# Sushil Phari v. State of U.P

- **Citation:** (2023) 12 ILRA 760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-05
- **Case number:** Criminal Appeal No. 19 of 2000
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-phari-v-state-of-u-p-49526
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 307 - Arms Act, 1959 - Section 25
- Evidence Act, 1872 - Section 27 -
Attempt to Murder - Firearm Injury - Recovery
Memo - Independent Witnesses - Proof Beyond
Reasonable Doubt

The appellant, Sushil Phari, challenged his
conviction under Section 307 IPC and sentence
of 7 years rigorous imprisonment with a fine of
Rs.2,000/-, imposed by the Special/Additional
Sessions Judge, Rae Bareli, vide judgment dated
03.01.2000,
arising
from
an
incident
on
09.12.1997 where he allegedly fired at Station
House Officer F.S. Jafri at Bachhrawan bus stop,
causing a lacerated wound on his forehead. The
prosecution alleged the appellant, a suspected
robber, fired a country-made 12-bore pistol,
leading to his arrest, recovery of the pistol, live
and empty cartridges, and a stampede in the
market.
The
prosecution
relied
on
the
testimonies of PW-1 (injured SHO), PW-2
(Constable Mahesh Singh), PW-3 (independent
witness Ajay Singh, who turned hostile), PW-4
(Investigating Officer), and PW-5 (Dr. Suresh
Kapoor), along with the injury report and
recovery memo. The appellant denied the
incident, claiming he was arrested while having
tea. Held: (1) The appeal was allowed, and the
conviction was set aside. (2) The prosecution
failed to prove beyond reasonable doubt that
the injury sustained by PW-1 was a firearm
injury, as PW-5 (doctor) could not confirm the
cause of the lacerated wound, and no forensic
evidence or X-ray report was produced. (3) The
recovery memo was doubtful, as independent
witnesses (PW-3 and Mohan) did not sign it,
PW-3 turned hostile and denied the incident,
and Mohan was withheld, warranting adverse
inference
against
the
prosecution.
(4)
Contradictions in PW-1 and PW-2's testimonies,
such as the appellant's location (standing near
the road or in a jeep) and the improbability of
no other injuries in a crowded market despite
alleged indiscriminate firing, rendered the
prosecution story unreliable. (5) The trial court
erred in convicting the appellant without
discussing
PW-5's
testimony
and
without
evidence that the injury was caused by a
12 All. Sushil Phari Vs. State of U.P.
761
firearm or by the appellant, failing to establish
the ingredients of Section 307 IPC (intention or
knowledge to cause death), as per St. of
Madhya Pradesh Vs Imrat & anr. and Jage Ram
Vs St. of Haryana. (6) The absence of bloodstained clothes or soil and the delay in medical
examination further weakened the prosecution
case, making the incident appear false. The
appellant was set free, and bail bonds were
discharged.

Case Law cited:

## Text

760 INDIAN LAW REPORTS ALLAHABAD SERIES
any fresh decision. Since there is no
amendment to the relevant provisions in
this regard by the 1976 Amendment there
would be no necessity of the Prescribed
Authority embarking on a fresh enquiry as
to whether the said plots are irrigated or
not. In such an event the previous order of
the Prescribed Authority made before 10th
October, 1975 will neither stand annulled
nor be non-est."

12. Even form the aforesaid judgment
it is clear that it is only under certain
specific circumstances as stated under the
Act itself that the proceeding can be reinitiated and in the present case none of
these facts exist for re initiation of the
proceedings.
Both
the
orders
are
accordingly illegal and deserve to be set
aside.

13. Accordingly the order dated
22.7.1991
passed
by
the
Prescribed
Authority and the order dated 31.7.1996
passed
by
the
Ist
Additional
Commissioner,
Lucknow
Division,
Lucknow are set aside.

