1. Heard Sri Pradeep Kumar Mishra, Amicus Curiae, Sri Deepak Mishra, Learned A.G.A. appearing for the State and perused the record.
2. This Criminal Jail Appeal No. 1671 of 2008 has been filed against the judgment and order dated 18.1.2008 passed by the Additional Sessions Judge, Fast Track Court No.1, Rampur, in Sessions Trial No. 316A of 1999 (State Vs. Afsar), whereby the appellant Asif has been convicted under Section 307 IPC and awarded punishment of ten years rigorous imprisonment with a fine of Rs. 2000/- and in default of payment of fine six months additional rigorous imprisonment.
3. As per the FIR, the prosecution case is that the appellant alongwith co-accused Asif were selling smack at Chah Khazana Khan intersection where shop of maternal uncle of the first informant Zafar Khan, is situated. Zafar Khan objected to the selling of smack and pursuant to this dispute, on 25.02.1995 at about 12:00 noon, there was exchange of hot talks between appellant-accused and one other co-accused on the one hand and Zafar Khan (injured) on the other and both the accused gave threat, that whosoever creates hurdles in their work, would be eliminated from their way. Due to this enmity, on 26.02.1998, at about 12:30 p.m., when the first informant Ibrar Khan (PW-1) was standing with his maternal uncle Zafar Khan close to the mosque, located at Chah Khajana Khan intersection, the appellant with other co-accused Asif, Zamil Ahmed, and Yusuf Miyan @ Achhan armed with pistols in their hands reached the spot in prosecution of their common intention to kill Zafar Khan and thereafter, all the four accused fired upon Zafar Khan with their pistols with an intention to kill, by which, Zafar Khan became injured and fell down. The first informant, other shopkeepers and passers-by ran away from there to save their lives by shutting their shops; an atmosphere of insecurity engulfed the area and all the four accused fled away from the spot with pistol in their hands saying that whosoever would come in their way, would not be spared. This occurrence was witnessed by Siraz Khan (PW-4), Hemant and Asfaq Khan etc.
4. On a written report containing above facts, a case was registered at Police Station Gunj, District Rampur, vide GD Exhibit Ka-6 as Crime No. 46 of 1998, under Sections 307, 504 IPC against the appellant and co-accused Asif, Zamil Ahmed and Yusuf Miyan @ Achhan, on 26.2.1998 at 13:15 hours whereafter investigation was made during which site plan Exhibit Ka-7 was prepared by Investigation Officer and after recording the statement of witnesses charge-sheet was submitted against Afsar, Zamil Ahmed and Yusuf Miyan @ Achhan, under Sections 307 and 504 IPC after having them arrested and against Asif in his abscondance.
5. In the impugned judgment, it is mentioned that file of appellant-accused Afsar was separated on 6.9.2006 from the file of S.T. No. 316 of 1999 (State vs. Asif and anothers), relating to three other co-accused. At the stage of recording of the statement of accused persons under Section 313 Cr.P.C., the present accused did not appear before the court. In the said S.T. No. 316 of 1999 (State Vs. Asif and anothers) the trial of co-accused persons Asif, Zamil Ahmed and Yusuf Miyan @ Achhan was concluded by Additional Sessions Judge Court No. 3, Rampur and judgment was delivered on 27.9.2006 and, therefore, the said file was summoned by the trial court and certified copies of the statements of the witnesses in the said case, which were recorded in the presence of the present accused, were got prepared and placed on the present file as they were recorded before recording of the statement of present accused under Section 313 Cr.P.C. in his presence.
6. It is reflected from the impugned judgment and the file of the lower court that charge was framed against the present accused on 6.11.2001 under Sections 307 read with section 34 and 504 IPC to which he pleaded not guilty.
