Hon'ble Gautam Chowdhary,J.
1. By way of this appeal, the appellant has challenged the Judgment and order 24.9.2012 passed by court of Additional Sessions Judge (Ex-Cadre), Rampur in Sessions Trial No. 304 of 2011, State Vs. Nand Kishore @ Nagpal arising out of Case Crime No. 332 of 2011 under Sections 307, 326 I.P.C. heard with Sessions Trial No. 305 of 2011, State Vs. Nand Kishore @ Nagpal, arising out of Case Crime No. 362 of 2011 under Sections 25/27 Arms Act, Police Station Shahjad Nagar, District Rampur.
2. The brief facts which led to the litigation and whereby the State had to start investigation are that on 19.3.2011, informant Dal Chand gave a written complaint to the Station House Officer, Police Station Shahjad Nagar stating therin that his son Rameshwar injured on the date of incident, i.e., 19.3.2011 was going to ply van on the kanta of one Buddhi Lal after having his meal. When he reached at the shopping place known as Kamora Bazar, he met Lekhpal @ Sapera who was having illicit relation with one woman of easy virtue, namely, Savitri had altercation with son of the complainant, at 7 pm, with a view to do away the injured, the accused fired one gun shot from country made pistol which injured Rameshwar. On hearing hue and cry, informant, Natthu Lal and Ram Kishore converged to the place of occurrence on which accused fled with the country made pistol. This gave rise to the investigation by the police for the commission of offence and for using and having arms which was prohibited under the Arms Act. The police registered aforementioned case crime numbers under the relevant sections of I.P.C. and also under Arms Act after recovery of 12 bore country made pistol.
3. After the investigation was over, charge sheet was filed against the accused. The case being exclusively triable by the court of sessions, the same was committed to the Sessions court. The accused was read over the charges, who pleaded not guilty and wanted to be tried.
4. The injured was taken to the hospital, who had suffered two major injuries, which were as follows:- Injury No.1:- Contused wound 2cmx 1.05 cm on left side of neck below 5 cm from ear towards behind. Injury No.2:- Contused wound 1.05x 1.00 cm above the left eye.
5. These two injuries were certified by the doctor P.W.4 Sri Mohd. Ahmad who opined that they appeared to be caused by firearms and testified that they were caused by way of firing by a country made pistol recovered from appellant.
6. The prosecution so as to bring home the charges examined eight witnesses, who are as under:- 1 Dalchandra P.W.1
2. Rameshwar P.W.2
3. Ram Kishore P.W.3
4. Dr. Mohd. Ahmad P.W. 4
5. Constable Mohd. Taukir P.W. 5
6. Dr. Vipul Kumar P.W. 6
7. Dr. Nishant Gupta P.W.7
8. Dr. Akhil Agrawal P.W.8
7. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence: 1 Written Report Ext. Ka-1
2. Medical Report Ext. Ka-2
3. Chik Ext. Ka-3
4. Nakal Rapat Ext. Ka-4
5. Chik F.I.R.
Ext. Ka-5
6. Nakal Rapat Ext. Ka-6
7. Report of injured Ext. Ka-7
8. Operation Note Ext. Ka-8
9. Information at Police Station Prem Nagar Ext. Ka-9
10. Reference Slip Ext. Ka-10
11. X-ray Slip Ext. Ka-11
12. Prescription Receipt Ext. Ka-12
13. Blood Bank Receipt Ext. Ka-13
14. Discharge Slip Ext. Ka-14
15. Pathology Report Ext. Ka-15
16. Report of Patient Ext. Ka-16
17. Consent letter Ext.Ka-17
18. Statement of Patient Ext. Ka-18
19. Prescription Ext. Ka-19
20. High Risk Consent Ext. Ka-20
21. Consent letter for rendering unconscious Ext. Ka-21
22. Site plan Ext. Ka-22
23. Fard bramdagi Ext. Ka-23
24. Charge sheet Ext. Ka-24
25. Site Plan under Section 25 Arms Act Ext. Ka-25
26. D.M. Permission Ext. Ka-26
27. Charge sheet under Section 25 Arms Act Ext. Ka-27
8. P.W. 1 Dalchandra in his statement recorded on 1.12.2011 stated that about eight months ago, his son Rameshwar, after having meal, was going to kanta of one Buddhilal for plying the van. When his son entered the Kamora Bazar, accused present in court, namely, Nand Kishore met him. Accused asked his son as to where he was going and why was he complaining about his relations with Savitri. This witness stated that there was illicit relations between Savitri and accused which was opposed by his son and due to this acrimony, the accused fired at his son Rameshwar with a countrymade pistol. Rameshwar fell down on the ground. This witness proved written report as Ext. Ka-1.