14. The writ petition is allowed.
----------
(2023) 12 ILRA 760
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 19 of 2000

Sushil Phari ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
S. Pradhan, Ram Mohan Mishra
Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 307 - Arms Act, 1959 - Section 25
- Evidence Act, 1872 - Section 27 -
Attempt to Murder - Firearm Injury - Recovery
Memo - Independent Witnesses - Proof Beyond
Reasonable Doubt

The appellant, Sushil Phari, challenged his
conviction under Section 307 IPC and sentence
of 7 years rigorous imprisonment with a fine of
Rs.2,000/-, imposed by the Special/Additional
Sessions Judge, Rae Bareli, vide judgment dated
03.01.2000,
arising
from
an
incident
on
09.12.1997 where he allegedly fired at Station
House Officer F.S. Jafri at Bachhrawan bus stop,
causing a lacerated wound on his forehead. The
prosecution alleged the appellant, a suspected
robber, fired a country-made 12-bore pistol,
leading to his arrest, recovery of the pistol, live
and empty cartridges, and a stampede in the
market.
The
prosecution
relied
on
the
testimonies of PW-1 (injured SHO), PW-2
(Constable Mahesh Singh), PW-3 (independent
witness Ajay Singh, who turned hostile), PW-4
(Investigating Officer), and PW-5 (Dr. Suresh
Kapoor), along with the injury report and
recovery memo. The appellant denied the
incident, claiming he was arrested while having
tea. Held: (1) The appeal was allowed, and the
conviction was set aside. (2) The prosecution
failed to prove beyond reasonable doubt that
the injury sustained by PW-1 was a firearm
injury, as PW-5 (doctor) could not confirm the
cause of the lacerated wound, and no forensic
evidence or X-ray report was produced. (3) The
recovery memo was doubtful, as independent
witnesses (PW-3 and Mohan) did not sign it,
PW-3 turned hostile and denied the incident,
and Mohan was withheld, warranting adverse
inference
against
the
prosecution.
(4)
Contradictions in PW-1 and PW-2's testimonies,
such as the appellant's location (standing near
the road or in a jeep) and the improbability of
no other injuries in a crowded market despite
alleged indiscriminate firing, rendered the
prosecution story unreliable. (5) The trial court
erred in convicting the appellant without
discussing
PW-5's
testimony
and
without
evidence that the injury was caused by a
12 All. Sushil Phari Vs. State of U.P.
761
firearm or by the appellant, failing to establish
the ingredients of Section 307 IPC (intention or
knowledge to cause death), as per St. of
Madhya Pradesh Vs Imrat & anr. and Jage Ram
Vs St. of Haryana. (6) The absence of bloodstained clothes or soil and the delay in medical
examination further weakened the prosecution
case, making the incident appear false. The
appellant was set free, and bail bonds were
discharged.

Case Law cited:

1. St. of M.P. Vs Imrat & anr., (2008) 11 SCC
523

2. Manoj Kumar Soni Vs The St. of M.P., Criminal
Appeal No. 1030/2023

3. St. of M.P. Vs Kanha @ Omprakash, (2019) 3
SCC 605

4. Jage Ram Vs St. of Har., (2015) 11 SCC 366

5. Sumersinbh Umedsinh Rajput Vs St. of Guj.,
(2007) 13 SCC 83

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Sri Ram Mohan Mishra,
learned counsel for appellant and Sri Alok
Tiwari, learned A.G.A. for the Staterespondents.

2. This appeal has been filed against
the judgment and order dated 03.01.2000
passed by Special/Additional Sessions
Judge, Rae Bareli in S.T. No.181 of 1998
and 182 of 1998 arising out of Case Crime
No.255
of
1997,
Police
Station
Bachhrawan, District Rae Bareli whereby
the appellant has been convicted for
offence under Section 307 IPC and
sentenced to undergo 7 years rigorous
imprisonment along with fine of Rs.2,000/-
and in default of making payment of fine,
appellant would further undergo 2 years
rigorous imprisonment.