7. In support of the prosecution case, the record reveals that the prosecution examined as many as seven witnesses namely, Ibrar Khan (PW-1), who is the first informant, Zafar Khan (PW-2), who is injured, Dr. D.K. Gupta (PW-3), who conducted medical examination of the injured, Siraz Khan (PW-4), who is an eye-witness, S.I. Naresh Pal Singh (PW-5), who had partly conducted the investigation, Dr. A.K. Gupta (PW-6), who prepared X-ray report and lastly S.I. Sohan Lal Premi (PW-7), who conducted the remaining investigation. Apart from that, from the side of the prosecution, documentary evidence is also produced which includes written report submitted by first informant before the P.S. concerned (Exhibit Ka-1); copy of GD (Exhibit Ka-6); chick FIR (Exhibit Ka-5); site plan (Exhibit Ga-7); injury report (Exhibit Ka-2); X-ray report (Exhibit Ka-4); and X-ray plates which are material Exhibit-1&2.
8. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. in which he denied truthfulness of the evidence adduced against him from the side of the prosecution and took the plea that he was falsely implicated in the present case but he did not adduce any evidence in his defence neither oral nor documentary.
9. After having gone through the entire evidence on record, the learned trial court has held the accused guilty for offence under Section 307 IPC only and acquitted for offence under Section 504 IPC.
10. Since the appellant-accused has not engaged any counsel, Sri Pradeep Kumar Mishra has been appointed as Amicus Curiae in this case for assisting the court.
11. Learned Amicus Curiae has argued at length and mainly emphasized on legal argument that in view of three co-accused having been acquitted by the sessions court, the present accused could not have been convicted under Section 307 IPC as the charge was framed against him under Section 307 read with Section 34 IPC and 504 IPC. For an offence under Section 307 r/w section 34 IPC, it is essential that there must be more than one accused to have assaulted the injured but in this case, there were four co-accused who were named in F.I.R. and out of them three have been acquitted by the lower court on the same evidence which was before the trial court. In this case, the court below has erroneously convicted the present accused. It is further argued that when three accused were acquitted and there was no such averments in the F.I.R. that there was involvement of any other person in commission of this offence then the present accused could not have been convicted under Section 307 IPC as there was no charge framed under Section 307 IPC simpliciter and for his conviction under Section 307 read with 34 IPC, there should be more than one accused, which is not the position in the case in hand, in view of three co-accused having already been acquitted.
12. In this regard he has relied upon the judgment of the Apex Court rendered in Krishna Govind Patil vs. State of Maharashtra 1963 AIR SC 1413, and attention was drawn to the following paras of the judgment which are reproduced herein below:-
"4. To put it in other words, they, acquitted accused 1, 3 and 4 on the ground that it was doubtful whether any one of them participated in the commission of the offence and convicted accused 2 on the ground that one or more of them might have participated in the offence. Accused 2 has filed the present appeal against the judgment of the High Court.
5. The argument of learned counsel for the appellant may be put thus : The learned Additional Sessions Judge acquitted the accused under s. 302 of the Indian Penal Code and also under s. 302, read with s. 34, of the said Code. The appeal in the High Court was confined only to the acquittal of the accused under s. 302, read with section 34, of the Indian Penal Code. The charge as well as the evidence was only directed against the four named accused as the participants in the common intention to commit the murder of the deceased. The High Court having acquitted accused 1, 3 and 4, inconsistently convicted accused 2 for having committed the murder of the deceased jointly with the three accused who had been acquitted. To put it differently, the argument is that when three of the four named accused, who were charged under s. 302, read with s. 34, of the Indian Penal Code, were acquitted, the court could not convict only one of the accused on the basis of constructive liability.
6. Learned counsel for the respondent counters this argument by stating that though the charge as well as the evidence was directed against the 4 named accused, a court could come to the conclusion that 3 of the 4 named accused are not identified but more than one had taken part in the commission of the offence and that in the present case on a fair reading of the entire judgment we should hold that the High Court found that though accused 1, 3 and 4 were not identified, 3 unidentified persons must have taken part in the murder. Section 34 of the Indian Penal Code reads :
"When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
7. ................................................
