# Rakesh & Ors. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 2117 of 2002
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-26
- **Case number:** Criminal Appeal No. 2117 of 2002
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-ors-in-jail-v-state-of-u-p-46450
- **Pages:** 10

## Headnote

law-
Indian
Penal
Code
-
Sections 147, 504, 506(2), 308/149 -
Appeal against conviction.

Held :- Ingredients of Section 307 IPCFirearm injury - Not found on vital part of body
of injured - Injury not caused with intention to
kill - Hence not liable for punishment under
section 307 IPC. Trial Court judgment modified
to conviction under Section 324 I.P.C.

Appeal partly allowed. (E-2)

List of Cases Cited:-

## Text

3-5 All. Rakesh & Ors. Vs. State of U.P.
621
Mohd. Mushtaq and Mohd. Asghar. Thus
charges framed against them become
doubtful and they are entitled to the benefit
of doubt.

36. In the wake of above discussion,
we may sum up that the finding of
conviction recorded by the trial court is on
the face erroneous and perverse and the
same cannot be sustained in the eye of law.
Therefore, the judgment and order of
conviction and sentence dated 24.09.1991
passed by Special Judge, Moradabad, in
Session Trial No.411 of 1987, State of U.P.
Vs. Mohd. Ishaq and others, arising out of
Case Crime No.82 of 1987, under Sections
304B, 201, 498A I.P.C. and Section 3/4 of
Dowry Prohibition Act, Police Station-
Behjoi, District- Moradabad, is hereby set
aside. Accused-appellants are acquitted of
all charges as above. Accordingly, the
instant appeal is allowed.

37. In this case, the accusedappellants Mohd. Mushtaq and Mohd.
Asghar are already on bail. They need not
surrender in this case. Their bail bonds
cancelled
and
sureties
discharged.
However, they shall furnish surety bonds in
compliance with Section 437A Cr.P.C.

38. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2020)03-05ILR A621
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 2117 of 2002
Rakesh & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.B.L. Gour, Sri Saurabh Gaur

Counsel for the Opposite Party:
A.G.A.

Criminal
law-
Indian
Penal
Code
-
Sections 147, 504, 506(2), 308/149 -
Appeal against conviction.

Held :- Ingredients of Section 307 IPCFirearm injury - Not found on vital part of body
of injured - Injury not caused with intention to
kill - Hence not liable for punishment under
section 307 IPC. Trial Court judgment modified
to conviction under Section 324 I.P.C.

Appeal partly allowed. (E-2)

List of Cases Cited:-

1. St. of H.P. Vs. Pardeep Kumar & ors., (2018)
13 SCC 808.

2. Bhajan Singh @ Harbhajan Singh & ors. Vs.
St.of Har., 2011 (4) Supreme 639.

3.
Sadayappan
@
Ganesan
Vs.
State,
represented by Inspector of Police, 2019 SCC
OnLine SC 610.

(Hon'ble Ali Zamin, J.)

1. Heard Sri A.B.L. Gaur, learned
Senior Counsel assisted by Sri Saurabh
Gaur for the appellants and the learned
A.G.A. for the State.

2. This appeal has been preferred
being aggrieved from the judgement and
order dated 22.05.2002 passed in Session
Trial No.62 of 1998 (State vs. Rakesh and
others) arising out of Case Crime No.2 of
1997, under Sections 323, 324, 307 read
622 INDIAN LAW REPORTS ALLAHABAD SERIES
with Section 34 and 504 I.P.C., Police
Station Mursan, District Aligarh by which
learned Additional Sessions Judge, Court
No.13, Aligarh has convicted the accusedappellants and sentenced each appellant to
undergo life imprisonment and fine of
Rs.10,000/- under Section 307/34 I.P.C.
and in default of payment of fine further to
undergo one year simple imprisonment,
three months rigorous imprisonment and
fine of Rs.500/- for each offence under
Sections 323 and 504 I.P.C. In default of
fine to undergo simple imprisonment for a
month to each under Sections 323/34 and
504 I.P.C.

