara Chand and his uncle Kali Charan arrived there. Lekhraj and others also reached there and they succeeded in apprehending Guddan on the spot after using force. Guddan was apprehended by the informant along with Tamancha and cartridge. He, however, struck barrel of pistol on the head of Kanti Prasad and caused injuries.
4. A report of the incident was prepared by Kanti Prasad. He accompanied by Anwar Ahmad and Prem pal reached the Police Station and handed over his report to the Police. He further deposited country made pistol along with used cartridge and two cartridges at the Police Station and H.M. Sita Singh prepared a Fard and obtained signatures of Anwar Ahmad and Kanti Prasad and thumb impression of Prem Pal.
5. PW 5 H.C. Sita Singh prepared Chik report also and made entry in the G.D. at serial No. 29.
6. Desh Raj was sent to M.S. Hospital, Aligarh for medical examination of his injuries through S.I. Bahadur Singh.
7. PW 7 Dr. A.K. Sharma, the then Emergency Medical Officer examined the injuries of Desh Raj at 3.30 p.m. on 28.7 1979 and found the following injuries on his person.
1. Gun-shot wound of entrance 3 1/2" x 2 1/2" x bone deep on the right hand on the front and in the middle. There was blackening present on the margins of the wound.
2. Gun-shot wound of exit 3 1/2" x 1 1/2" x bone deep on the right hand on the back and on the middle of it.
3. Lacerated wound 4" x 3" x bone deep on the right hand on the back and inner aspect of it. This wound was also an exit gunshot wound with facture of bone in it.
4. Multiple gun-shot wounds of entrance each in size 1/10" x 1/10" x skin deep which were spread over n(sic) area of 8" x 6" on the right side of the chest on the outer aspect of it. X-ray of this injury was advised.
8. In the opinion of Dr. Sharma, the injury Nos. 1, 2 and 3 were found to be grievous. The injury No. 4 was kept under observation. All the injuries were fresh and were caused by firearm. Deshraj was admitted in the hospital because his general condition was serious. The injuries were dangerous to his life.
9. Dr. Sharma further examined Tara Chand on the same day at 5.45 p.m. and found three abrasions on different parts of body.
10. On the same day at 7.20 p.m., Dr. Sharma examined the injuries of Kanti Prasad and found one lacerated wound 1 cm. x 0.2 cm. skin deep on the top of head. Bleeding was present. Two abrasions were found on lower part of left thigh and left foot. All the injuries were fresh and were caused by blunt hard object. The injury Nos. 2 and 3 were caused by friction against hard object.
11. The case was investigated as usual by PW 6 S.I, Munna Lal. He visited scene of, incident at 4.00 p.m. on the same day and prepared a site plan. He interrogated the witnesses He obtained sanction of the District Magistrate for prosecution of the accused under Section 25 of the Arms Act and after completing investigation, submitted charge sheet.
12. Accused Guddan was charged under Sections 307 and 323 of Penal Code. He was further charged under Section 25 of Arms Act on 1.5.1980. He pleaded not guilty to the charges.
13. At the trial the prosecution examined seven witnesses in all. They are PW 1, Kanti Prasad who is informant and one of the injured. PW 2 Desh Raj who is said to have sustained injuries in the course of incident. PW 3 Prem Pal and PW 4 Tara Chand are said to be eyewitnesses of the incident PW 5 S.I. Sita Singh and PW 6 S.I. Munna Lal are formal witnesses, P.W. 6 S.I. Munna Lal is Investigating Officer of the case. PW 7 Dr. A.K. Sharma, E.M.O. had examined the injuries of Desh Raj, Kanti Prasad, and Tara Chand on 28.7.1979.
14. Accused Guddan in his statement totally denied his complicity in the alleged offence and pleaded his total ignorance about, the incident. According to him, Desh Raj was employed in his Karkhana and his sister Kamla used to accompany him. He too used to go to the house of Desh Raj and developed illicit intimacy with Kamla, sister of Desh Raj. He was falsely implicated. No evidence was led in defence.