8. As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the unnamed accused is guilty of murder under s. 302, read with s. 34, of the Indian Penal Code, though the other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused ? Can it hold, in the absence of a charge as well as evidence, that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons ? If the Court could do so, it would be making out a new case for the prosecution : it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration.
9. In support of the contention that a Court, even in the first illustration, can acquit 3 of the 4 accused named in the charge on the ground that their identity has not been established, and convict one of them on the ground that more than one took part in the commission of the offence, reliance is placed upon the decision of this Court in Mohan Singh v. State of Punjab . There, the appellants, along with three others, were charged with having committed offence under s. 302, read with s. 149, as well as s. 323, read with s. 149, of the Indian Penal Code. The Sessions Judge acquitted two of them, with the result 3 of them were convicted. One of the accused was convicted under s. 302 and s. 147 and two of the accused were convicted under s. 302, read with s. 149 and s. 147, of the Indian Penal Code. The High Court confirmed their convictions. On appeal by special leave to this Court, two of the accused convicted under s. 302, read with Sections 149 and 147, of the Indian Penal Code, contended, inter alia, that as two of the five accused were acquitted, their conviction under s. 302, read with Sections 149 and 147, was bad in law. This Court held on the evidence that the said two accused had done the act pursuant to a pre-arranged plan and therefore they could be convicted under s. 302, read with s. 34, of the Indian Penal Code. But in the course of the judgment different situations that might arise in the context of the question now raised were noticed. Adverting to one of the situations similar to that now before us, this Court observed :
"Cases may also arise where in the charge, the prosecution names of five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then s. 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion."
13. It is apparent from the above citation that in the case at hand, this court would have to scrutinise the evidence on record to form opinion as to whether the learned court below was justified in convicting the accused under Section 307 IPC although despite there being no simpliciter charge framed under that Section as the charge indicates that he was subjected to charge under Section 307 read with section 34 IPC which implies that he was alleged to have caused injuries to the injured with other co-accused in prosecution of their common intention to kill him, who were less than five in number. This point in particular will be dealt with at appropriate stage. As regards injuries sustained by the injured it was argued that all the three injuries found on the person of injured were simple in nature and were caused due to dispersal of the pellets and such injuries would not travel beyond Section 324 IPC
14. Another ground raised by the learned Amicus Curiae is that the conviction of the appellant was hit by section 300 Cr.P.C. which has been wrongly ignored by the learned trial court.
15. Learned A.G.A. has on the other hand argued that the learned lower court has passed the impugned judgment in accordance with law and evidence on record and that the appeal deserves to be rejected.
16. Although the learned Amicus Curiae has not highlighted other infirmities in the judgment except that there were discrepancies in the statement of witnesses of prosecution, this court would like to scrutinise the whole evidence along with important points such as place of occurrence and other discrepancies in the statements of witnesses of prosecution and their overall impact on the outcome of the case.
17. A careful analysis of the impugned judgment would show that the learned trial court has not made meticulous analysis of the statement of the witnesses of prosecution rather after having reproduced them at length, at the end, has drawn conclusion of accused/appellant being guilty under sections 307 IPC, which seems to be stereotyped and mechanical.