9. P.W. 2 Rameshwar (injured) in his statement dated 3.1.2012 stated that the incident took place on 19.3.2011. He after having his meal was going to kanta of one Buddhi Lal for plying the van. When he reached Kamora Bazar at about 7 p.m., the accused met him. The accused was having illicit relations with a village woman named Savitri on account of which accused was nurturing acrimony with him and he opened fire with an intent to kill him which hit him on the left side of his neck near ear. On being hit by gun-shot, he fell down on the ground and the accused ran away. This witness in his cross-examination stated that he was hit by single shot which was fired at from behind.
10. P.W. 3., who is eye witness, in his statement recorded on 31.1.2012 stated that incident relates to about ten and half years back. When he was going to his house, he heard sound of gun shot at about 7 p.m. and also the hue and cry. He saw that villager Lekhpal @ Sapera with an intent to kill, fired at Rameshwar. This offence was committed on account of woman of the village, namely, Savitri.
11. Pws 4, 6, 7 & 8 who are doctors, have proved the injuries sustained by the injured Rameshwar.
12. After hearing the prosecution and defence and also considering the evidences available on record, the learned Additional Sessions Judge by the impugned Judgment convicted the appellant under Sections 307 I.P.C. and sentenced to him to undergo rigorous incarceration for ten years with fine of Rs. 10,000/- and in default of payment of fine, to undergo further one year incarceration. He further convicted and sentenced the appellant under Section 326 I.P.C. to under to rigourous incarceration for life with fine of Rs.20,000/- and in default of payment of fine, to undergo eighteen months further incarceration. For offences under Section 25/27 of Arms Act, the learned Judge convicted and sentenced the accused-appellant to undergo five years rigorous incarceration with fine of Rs. 5,000/- and in default of payment of fine, to undergo further six months rigorous incarceration.
13. Feeling aggrieved and dissatisfied with impugned Judgment and order passed in Sessions Trials No. 304 of 2011 and 305 of 2011, the accused-appellant is before this Court.
14. Heard learned counsel for the appellant and learned counsel for the State and perused the record.
15. At the outset, it is required to be mentioned that the appellant accused is in jail for more than nine years. Learned counsel for the appellant had filed his second bail application but we had perused the first bail application and the facts and, therefore, without paper book, we passed the following order on 11.1.2021:- "Learned counsel for the appellant submits that the appellant is in jail since more than 9 years. Court below has convicted the appellant under Section 307 IPC for ten years imprisonment with fine of Rs.10,000/-. We have requested for arguing the main matter, learned counsel for appellant has shown his agreement. Hence even without paper book as the evidence available with him, list this matter tomorrow i.e. 12.1.2021 at 2:00 p.m."
16. Learned counsel for the appellant made an alternative prayer that no offence under Section 326 IPC is made out against the accused as the injured has not stated in his statement as to how his eye was hit and in the alternative, he has submitted that the offence is not so grave that the appellant is required to be given incarcration for life.
17. Learned counsel for the appellant submitted that the trial court did not appreciate that the incident occurred in broad day light. It is submitted that P.W. 2 did not mention as to how he suffered the injuries in his eye.
18. After going through the testimony of the witnesses, we conveyed to the counsel about our non agreement to the fact that the accused was required to be acquitted.
19. It is submitted by counsel for appellant that according to the prosecution case, the occurrence took place at 7 p.m. The submission of the counsel is that in the informant's version and the version of P.W. 1 and P.W. 2, there are certain contradictions. They are very minor contradictions. It is submitted that Nand Kishor did not fire at the injured. It is unknown who had fired on the injured and injured his eye. Arrest of the appeallant was on 30.3.2011.
20. It is submitted that the accused was not named in the F.I.R. despite that he had been charge sheeted and he had been convicted. It is further submitted that neither the prosecution witnesses nor Rameshwar stated in his oral statement on oath as to how he sustained injury on his left eye. We are not aware that the accused is also known as Lekhpal @ Sapera who had injured the P.W.2. The oral statement of PW 3 Ram Kishore and that of doctor who examined the injured Rameshwar had also opined that it was a fire arm injury. It is submitted that only single fire arm shot was heard and the accused had been roped in falsely. It is further submitted that the evidence on record goes to show that the trial court has committed an error, which is apparent on the face of the record.
21. As against this, learned counsel for the State has contended that the punishment is just and proper as PW 2 was injured and he has highly damaged eye as per the medical evidence. Dr. Akhil Agrawal, according to the counsel for the State, had examined the injured on 20.3.2011 who has opined that he was injured by gun shot injury. This gun shot injury, according to the counsel for the State, was caused by the gun which was recovered from the accused.