15. After close scrutiny of the evidence on record and considering argument advanced on behalf of parties, learned trial Judge found both the accused guilty and convicted and sentenced them, as indicated above.
16. I have heard Sri Gyanendra Kumar Singh, Advocate, learned Amicus Curie, at length and learned A.G.A. and have perused the record carefully.
17. Learned Amicus Curie for the appellant has assailed the judgment under appeal mainly on the grounds that accused had developed illicit intimacy with sister 6f Desh Raj, injured and as such, Desh Raj and his family members were annoyed with the appellant and he was falsely implicated. It was also contended that Guddan was-not arrested at the spot, as alleged by the prosecution and sentence passed against the appellant is excessive and has to be reduced in case the appeal is dismissed.
18. On the other hand, learned counsel for the State has supported the judgment and contended that court below rightly found the accused Guddan guilty for making murderous assault on Desh Raj and observed that he deserves no leniency. He was apprehended on the spot along with his weapon (Tamancha) by the witnesses and no delay took place in lodging the First Information Report at the Police Station and medical examination of the injured. Therefore, the appeal is liable to be dismissed
19. I have given my anxious consideration to the submissions made on behalf of the parties. I have further scrutinized the entire oral and documentary evidence on record led by the prosecution carefully and I find that the court below committed no error in appraisal and scanning of the evidence.
20. First of all, I intend to scrutinize the medial evidence on record to find out as to whether offence in question was committed on the date and time, as alleged by the prosecution. Besides, ocular testimony of the injured, his brother Kanti Prasad, two eyewitnesses Prem Pal and Tara Chand, the prosecution relied upon the testimony of Dr. A.K. Sharma, who examined the injuries of Desh Raj and Kanti Prasad on 28.7.1979 itself and found injuries on their person. As rioted above, Dr. Sharma, the then E.M.O. examined Desh Raj at 3.30 p.m. on 28.7,1979 itself and found three gun shot wounds, one lacerated wound on right arm and chest. According to Dr. Sharma, all the injuries were caused by firearm and injury Nos. 1, 2 and 3 were grievous in nature. Moreover, the injuries were fresh and general condition of Desh Raj was very low and he was admitted in the hospital. Dr. Sharma deposed in the court that there was danger to the life of Desh Raj on account of injuries He further opined that injuries in question could be caused at about 3.00 p.m. on the same day. Besides medical evidence, there is sufficient and reliable oral evidence of injured and eyewitnesses on record to the effect that on 28.7.1979 at about 3.00 p.m., the assailant made an attempt to kill Desh Raj by firing a shot from his Tamancha and in the course of incident, assailant caused "injuries on the head of Kanti Prasad also. Therefore, in view of the medical evidence on record, coupled with oral testimony Of the injured and others, I hold that the trial Judge rightly concluded that an attempt to kill Desh Raj was made on the impugned date and time, as alleged by the prosecution. I find no perversity in the finding recorded by the court below.
21. Now the second pertinent question is that whether appellant Guddan is responsible for causing the aforesaid injuries to Desh Raj and Kanti Prasad at the place and in the manner, as alleged by the prosecution To prove this part of its accusation, the prosecution examined four witnesses in all, as noted above. Desh Raj and his younger brother Kanti Prasad were assaulted at the, hand of appellant just outside their house on the date in question and it was Guddan, who made murderous assault by firing a shot at Desh Raj, PW 2 Desh Raj and his brother PW 1 Kanti Prasad fully supported the prosecution story and gave out in clear words that on the impugned date at about 3.00} p.m. they were working at the furnace inside the house, both the appellants (Guddan and Tara Chand) arrived there and put a question as to why did they make a complaint regarding them to Kolies of Misri Sarai, On total denial by Desh Raj, all came out of the house. Accused Tara Chand instigated his associate Guddan for teaching a lesson for making a false complaint and with this end in view, he handed over a cartridge to Guddan. He filled up the same in Tamaricha and fired at Desh Raj. This incident was witnessed by Kanti Prasad, who was standing there quite adjacent to his brother and other witnesses including Prempal and Tara Chand. There is consistent and reliable evidence of both the brothers and two eyewitnesses also that Guddan was apprehended on the spot along with Tamancha which was taken out by Kanti Prasad from Guddan and deposited at the Police Station on the same day at 3.30 p.m. It is noteworthy that it is Kanti Prasad who lodged First Information Report on the same day at 3.30 p.m. i.e. within half an hour of the incident at the Police Station situated at a distance of two furlong from the scene of incident.