18. The lower court has held that the injured is alleged to have sustained two simple injuries and one serious injury regarding which X-ray report was prepared by the doctor who did not mention the colour of abrasion, although he stated that he had submitted his report on the basis of his observation. The doctor (PW-6) stated that in X-ray of injured Zafar Khan, many Radio Opaque shadows were found and X-ray of his head was conducted. Thereafter, no supplementary report was brought on record. The court concluded thereby that it did prove that the injured had received injury no.1 on his head regarding which Radio Opaque shadows were found, which is corroborated by statement of eye-witnesses and injured himself. Next he mentioned that he was not convinced with the argument that if the four assailants had fired upon the injured, it would not have been possible for the appellant to receive such small number of injuries, because if the distance from where the assailants are alleged to have made fire upon injured, be taken into account, such small number of injuries were not likely to be received rather their number would be higher. If the fires were made from close range, the injured would certainly have died. He further mentioned in the judgment that it was not possible to specify as to whose fire, out of the four assailants, actually hit the injured. He has relied upon several case laws to underline the point that intention is required to be gathered for an offence to fall under the para-meter of 307 IPC and not the seriousness of the injury. Further he has mentioned that for an offence to be covered under Section 34 IPC, if one of several persons, in furtherance of common intention of all, commits a criminal act, all would be liable for that act as if all of them had committed the said criminal act and stated that in the case in hand, the four accused, in furtherance of their common intention to cause death of the injured, had made fire upon him which caused an injury on sensitive part of the injured, which could not have been self inflicted. It was not possible to assign role of causing the said injury to any one of them. It is also mentioned that there was no prior enmity, so there was no chance of false implication of the accused. With these findings, in the last, he discarded the benefit of Section 300 Cr.P.C. also to the accused and held him guilty under aforementioned section and awarded him above mentioned punishment.
19. Now this court would like to, first of all, take up the point as to whether the place of occurrence has been proved by the prosecution on the basis of evidence adduced. In the site plan Exhibit Ka-7; X "A" is the place where injured was present at the time when he was fired upon by the accused persons; X "B" is the place where the injured, Zafar Khan was fired again in front of the gate of mosque, by the accused persons; X "C" is the place where is located the shop of Aslam, where meat is sold and on the wall of that shop, marks of pellets were found by the investigating officer; X "D" is the place where marks of pellets were found in the boundary wall of the Mosque. The accused persons have been shown coming from South together towards North-east and after having attacked the injured, returned by the same route. The distance between X "A" and X "B" is recorded as 25 steps.
20. Now in the light of above site plan, the statement of witnesses are required to be examined to assess their truthfulness. PW-2, who is injured himself has stated in this regard that he had received fire arm injury on the said passage which goes between the hotel of Hashin Khan and the mosque, as he was standing there. He has stated that the accused had come from the Northern side and at that time he was standing near mosque. From there his house was situated about 200-250 gaj away and not 20 gaj away. When for the first time, he saw the accused persons, he must have been 20-25 gaj away from them and all of them together had fired upon him from there. After seeing the accused he ran away but till then he had already received pellets. He could barely run 20 guj away, right then the fire had hit him. He had received injuries by fire made by all the four accused. After hearing the sound of fire, his brother Asfaq and Babar reached the spot. It was wrong to say that he had not received any injury at that time and place and also that he had implicated the accused persons falsely. Israr had not reached there after hearing the sound of fire rather he was already standing near the shop of Aslam. Further it is mentioned that when he was fleeing after seeing the accused, all of them were behind him. He further stated that all the accused persons were all around him. Thereafter, he re-clarified his statement and stated that all the four accused were behind him and his earlier statement was correct, further he stated that Asif was in front of him and rest of all the accused were in the side and that he had run towards his house. Further he has stated that as soon as he got hit by fire, he fainted on the spot and regained consciousness only after 2 to 2.30 hours in the evening around 4:00 p.m.