3. During the pendency of the appeal
appellant no.4 Brindavan died and appeal
against him has been dismissed as abated
vide order dated 10.04.2019. Hence, this
appeal is confined only against the
applicant no.1 Rakesh, appellant no.2
Gopal and appellant no.3 Mohan.

4. According
to prosecution on
08.01.1997 injured Deshraj was looking after
his crops in the field, when at about 12:00 hours
of the day Rakesh, Gopal, Mohan sons of
Brindavan and Brindavan came there and
forcefully started filling fodder (kutti) from his
burgi (small turret). On his objection accused
persons started abusing and beating the injured
Deshraj, accused Gopal fired shot from his
illegal country-made pistol which hit his left
leg. Mohan beat him with stick (lathi). Ram
Mohan reached the spot otherwise they would
have killed him. Jagdish son of Siya Ram, Shiv
Shankar son of Bhagwandas, Chokhey Lal son
of Jhabba Ram and others have witnessed the
incident. Accused Jagdish is resident of Navipur
and other accused are resident of village of the
injured.

5. On the basis of written report (Ext.Ka1) lodged by informant Komal Prasad on
08.01.1997 at 12:30 P.M. chik F.I.R. (Ext.Ka-4)
was registered u/s 323, 504, 324 and 307 I.P.C..
Investigation of the case was entrusted to S.I.
S.M. Husain (P.W.7 ) and G.D. entry (Ext.Ka-5)
was also prepared on the same day. Injured
Deshraj was sent to P.H.C., Mursan after
preparing the majrubi chitthi along with
constable Bhure Singh, where Dr. Ramveer
Singh (P.W.5) examined the injured on
08.01.1997 at 1:30 P.M.and prepared injury
report Ext.Ka-3, according to which following
injuries were found on the body of the inured.

1. Gun shot wound of entry of size 2
c.m. x 1.5 c.m. muscle deep left thigh middle
side 16 c.m. above medial end of left knee
below palpable. No wound of exit Advised xray.

2. Contusion of size 2.5 c.m. x
1.5 c.m. back of right shoulder joint above
supramedial angle reddish in colour.

3. Contusion 6 c.m. x 2 c.m. right
side of chest back just below inferior angle
reddish in colour.

4. Contusion 2 c.m. x 1 c.m. left
side back and supramedial angle.

Injury
no.1
kept
under
observation and advised x-ray. Injury nos.2,
3 and 4 are simple in nature. Injury no.1 is
caused by fire arm weapon while injury
nos.2, 3 and 4 are caused by hard and blunt
object.

6. Investigating Officer observing
necessary formalities prepared spot map
(Ext.Ka-6) on the pointing of the informant
Komal Prasad (P.W.1) and after completing
the
investigation
filed
charge
sheet
(Ext.Ka-7) under Sections 323/34, 324/34,
307/34 and 504 I.P.C. against accused
persons before the court of C.J.M., Aligarh,
who took cognizance of the case and
committed accused to the court of sessions
for trial where the Case Crime No. 2 of
1997 was registered as Session Trial No.62
3-5 All. Rakesh & Ors. Vs. State of U.P.
623
of 1998, from where it was transferred to
the court of Additional Sessions Judge13th, who framed charge under Section
323/34, 324/34, 504 and 307/34 I.PC.
against the accused persons.

7. Prosecution to prove charge against
the accused persons produced seven
witnesses. P.W.1 Komal Prasad infomrant,
P.W.2 Deshraj injured and Ram Mohan
(P.W.3) are the witnesses of fact, P.W. 4 Dr.
R.P. Gupta conducted x-ray, P.W.5 Dr.
Ramveer
Singh
conducted
medical
examination of the injured, P.W.6 Sri Ram,
scribe of chik and G.D. and P.W.7 S.M.
Husain I.O. are the formal witnesses. After
examination of prosecution witnesses,
statement of the accused persons were
recorded under Section 313 Cr.P.C. In their
statement under Section 313 Cr.P.C., they
have stated that on account of enmity case
proceeded against them. Accused persons
have produced D.W.1 Dr. V.P. Gupta in
their defence.

8. After hearing the parties and perusal of
the record the Additional Sessions Judge-13th,
Aligarh passed the impugned judgement and
order, hence this appeal.