22. Having deeply gone into oral testimony of all the witnesses, three things emerge , i.e., the incident occurred on 19.3.2011 at 7 pm; the presence of the accused is proved; and the injuries of the injured are proved by the evidence of PWs 2 and 3, who were present at the place of the occurrence . It is evident from the evidence of PW 2 that he received gun shot injury from behind which went from his neck and went through near the ear. The dispute arose on account of illicit relations between the accused and one Savitri for which the injured went to advise him. PW 3 heard the noise of firing and reached there and, according to him, the incident occurred due to illicit relations with Savitri. A confusion was sought to be created that Lekhpal alias Sapera and Nand Kishore are two different persons but the accused Nandkishore @ Nagpal @ Lekhpal @ Sapera are the same person. Thus, it is conclusively proved that it is the accused, who was involved in the incident and he is a named accused. We are not delving into the further facts as we are convinced that it was the accused who was involved in the commission of the offence.
23. As far as the firearm injuries in the eye is concerned, no witness has mentioned that as to how P.W. 2 received injuries in the eye. The learned Judge has not assigned any reason as to why the accused is sentenced for life imprisonment under Section 326 I.P.C. The learned Judge even without considering the evidence of PW 8 the doctor, comes to the conclusion that injuries were as such that injured would have died. We have perused the evidence of the doctors. It cannot be said that injuries of the accused were so grave that he should be sentenced to be life imprisonment under Sections 307 and 326, which read as follows: "307. Atempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if the 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; and if hurt is caused to any person by such act, the offender shall be laible either to [ imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempt by life convicts.-[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]
326. Voluntarily causing grievous hurt by dangerous weapons or means.-Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting or any instrument which used as a weapon of offence, is likely to cause death , or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
24. Recently, in the case of Mustak alias Kanio Ahmed Shaikh Vs. State of Gurarat, repored in AIR 2020 Supreme Court 2799, the Apex Court, while enhancing punishment under Section 307 of the Indian Penal code, has sentenced the accused to seven years.
25. The Apex Court in the case of Sattan Sahani 2002 7 SCC 604 has held that where the accused faced trauma of criminal proceedings for more than two decades, the sentence of imprisonment was reduced to the period already undergone. In the case of Hasoraj Singh reported in AIR 1993 Supreme Court 1256, the accused was ordered to undergo three years as the sentence of imprisonment was reduced to period already undergone. In our case, accused has remained in jail during trial and again during the pendency of appeal before this Court. The sentence has to commensurate with the injuries which the injured has sustained. The Court commands the first class Magistrate to try such cases as it was coupled with 307 I.P.C. We hold that as there was sudden quarrel where only two injuries were found and the accused has been in jail for more than nine years, we hold that eight years would be sufficient period for incarceration looking to the weapon used looking to the young age of injured also. Fight took place betwen the accused and injured which arose out of exchange of abuses due to alleged relations with some lady. The proseuction has proved that the assault was by the appellant. Even in a case where the nose was cut, the court shall not give life sentence.
26. In the case of Modi Ram, AIR 1972 SC 2438 also, where there are serious allegation, the Apex Court held that the accused should be adequately dealt with. The Apex Court in a case, where a person whose penis and nose were cut, held that eight years of imprisonment were too harsh and reduced the period to three years. The punishment should commensurate with the injuries caused. There should not be any undue sympathy also. But, in our case, we find that there were doubt regarding who injured PW 2 in his eye and as even in his testimony he did not say that the accused had fired in his eye.
27. The learned Judge has gone on the bare reading of Section 307 and 326 I.P.C. and has inflicted maximum of punishment which, in our opinion, requires modification.
28. In that view of the matter, as far as Section 326 I.P.C. is concerned, we hold that Section 326 though is made out, the nature of injuries, part of the body chosen by the accused and weapon used are important facts, which are to be considered. Medical evidence go to show that the injuries were not so grave so that the accused has to suffer incarceration for life. Thus, punishment under Section 326 I.P.C. is reduced from life imprisonment to the period already undergone, i.e., eight years with reduced fine of Rs.10,000/-, and default sentence is also reduced to six months. While seeing blow on the vital part of the body, i.e., on the neck, we hold him guilty under Section 307 and sentence is reduced to eight years, fine is reduced to Rs.10,000/- and default sentence is also reduced to three months which by now he must have undergone. As far as Section 25/27 of Arms Act is concerned, we do not delve into as period of incarceration and default sentence therein is also over.
29. The appeals stands partly allowed.
30. Records are not before this Court. The accused, who is in jail, be released if he is not required in any other case.
31. Let a copy of this judgment be sent to the Jail Authorities concerned and District Magistrate for compliance. Order Date:20th January 2021 Ram Murti