21. In respect of place of occurrence the first informant i.e. PW-1 has stated that the place of occurrence was not the intersection as it was located at a distance of 10 to 15 steps from the intersection. On the one side of place of occurrence, there is a mosque and on the other side, there is a 'Nala' and in between goes the passage which leads to the house of his 'Nani'. The passage which goes to his house, goes via intersection and to the North-east of that passage, there is a main road which is 15-16 feets broad. On the East of the said road, few shops are located and on the West, there was a passage which goes to his house. The 'Nala' flows from East to West. From the place of occurrence, the passage which goes to his 'Nani's' (maternal grand-mother's) house, hotel of Hafiz Ji is situated to the South near Nala. The passage which goes to his Nani's house, from there, the said hotel is situated towards East. It is further stated that the house of his 'Mama' (maternal uncle) is situated 500-600 steps away from the place of occurrence. From the place of occurrence, the shop of his 'Mama' (maternal uncle) is located 35-36 steps away. When he reached there, he was talking with his 'Mama' (maternal uncle) about 10 steps away from his 'Mama's' shop, at 12:20 p.m.. The accused persons started abusing as soon as they reached there and started making fire, all the four had fired together, whose fire hit his 'Mama' (maternal uncle), he could not tell. His 'Mama' (maternal uncle) after getting hit, fell down at a small distance and got fainted. He had fallen on the Kharanja. The mosque is situated on the right side of Kharanja, this fire was made from a distance of about 10-15 steps from his 'Mama' (maternal uncle).
22. Another eye-witness (PW 4) has also stated in his testimony that the injured was attacked by fire arm weapon near the mosque by the accused - appellant with his associates in prosecution of their common intention to kill the injured. The testimonies of all the three witnesses could not be impeached by the defence despite extensive cross examination in respect of material particulars, hence this court finds their testimony believable in respect of the present accused having made firearm attack upon the injured in prosecution of their common intention to kill the injured
23. From the above statements of the informant and the injured with respect to the site plan, if read in the light of the site plan in which the place of occurrence is shown to be near mosque, no infirmities were found as the said statements corroborated the place of occurrence to be near the mosque. Therefore, in the light of the statement of these two witnesses, the place of occurrence is rightly held proved by the court below; because minor contradictions of the direction from where the accused were coming etc. may be taken to the ignorable contradictions. Simultaneously, this Court is also of the view that the description which has been given of the assailants causing injury to the injured, seems to be trustworthy.
24. Next, it would be pertinent to analyse as to whether the offence committed by the accused would fall within the parameter of section 307 or Section 324 IPC. The question arises as to how it would be determinable. It would have to be seen as to what are the essential ingredients of the sections.
25. Section 324 IPC reads as follows:-
"324. Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as 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 of either description for a term which may extend to three years, or with fine, or with both."
The above Section discloses that for an offence to be covered under sections 324 IPC following essentials are to be satisfied: -
"(i) That the accused voluntarily causes hurt to another person;
(ii) That such a hurt was an exception to cases provided under sections 334;
(iii) That such hurt was caused -
(a) 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
(b) by means of fire or any heated substance; or
(c) by means of any poison or any corrosive substance; or
(d) by means of any explosive substance; or
(e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or
(f) by means of any animal."
26. Therefore, to bring home charge of an offence punishable under sections 324 IPC, the prosecution has to prove (a) that the accused caused hurt i.e. , caused bodily pain or disease or infirmity (vide Section 319 IPC) to another; (b) that it has been caused voluntarily i.e. with knowledge or intention to cause; (c) that it has been caused by any instrument for shooting, stabbing or cutting, or by any instrument which qua 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 is deleterious to the human body to inhale to swallow or to receive into blood or by any means of any animal, and (d) that the offence does not attract Section 334 IPC.
27. Section 307 IPC reads as follows:
"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; and, 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 here in before mentioned.
Attempts by life-convicts. - When any person offending under this Section is under sentence of a imprisonment for life, he may, if hurt is caused, be punished with death."
28. Therefore, an offence under sections 307 IPC requires following ingredients to be satisfied:
"(i) That the accused did an act;
(ii) That the act was done with intention or knowledge and under such circumstances to cause bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death; and
(iii) That the accused had no excuse for incurring the risk of causing such death or injury."