9. Learned counsel for the appellants
submits that according to prosecution Gopal
had country-made pistol, Mohan had 'Lathi',
Brindavan and Rakesh were unarmed. Accused
persons beat Deshraj with leg and fists. Gopal
fired from country-made pistol upon the
injured, Mohan beat him with 'Lathi'. In the first
information report Jagdish, Shiv Shankar,
Chokhey Lal are alleged eye witnesses of the
incident but no independent witness has been
produced by the prosecution, only son and
grandson interested and related witnesses have
been produced which casts a doubt on the
prosecution case. Next submission is that
according to injured from a distance of near
about one and half hand accused Gopal had
fired shot at him and as per medical
jurisprudence if injury is caused within a
distance of five feet then blackening and
tattooing will be present but as per injury report
Ext.Ka-3 in the present case no blackening and
tattooing has been found. Further alleged injury
is not found through and through injury. In that
situation pellets would have been found in the
injury. But as per X-Ray report (Ext.Ka-2.), no
abnormality has been found, therefore, he
submits that injury as alleged is also not proved.
He further submits that as per injury report fire
arm injury has been found on the left thigh,
therefore, it cannot be said that there was
intention to kill the injured. He also submits that
accused Gopal was admitted in Bagla Civil
Hospital, Hathras on 08.01.1997 at 08.15 A.M.
and he was discharged on 10.01.1997 at 09.00
A.M., which is proved by D.W.1 Dr.V.P.Gupta,
therefore, accused Gopal was not present at the
alleged time of the incident. Lastly, he submits
that injured P.W.2 Deshraj has accepted that his
wife had purchased six bighas land from
Jagdish although he has denied knowledge
of agreement to sell of the land executed by
Panna Lal in favour of Jagdish and the
agreement executed by Panna Lal in favour
of Jagdish was cancelled by the High
Court. But he has admitted that in respect
of the six bighas land, which was
purchased by his wife, Panna Lal has
executed a sale deed before the incident in
favour of accused and their sister Rajvati.
Thus, it becomes clear from the evidence
that there was enmity between the parties
and that is why the accused persons have
been falsely implicated in the case.

10. Per contra learned A.G.A. submits
that it is a case of broad day light
incidence. Prompt F.I.R. has been lodged
regarding the incident. Doctor has opined
that fire arm injury has been caused to the
injured. Prosecution version is supported
624 INDIAN LAW REPORTS ALLAHABAD SERIES
by medical evidence also. From the
evidence on record the causing of the
incident by the accused persons is proved.
Witnesses have stated that with intention to
kill, accused Gopal had fired upon the
injured. By chance the injury was caused
on a non-vital part but intention of causing
fatal injury is clear. Learned trial judge has
rightly
convicted
and
sentenced
the
appellant and no interference is required by
this Court.

11. As per first information report
(Ext.Ka-4) incident occurred on 08.01.1997
at 12.00 hours of the day regarding which
information was given at 12.30 P.M. on
08.01.1997. P.W.6 Sri Ram has stated that
on the written report of informant Komal
Prasad had registered Case Crime No.2 of
1997, under Sections 323, 504, 324, 307
I.P.C.of which chik no.2 of 1997 is in his
writing and signature and has been proved
by him as Ext.Ka-4. Relating to it an entry
was made in the G.D. at serial no.24 on
08.01.1997 to which also he has proved as
Ext.Ka-5. From his cross-examination
nothing has been extracted so that inference
may be drawn that on 08.01.1997 at 12.30
P.M. he did not register Case Crime No. 2
of 1997, under Sections 323, 504, 324, 307
I.P.C..