22. Both brothers were cross examined extensively and effectively on behalf of defence but I find nothing in their cross examination to disbelieve their testimony. It has come on record that Guddan and his parents resided in the same locality at a distance of 100-150 steps only since long and as such, both brothers and eyewitness knew and identified him since long. The incident took place in broad day light at about 3.00 p.m. in the month of July. The appellant was known to both the brothers as well as eyewitnesses being a resident of the same locality and as such, there was no question of committing any mistake in recognizing the assailants.
23. PW 3 Prem Pal and PW 4 Tara Chand, who is close neighbour of Desh Raj arrived at the scene of incident and saw the entire occurrence. They too corroborated the testimony of injured on all material points. Both Prem Pal and Tara Chand totally denied that they were having illicit relationship with the wife of Desh Raj. It may be mentioned here that Tara Chand and Prem Pal have been shown as eyewitness in the First Information Report also.
24. As discussed above, I find that there is sufficient and reliable evidence of injured as well as eyewitnesses of the incident that it was Guddan who fired at Desh Raj and caused grievous injuries on his right arm and chest, which were dangerous to his life. Looking to serious condition of Desh Raj, Dr. Sharma admitted him in the hospital and found that he was not in a position to give dying declaration. In this view of the matter, it is clear that an attempt was made to kill Desh Raj by Guddan and offence committed, by him fails within the ambit of Section 307 I.P.C. He further struck barrel of his pistol on the head of Kanti Prasad who sustained a lacerated wound on his head, I, therefore, find that Guddan was rightly found guilty under Section 323 I.P.C. also for causing simple injuries to Kanti Prasad, Admittedly, the incident was reported to the police promptly and in fact, no delay took place in lodging the F.I.R. or in the medical examination of the injuries. In View of the promptness in lodging the F.I.R. at the Police Station, there was no question of any consultation on the part of informant for fabricating a false case against the appellant.
25. So far as the defence version is concerned that accused had developed illicit intimacy with sister of Desh Raj. I find that this plea of the accused was not established. First of all, both the injured totally denied that the appellant was having illicit relationship with their sister and as such, they were annoyed. It is true that Kanti Prasad admitted that he worked in the Karkhana of appellant's father who did not enhance his wages. Hence, he left the job. I, therefore, see no valid reason to reject the testimony of Kanti Prasad on this point.
26. The appellant was a young man aged about 20 years in the year 1980, Now, he must be more than 45 years old. However, considering the daring act of the appellant that he went to the house of injured and took law in his hand by making murderous assault, I am not inclined to reduce his sentence. The trial Judge has observed that right arm of Desh Raj was amputated. This observation in the judgment of the trial court further strengthen the prosecution case.
27. In view of the aforesaid discussion and scrutiny of the evidence on record, I hold that this appeal lacks merit and is liable to be dismissed.
28. The appeal is dismissed. The conviction of appellant Guddan under Sections 307 and 323 of Penal Code and Section 25 of the Arms Act as well as his sentence under each count imposed by the court below are hereby confirmed. The appellant is on bail. His bail is cancelled. He shall be taken into custody and lodged in jail to serve out the sentences. All the three sentences are directed to run concurrently.
29. A copy of the judgment along with lower court record shall be transmitted to the court concerned/Chief Judicial Magistrate for information and necessary compliance within six weeks. The compliance report shall be sent to this Court within a period of eight weeks from the date of receipt of the record.