29. Thus, it is evident from the afore- mentioned ingredients that for an offence of attempt to commit murder punishable under sections 307 IPC the most important ingredient is intention and knowledge. It is essential for the prosecution to establish that the intention of accused was of one of the three kinds, mentioned in Section 300 of IPC. A person commits an offence under sections 307 IPC, when his intention is to commit murder, and in pursuance of that intention, he does an act towards its commission, irrespective of the fact, whether that act is the penultimate act or not. The act must be done with such intention or knowledge or in such circumstances that, if death be caused by that act, the offence of murder will emerge. It also underscores that causing such injury as would endanger life is not an essential condition for invocation of Section 307 IPC. Even if the injuries are simple in nature, that by itself cannot be a ground for acquittal, if the offence otherwise falls under sections 307 IPC.
30. Now it has to be seen as to what would be essential to gather the intention. Intention is a state of mind, which can never be precisely proved by direct evidence; it can only be deducted or inferred from other facts which are proved. It may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence. There are various relevant circumstances from which the intention can be gathered such as:
"i. The nature of the weapon used.
ii The place where the injuries were inflicted.
iii. The nature of the injuries caused.
iv.The opportunity available which the accused gets.
31. Further, the relevant paragraph 9 and 10 of State of Maharastra vs Balram Singh Patil, AIR 1983 SC 305 may be quoted here with profit: -
"9. Shri Rana appearing for the State has strenuously contended that the High Court has committed a grave error in holding that the offence under sections 307 IPC was not made out merely because the injuries inflicted on the witnesses were in the nature of simple hurt and in these circumstances it is not possible to hold any of the accused persons guilty in respect of that offence. We find considerable force in this contention. A bare perusal of Section 307 IPC would show that the reasons given by the High Court for acquitting the accused of the offence under sections 307 were not tenable. Section 307 IPC reads: -
.............
[already quoted above] 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 caused 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, in some cases be ascertained without any reference at all to actual wounds. This Section makes a distinction between an act of accused and 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 is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this 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.
10. The High Court, in our opinion, was not correct in acquitting the accused of charge under sections 307 IPC merely because the injuries inflicted on the victims were in the nature of a simple hurt. Therefore, that part of the judgment of the High Court acquitting the accused Nos. 1, 2 and 11 of the offence under sections 307 IPC, cannot be sustained and must be set aside. They have, however, already served out sentence of imprisonment for two years for the offence under sections 147 and 148 IPC in pursuance of the order of the High Court. When the State filed an appeal against them they were arrested again and had to remain in jail for three months before they could be released on bail. Thus, they have already served a sentence of two years, three months. In the circumstances the ends of Justice should be met if the sentence is limited to the period already undergone."
32. Therefore, the aforesaid decision of the Supreme Court makes it very clear that merely because the injuries inflicted on the victims are found to be simple in nature, by itself can never be a ground to acquit the accused of the offence under sections 307 IPC. However, the nature of injury actually caused would definitely provide considerable assistance in coming to a finding as to the intention of the accused.
33. In the case at hand the Doctor has found the following three injuries upon the injured:
(1) Firearm wound of entry present in an area of 14 Cms. × 5.5 Cm. on forehead and nose and upper lip, each measuring 0.3 Cm. × muscle deep, read clotted blood present.
(2) One firearm wound of entry measuring 0.3 Cm. × 0.3 Cm. muscle deep on back of a right index finger, 4.5 Cm. above the top, read clotted blood present.
(3) One firearm wound of entry measuring 0.3 Cm. × 0.3 Cm. muscle deep on backside of right middle finger.
Further, in x-ray with respect to injury no. 1 multiple radio-opaque metallic density were found, however, no supplementary report could be filed by the Doctor in respect of nature of injury no. 1.