12. According to written report
(Ext.Ka-1), the incident had occurred at
about
12.00
hours
of
the
day
on
08.01.1997. This fact has been supported
by
P.W.1
Komal
Prasad.
In
crossexamination too at page 17 of the paper
book he has stated that the incident
occurred at 12.00 hours of the day. He had
proceeded for Police Station at 12.00 hours
of the day and reached the Police Station at
12.30 P.M. He has further stated that Police
Station from his village is at a distance of
1/2 km. and he took his father on foot
taking him on a cot. He has also stated that
in scribing the report 4-5 minutes were
taken. From his cross-examination nothing
has been extracted so that an inference can
be drawn that incident did not occur at
about 12.00 hours of the day. Injured P.W.2
Deshraj also has stated that near about three
years before the incident had occurred at
12.00 hours of the day. In crossexamination
he
has
stated
that
the
investigating officer recorded his statement
at about 12.30 P.M.. P.W.3 Ram Mohan has
also stated that near about four years
earlier, the incident had occurred at 12.00
hours of the day. From cross-examination
of P.W.2 Deshraj and Ram Mohan nothing
has been extracted so that any adverse
inference can be drawn. Thus, on the point
of occurrence of incident at 12.00 hours of
the day and lodging first information report
at 12.30 P.M. prosecution evidence is
consistent, corroborative to each other.

13. As per chik report (Ext.Ka-4),
distance of Police Station from the place of
incident is 05 kms.. P.W.1 Komal Prasad in
his cross-examination has stated that Police
Station from his village is at a distance of
1/2 km. Thus, as per statement of the
informant
and
chik
report
there
is
difference regarding distance of Police
Station from the village but from the
prosecution evidences as discussed above,
it is established that first information report
has
been
registered
at
12.30
P.M..
Regarding occurrence of incident the
witnesses have stated the time of incident
on the basis of estimation as is evident
from Ext.Ka-1 also, in which the time of
incident has been mentioned as about 12:00
hours of the day. Therefore, on the basis of
difference of distance between Police
Station and village as observed above
registration of the case at 12.30 P.M. cannot
be doubted. Thus, in the facts and
3-5 All. Rakesh & Ors. Vs. State of U.P.
625
circumstances of the case, it is established
that regarding incident at 12:00 A.M. F.I.R.
has
been
lodged
promptly
without
deliberation and consultation.

14. Admittedly, P.W.1 Komal Prasad
is the son of injured Deshraj and P.W.3
Ram Mohan is the son of informant
Komal
Prasad.
Therefore,
witnesses
produced by the prosecution are related to
each other.

15. In the case of State of
Himachal Pradesh vs. Pardeep Kumar
and others, (2018) 13 SCC 808, Hon'ble
Supreme Court in paragraph 5 of the
judgment has held as under:

"5... So far as examination of
independent witnesses in support of the
prosecution case is concerned all that
would be necessary to say in this regard
is
that
examination
of
independent
witnesses
is
not
an
indispensable
requirement and such non-examination is
not necessarily fatal to the prosecution
case..."

16. In the case of Bhajan Singh @
Harbhajan Singh & Ors. vs. State of
Haryana,
2011
(4)
Supreme
639,
Hon'ble Supreme Court in para 26 of the
judgment has held as under:

"26. Evidence of a related
witness can be relied upon provided it is
trustworthy. Such evidence is carefully
scrutinised
and
appreciated
before
reaching
to
a
conclusion
on
the
conviction of the accused in a given
case."

17. In Sadayappan @ Ganesan vs.
State, represented by Inspector of
Police, 2019 SCC OnLine SC 610, the
Hon'ble Supreme court in para 11 of the
judgment has held as under:

"11. Criminal law jurisprudence
makes a clear distinction between a related and
interested witness. A witness cannot be said to
be an "interested" witness merely by virtue of
being a relative of the victim. The witness may
be called "interested" only when he or she
derives some benefit from the result of a
litigation in the decree in a civil case, or in
seeing an accused person punished."

18. In view of the above law laid
down by Hon'ble Supreme Court we have
to carefully scrutinize and appreciate
evidence of witnesses as to whether they
are trustworthy as well as whether
witnesses will derive some benefit from the
result of litigation in seeing the accused
persons punished.

19. On going through the evidence of
P.W.1 Komal Prasad, P.W.2 Deshraj and
P.W.3 Ram Mohan we find that the
witnesses are not likely to derive any
benefit if accused are punished.

20. P.W.1 Komal Prasad has stated
that he knows Maya Devi. Maya Devi had
lodged report against him under Sections
323, 324 I.P.C.. He has also stated that a
'Marpeet'
was
committed
with
him
regarding which he had lodged report,
thereafter Maya Devi also lodged report. In
the case of Maya Devi, Gopal was witness
and in his report he was accused. He has
also stated that on the basis of report by
Mohan a case is pending under Section 307
I.P.C. against him, his son and his brother
of which also there is cross case pending
against Mohan. He has further stated that
he knows Jagdish of his village but he has
no knowledge whether Panna Lal had
executed any agreement to sell for ten and
626 INDIAN LAW REPORTS ALLAHABAD SERIES
half bighas land in favour of Jagdish. He
has admitted that his mother's name is
Asharfi Devi and 28 years before the
incident his mother Asharfi Devi had
purchased land from Jagdish. It is not in his
knowledge that any case is pending
regarding this land between Jagdish and
Panna Lal. He has also stated that it is
wrong to say that he has purchased this ten
and half bighas land from Jagdish. True
fact is that he has purchased seven and half
bighas land from Jagdish. It is not in his
knowledge that this seven and half bighas
land was sold to accused persons and their
sister Rajvati. He has also stated that
regarding that land litigation is pending
between Panna Lal and him. He has not
arrayed accused persons as party in the
case.

21.

P.W.2
Deshraj
in
crossexamination has also stated that name of
his wife is Asharfi Devi. He does not know
Panna Lal. He has no knowledge about his
land in the village and it is also not within
his knowledge that Panna Lal executed a
sale deed of seven and half bighas land in
favour of Jagdish. His wife purchased six
bighas land from Jagdish thirty years
before the incident. He has no knowledge
about the litigation on this land between
Panna Lal and Jagdish and he has denied
that Jagdish lost the case from the court of
Munsif, Hathras and the High Court and
has stated that the case was dismissed in
default. He has further stated that it is not
in his knowledge that the agreement to sell
executed by Panna Lal in favour of Jagdish
was cancelled by the High Court or not. He
has admitted that before the incident in
respect of six bighas land which was
purchased by his wife Asharfi Devi a sale
deed was executed by Panna Lal in favour
of accused and their sister Rajvati. On
purchase of his land by the accused persons
he did not feel any ill-will because they had
purchased the same legally. He has also
stated that accused persons are not in
possession after purchase of the land. Land
is in possession of 'Supurdgar'. Above
statements of witnesses P.W.1 Komal
Prasad and P.W. 2 Deshraj show that there
was a litigation between informant and
accused about the land purchased by the
wife of the injured and criminal cases
between Komal Prasad and Mohan are
pending. Thus, it is inferred that the
witnesses had inimical terms with the
accused.

22. It is well settled that enmity is a
double edged weapon and it cuts both
sides. On the basis of enmity on the one
hand one can be falsely implicated and on
the other hand one can cause incident also.
Therefore, keeping in mind, we have to
analyse
the
evidence
of
prosecution
witnesses.