34. From a perusal of above injuries it is evident that injuries were also sustained on the forehead apart right fingers of arms, the intention of causing death of the injured, therefore can be gathered from the fact that the assailants which included the appellant together made fire upon the injured from about 10 - 15 feet distance, as firearm weapon is normally used for causing grievous hurt which might result in death of the injured. Use of fire arm in causing injury on the face/forehead would naturally bring a prudent person to conclude that the intention must have been of killing only, although it is a different matter that the injury could not prove fatal. Even though from the evidence on record with respect to injuries it would prove them to be of simple nature only for want of supplementary medical report of injury no. 1, it would lead to no other conclusion than that the said injuries were caused with an intention to kill. Therefore this act of the accused/appellant would fall in the ambit of Section 307 IPC and not 324 IPC. The argument of learned amicus curiae that the said injuries were of simple nature due to dispersal of pellets of fire arm, hence offence under Section 324 IPC only would be made out, does not appeal to reason.
35. The next most important point which needs to be dealt with is, whether the appellant may be convicted of offence under sections 307 read with Section 34 IPC notwithstanding the acquittal made by the lower court in a separate trial of three other co-accused. The main plank adopted by the learned amicus curiae is that in such situation the act of the appellant would not be held to have been committed in furtherance of common intention of them all and that the said being the situation in the present matter, the accused appellant should be acquitted of the offence charged because he could not have been held guilty even of charge under sections 307 IPC simplicitor also, because it is not the case of prosecution that the injuries sustained by the injured were solely caused by the accused appellant. And to support this contention reliance is placed by him upon Krishna Govind Patil's case (supra).
36. Regarding benefit of the law laid down in Krishna Govind Patil's case (supra), to be given to accused, I would like to mention that a subsequent judgment of Hon'ble Apex court in Gangadhar Behra and others vs State of Orissa, (2002) 8 Supreme Court Cases 381 needs to be looked in, in which in para 15 following is held:
"15. To the same effect is the decision in the State of Punjab vs Jagir Singh, (1974) 3 SCC 277 and Lehna vs State of Haryana, (2000) 3 SCC 76. Stress was laid by the accused - appellants on the non-acceptance of evidence tendered by some witnesses to contend about the desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "folsus in uno, folsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from beginning to end. The maxim"folsus in uno, folsus in omnibus" has no application in India and the witnesses cannot be branded as liars of the maxim"folsus in uno, folsus in omnibus" has not received the general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali vs State of U.P., AIR 1957 SC 366) . Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same, does not lead to a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh vs State of Punjab, AIR 1956 SC 460). The doctrine is a dangerous one especially in India for if the whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab vs State of M.P., (1972) 3 SCC 751 and Ugar Ahir vs State of Bihar, AIR 1965 SC 277". An attempt has to be made , as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truths from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context in the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel vs State of MP, AIR 1954 SC 15 and Balaka Singh vs State of Punjab, AIR 1954 SC 15). As observed by this court in a State of Rajasthan vs Kalki, (1981) 2 SCC 752 normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of normal person. Courts have to lebel the category to which the discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi vs State of Bihar, (2002) 6 SCC 81. Accusations have been clearly established against the accused - appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned."
37. In view of above position of law laid down in Gangadhar's (supra) it is apparent that it is not essential that merely because some accused persons have been acquitted, though evidence against all of them, so far as direct evidence went, was the same, does not lead to a necessary corollary that those who have been convicted must also be acquitted and this is a law laid down by the Hon'ble Apex court at a subsequent point of time than the one which has relied upon by the learned amicus curiae. Hence simply because the co-accused had been earlier acquitted on the same evidence, the present accused/appellant may not be acquitted. Moreover, this court is not in a position to appreciate the reasoning given by the court making acquittal of co-accused and further as to what were the arguments advanced by the learned counsel for the acquitted accused and the circumstances which led to the said acquittal, therefore no benefit needs to be given to the present appellant, of acquittal of the co-accused.