23. P.W. 1 Komal Prasad has stated
that his father was on the field at 12.00
hours of the day to look after the field.
Gopal, Mohan, Rakesh and Brindavan of
the village were taking fodder from 'Burgi'
on his filed. When his father objected they
started abusing and beating him with legs,
fists and 'Danda'. Gopal with intention to
kill fired with illegal country made pistol,
the shot hit the injured on left leg, Mohan
beat him with a lathi. Receiving of fire arm
injury by Deshraj in the left leg and other
injuries on account of beating by accused
persons is supported by the injury report
(Ext.Ka-3) proved by P.W.5, Dr. Ramveer
Singh. He has also stated that Shiv Shankar,
Ram Mohan, Chokhey Lal and Jagdish
reached the spot. He also reached the spot.
In cross examination this witness has stated
that if the Investigating Officer has not
recorded in his statement regarding fire by
3-5 All. Rakesh & Ors. Vs. State of U.P.
627
Gopal with intention to kill and reaching
the witnesses on the spot then he cannot tell
any reason. It indicates that before the court
this witness has improved his version
regarding firing by accused with intention
to kill. He has also stated that it is true that
he wrote in his report that he had reached
the spot. He has also stated that at the time
of incident he was at his 'Gher' (boundary).
The place of incident from his 'Gher'
(boundary) is 3-4 fields away. He reached
the spot on hearing noise. He had reached
the place of incident at the time of
committing 'Marpeet'. He had seen the
accused committing 'Marpeet' in the way.
He has given description with regard to
taking out fodder from the 'Burgi'. From his
statement it is inferred that the place of
incidence is not far away from his 'Gher'
(boundary). In case of 'gher' being situated
near the place of incident and the incident
has occurred in the field, incident can be
seen by him. Therefore, his statement
appears to be true that he had seen the
incident while on the way and he also
reached the spot. No other material has
been elicited from his cross-examination so
that his statement regarding abusing,
beating by fists and legs by accused
persons, causing 'Lathi' and fire arm injury
to injured Deshraj by Mohan and Gopal
respectively can be doubted. Thus, on
careful scrutiny of his testimony, we find
that even if the witness P.W.1 Komal
Prasad had inimical terms with the accused,
his evidence regarding abusing and causing
leg and fists, 'Lathi' and fire arm injury by
accused
Rakesh,
Mohan
and
Gopal
respectively is trust worthy and reliable.

24. P.W.2 Deshraj is the injured and
an important witness of the case. He has
stated that he was looking after his field at
about 12.00 hours of the day. At that time
Brindavan, Rakesh, Gopal, Mohan came to
his field and forcefully started taking 'Kuti'
(fodder) from his Burgi. Deshraj objected
and then accused persons abused him and
started 'Marpeet' and Gopal with intention
to kill fired upon him. The shot hit his left
leg. The other accused persons beat him by
'Lathi', legs and fists. On his alarm Ram
Mohan, Komal, Shiv Shanker, Jagdish,
Chokhey Lal came there.

25. He has stated that if the
Investigating Officer has not recorded his
statement that Gopal had fired upon him
with intention to kill then he cannot tell any
reason of it. He has also stated that he told
the Investigating Officer that Ram Mohan
and Komal came to the spot and saved him.
If the Investigating Officer has not recorded
this in his statement then he cannot tell any
reason for it. In above discussion, we have
found Komal Prasad is a witness of
incident and he reached the spot also,
hence, even if in his statement it has not
been recorded by the Investigating Officer,
witnessing and reaching the place of
incident of Komal Prasad cannot be
doubted. Witnessing the incident by P.W. 3
Ram Mohan has been disclosed in the FIR
itself which has been lodged promptly and
is his cross-examination nothing has been
extracted so that his presence on the spot
can be doubted, therefore, witnessing and
reaching the place of incident of P.W.3,
Ram Mohan is also established.

26. P.W. 2 Deshraj the injured at page
29 of the paper book has stated that firstly
accused persons abused then committed
'Marpeet' with him and during 'Marpeet'
Gopal fired upon him. He has also stated
that Mohan had a 'Lathi', Rakesh had
nothing but he was beating him with legs
and fists. Brindavan was also unarmed, he
was beating him then Gopal fired on him
the shot hit his thigh which is corroborated
628 INDIAN LAW REPORTS ALLAHABAD SERIES
by the injury report (Ext. Ka-3). The
statement of this witness regarding abusing
and firing by Gopal and beating by 'Lathi'
by accused is consistent with the written
report (Ext.Ka-1). He has also stated that
hearing the sound of fire, the witnesses
came to the spot. The witnesses were
already coming and going. The witnesses,
who were coming and going on the way
among them Komal Prasad and Ram
Mohan were coming to the field itself. Shiv
Shanker, Chokhey Lal and Jagdish were
going to the market. He has also narrated
the incident in detail on asking by the
defence. The core case of the prosecution is
not shaken from the cross-examination with
regard to abusing by accused persons,
beating by fists and legs by accused person,
beating by 'Lathi' by accused Mohan and
causing fire arm injury by the accused
Gopal. Thus, on a careful analysis of the
whole statement as discussed above, even if
the accused and injured P.W.2 Deshraj had
inimical terms his evidence regarding the
incident is trust worthy and reliable.

27. P.W.3 Ram Mohan has also
supported the prosecution version. From
his cross-examination nothing material has
been elicited so that his presence on the
spot and his testimony regarding the
incident can be doubted.

28. Defence has also produced D.W.1
Dr. V.P. Gupta in order to prove that
accused Gopal was not present at the time
of incident and this witness has stated that
Gopal Sharma, the accused, was admitted
in the hospital on 08.01.1997 at 8:15 A.M.
and discharged on 10.01.1997 at 9:00 A.M.
He has admitted in cross examination that
in
the Admission
Register
time
of
admission is not mentioned. On the bed
head ticket name and address is not written
in his hand writing. He has also stated that
loose bundle of bed head tickets remains
with the pharmacist. It is also stated that
Mukesh Kumar who has written the name
and address is still in service. According to
him the patient had freedom of movement
from which it can be inferred that the
accused Gopal was not an indoor patient.
He has also stated that he does not
supervise patient at all times because
patient remains in the ward and he does
outdoor duty. Therefore, from the statement
of this witness, it cannot be said that
presence of accused Gopal at the time of
incident was impossible. Accordingly, we
find no substance in the contention of
learned counsel for the appellant that Gopal
was not present at the time of incident.

29. According to prosecution a fire
arm injury in the thigh of Deshraj was
caused by Gopal. P.W. 5 Dr.Ramveer Singh
found injury no.1 a fire arm injury and he
was feeling pellet in the injury. There was
no tattooing and scorching in the wound
and it was not an exit wound. X-ray was
advised and according to P.W.4, no
abnormality was found in the X-ray on
which learned counsel for the appellants
submits that if fire arm injury was caused
and there was no exit wound then in that
situation pellets would have been found in
the body. P.W.2 in his cross-examination at
page 24 of the paper book has stated had
Gopal had fired upon him from a hand, one
and half hand and at page 29 of the paper
book has stated that Gopal had fired from a
distance of 02 hands, on which he submits
that as per medical jurisprudence if fire arm
injury is caused within a distance of 05 feet
then blackening and tattooing will be
present.

30. In spot map (Ext. Ka-6) proved by
P.W.7
S.I.Syed
Masook
Husain,
Investigating Officer, place XA has been
3-5 All. Rakesh & Ors. Vs. State of U.P.
629
shown as the place of causing injury and
place XB has been shown from where
accused Gopal fired. The distance of place
XA from place XB is shown as 10 steps .
In cross examination at page 24 of the
paper book he has stated that Gopal had
fired upon him from a distance near about
a hand, one and half hand and on page 29
he has stated that when the accused were
taking out fodder from the 'Burgi' he was
at a distance of two hands. He has further
stated that the accused were committing
'Marpeet' and at that time Gopal fired.
Such a statement has been made by the
witness on 01.02.2000 and 01.03.2001.
While the incident has taken place on
08.01.1997. The witness is also a rustic
witness, therefore, in view of the nature
of injury caused to him and the varied
statement at the same time, i.e., a hand,
one and half hand and two hands while as
per spot map (Ex.Ka-6) distance has been
shown as 10 feet which was prepared at
the time of incident, therefore, there is no
reason
to
disbelieve
the
distance
disclosed in the spot map. Thus, on
account of not finding blackening and
scorching on the wound prosecution case
cannot be doubted.

31. As per X-ray report (Ext. Ka2)
proved
by
Dr.R.P.Gupta
no
abnormality has been found in the fire
arm injury. As per page 537 and 538 of
MODI Medical Jurisprudence And
Toxicology 24th Edition Reprint 2012,
"when the wound of entrance is present,
but not the wound of exit, it means that
a bullet is lodged in the body, except in
those rare cases where a bullet has
been coughed out after entering the
respiratory passages or lost in the stool
after entering the intestinal tract and
also where a bullet by coming in
contact with a bone is so deflected as to
pass out by the same orifice as it
entered."