38. It would be appropriate to go through the provision under Section 34 IPC also. Section 34 IPC provides as follows:-
"34. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
39. In Balu vs. State (UT of Pondicherry), (2016) 15 SCC 471, it is held by the Hon'ble Apex Court that to invoke section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that: (i) there was common intention on the part of several persons to commit a particular crime, and (ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when a overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused persons can be convicted of that crime, only if he has participated in that common intention. Further it is held that common intention is seldom capable of direct proof. It is almost invariably to be inferred from proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The inference to be drawn from the manner of origin of the occurrence. The manner in which the accused arrived at the scene and the concert with, which attack, was made and from the injuries caused by one or some of them. The criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor. Further it is held that under Section 34 IPC, a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proved facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.
40. In view of above interpretation, this Court is of the view that the evidence has come on record to the effect that initially two accused namely, Asif and Afsar (present appellant) had a tiff with the injured prior to this occurrence with respect to sale of 'Pudias' of smack which was opposed by the injured and with that enmity on the date of occurrence, the present appellant-accused with three others, namely, Asif, Zamil Ahmed and Yusuf Miyan @ Achhan assaulted the injured with the aid of fire arm weapon in their hands near the mosque which resulted in injuries having been caused to the injured, therefore, participation of the four accused persons including the appellant-accused has been alleged by the injured as well as informant and one more eye-witness Siraz Khan, which stands proved from their unimpeachable testimony, therefore, it is apparent that the present appellant had also participated in this offence.
41. Since, the fact that the present accused along with other three co-accused had assaulted the injured by which three gunshot injuries have been caused to the injured, this Court finds that the present accused ought have been convicted under Section 307 read with 34 IPC and not under Section 307 IPC simplicitor by the court below. It cannot be held that since three other co-accused have been acquitted by the court below in a separate trial, the present accused could not been held guilty, rather he deserved to be held guilty in the light of the law laid down in Gangadhar Behra's case because it has come in evidence that he was also involved in the commission of present offence, which was given effect in furtherance of common intention of all to kill the injured, as has been proved by the eye-witnesses examined by the prosecution.
42. The next argument which has been made by the learned Amicus Curiae is that the appellant ought to have been granted benefit of Section 300 Cr.P.C. which has been denied erroneously. For the sake of convenience, it would be appropriate to reproduce the relevant part of Section 300 Cr.P.C. which is as follows:-
"300. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.
(2)......................................."
43. As is clear from the aforementioned provision that a person who has once been tried by court of competent jurisdiction for an offence, he shall not be liable to be tried again. This provision does not apply here because in the case at hand, this is not the second time that the appellant-accused is being prosecuted for the same offence hence, the argument of the learned Amicus Curiae is misconceived in this regard.
44. In view of the above analysis, this Court is of the view that the appellant-accused deserves to be punished under Section 307 read with Section 34 IPC instead of Section 307 IPC, therefore, the impugned judgment and order dated 18.1.2008, accordingly is modified, however the punishment awarded seems to be proportionate to the offence committed.
45. Since, there is a report on record submitted by Jail Superintendent, District Jail Rampur that appellant-accused Afsar son of Anwar had been convicted in ST No. 316A of 1999, Crime No. 46 of 1998, under Section 307 IPC, P.S. Gunj, District-Rampur by the judgment and order dated 10.1.2008 of A.D.J./F.T.C. No.1, Rampur for 10 years rigorous imprisonment with fine of Rs. 2000/- and he had been transferred to Central Jail, Bareilly on 17.2.2008 from where, it has been apprised, that he has been released from prison on 20.6.2015 after having completed his sentence of 10 years rigorous imprisonment and having deposited fine of Rs. 2000/-. In view of this, this judgment remains of only academic interest.
46. Let a copy of this judgment and order be transmitted to the court concerned for necessary compliance, if any, by office at once.
47. Sri Pradeep Kumar Mishra, learned Amicus Curiae, who has assisted this Court commendably in deciding the appeal, he shall be paid an amount of Rs. 10,000/- for the same.
48. Appeal stands dismissed.
Order Date :- 24.08.2018 JK Yadav