32. In view of Modi Medical
Jurisprudence, in rare case bullet is
deflected from the same orifice from
which it entered. Prosecution evidence
on the point of causing fire arm injury
to injured Deshraj is consistent and
corroborated with medical evidence.
Therefore, keeping in view of Modi
Medical jurisprudence, on the basis of
not finding any bullet in the body of the
injured
and
distance
disclosed
by
witness between accused and himself,
we do not find any substance in the
contention of the learned counsel for
the appellants that if fire arm injury is
caused within a distance of two hands
blackening and tattooing will be found
and there is no exit injury, therefore,
pellet should be present in the injury.

33. Considering the evidence
produced
by
the
prosecution
as
discussed above, we find that evidences
of P.W.1, P.W.2 and P.W. 3 are
consistent, trust worthy and reliable
with regard to the incident, therefore,
the contention of the learned counsel
for the appellants also has no force that
on account of enmity they have been
falsely implicated.

34. According to Ext.Ka-1, accused
Gopal caused fire arm injury on the left leg
of injured Deshraj. Injured Deshraj has
stated that when accused were beating him
at that time Gopal fired upon him which
indicates that firing by Gopal to the injured
Deshraj was not in furtherance of common
intention of other accused. It was his lone
act. Therefore, all the accused persons
cannot be held liable for causing fire arm
injury by accused Gopal. Further, in
630 INDIAN LAW REPORTS ALLAHABAD SERIES
Ext.Ka-1 it is mentioned that fire arm
injury hit the left leg of Deshraj. Seat of
injury is on the thigh which is not a vital
part. Injured and other witnesses have
improved their statement that with intention
to kill the accused fired upon the injured, it
was not the case of the prosecution that
with intention to kill the shot was fired by
the accused Gopal targeting a vital part but
injury was caused on a non-vital part. As
per evidence of the injured also the accused
started beating and at once Gopal fired and
the shot hit the injured on his thigh. In such
a situation it cannot be inferred that
intention of the accused was to kill the
injured. Therefore, charge under Section
307 I.P.C. is not proved. Causing fire arm
thigh injury by accused Gopal is proved,
therefore, offence under Section 324 I.P.C
against him is made out and for the same he
is liable.

35. On a conspectus of facts and
circumstances of the case and close
scrutiny of the evidence available on
record, as discussed above, we find that
prosecution evidence is consistent, trust
worthy, and corroborated by medical
evidence. Fire arm injury by Gopal was not
caused in furtherance of common intention
of all the accused persons. Therefore, for
causing fire arm injury he is alone liable for
his act. Injury was not caused with
intention to kill, therefore, he is not liable
for punishment under Section 307 I.P.C. but
fire arm injury on thigh is proved, for
which he is liable to be punished under
Section 324 I.P.C. Punishment of appellants
Rakesh, Gopal and Mohan under Section
307/34 I.P.C is not proper and is liable to
set aside. Consequently, they are liable to
be acquitted under Section 307/34 I.P.C. So
far as offence under Sections 323, 504
I.P.C. is concerned, prosecution evidence in
this regard is consistent, corroborative to
each other. Therefore, conviction and
sentence is liable to be affirmed.

36. The appeal is, therefore, partly
allowed. The impugned judgment and order
convicting and sentencing the appellants
Rakesh, Gopal and Mohan under Section
307 I.P.C. is set aside and they are acquitted
for the offence under Section 307/34 I.P.C..
Appellant Gopal is convicted under Section
324
I.P.C.
and
in
the
facts
and
circumstances of the case he is sentenced to
rigorous imprisonment for a period of two
years. The appellant no.1 Rakesh, appellant
no.2 Gopal and appellant no.3 Mohan are
on bail. Their bail bonds are cancelled.

The court concerned is directed to
take the appellants into custody to serve out
the sentences awarded to them by the trial
court under Sections 323, 504 I.P.C. and
appellant Gopal under Section 324 I.P.C. as
aforesaid.

Office is directed to communicate
this decision to the court concerned
forthwith and also send back the record.
----------
(2020)03-05ILR A630
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 2189 of 1990

Arvind & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri M. Islam, Sri Nazrul Islam Jafri

Counsel for the Opposite Party:
D.G.A.