3. Prosecution is that on 09.12.1997 at
around 05:40 pm in Kasba Bachhrawan,
P.S. Bachhrawan, District Rae Bareli,
Station House Officer F.S. Jafri who was
patrolling along with Constable Triyugi
Narain Mishra and Constable Mahesh
Singh on Bachhrawan chauraha came to
know through a secret informer that
appellant-Sushil Phari who is a dreaded
robber and has committed several incidents
of robbery in Allahabad, Lucknow and
Kanpur is present on Bachhrawan bus stop
to perform yet another heinous offence
along with his companion and if acted
promptly, he can be caught. Believing on
this information, the police officials along
with informer reached at Bachhrawan bus
stop at 05:40 pm and on the signal of
informer as soon as the police team
proceeded forward, appellant-accused by
exhorting the police team with intention to
kill started firing on the Station House
Officer. The police party ran to catch him
then accused ran towards Lucknow by
making
indiscriminate
firing
in
the
Bachhrawan bazar. Station House Officer,
F.S. Jafri received bullet injury on his face
but without being disturbed, the police
party at a distance of 100 yards caught the
accused. From the accused one country
made pistol of 12 bore and two empty
cartridges of 12 bore were recovered which
were taken into possession by the police.
Two live cartridges were also recovered
from the right pocket of the jacket worn by
the accused. Due to this incident, there was
stampede in the Bachhrawan bazar and
traffic got disturbed. The accused failed to
show the license. He was arrested and fard
of recovered articles i.e. country made
pistol and cartridges was prepared on the
spot i.e. Ex.ka-1. Chik F.I.R. (Ex.ka-5) was
lodged on the same day at 19:15 hours and
Case Crime No.255/1997, under Section
307 IPC was registered along with Case
762 INDIAN LAW REPORTS ALLAHABAD SERIES
Crime No.256/1997, under Section 25
Arms Act which was mentioned in the
general
diary
Rapat
No.32
dated
09.12.1997 at 19:15 hours, the carbon copy
is Ex.ka-6. The injured F.S. Jafri was
examined
at
PHC
Bachhrawan
on
09.12.1997 at 09:00 pm. The following
injury was found on his person:-

"Examined Sri F.S. Jafri aged 37
years S/o Late A.S. Jafri R/o Station Officer
(S.O.) Bachhrawan, Rae Bareli at 09:00 pm
on 09.12.1997 B/B Self

M.I.: A raiseel blackish brown
mole on right side forehead 1.6 cm above
right eyebrow.

Injuries:- (1) Lacerated wound
1.0 cm X .5 cm X muscle deep on left side
forehead, 1.0 cm above left eye brow.
Advised X-ray skull for presence of pellet.

(2) Abrasion .4 cm X .5 cm on the
left side forehead, 2.5 cm above the injury
No.1.

Opinion:- All the injuries are
fresh, injury No.1 is kept under observation
and advised x-ray cause of injury No.1 is
K.U.O. and rest are caused by friction
against hard and rough object."

The injury report is Ex.ka-8. The
injuries were fresh and were kept under
observation and x-ray was advised. The
Investigating Officer, Gaya Prasad Mishra
conducted the investigation who after
completing the formalities prepared the site
plan Ex.ka-2 took the statements of the
prosecution witnesses and filed the chargesheet under Section 307 IPC, Ex.ka-3 and
charge-sheet under Section 25 Arms Act
Ex.ka-4. The sanction for prosecution was
taken by the Magistrate under Section 39
Arms Act which is Ex.ka-7. The charges
under Section 307 IPC were framed by the
Additional Sessions Judge, Rae Bareli on
15.04.1998. Charges were read over to the
accused who denied the charges and prayed
for trial.

4. To prove the charges, the
prosecution has produced PW-1, F.S. Jafri,
the injured and the eye witness of the
incident, PW-2, Constable Mahesh Singh
who was also eye witness. PW-3, Ajay
Singh has been produced as an independent
witness of the recovery. PW-4, Gaya Prasad
is the Investigating Officer. PW-5, Dr.
Suresh Kapoor, the then in-charge Medical
Officer, PHC Bachhrawan who has proved
the injury report.

5. The accused was examined under
Section 313 Cr.P.C. who has denied the
incident and his defence was that while he
was coming from Allahabad to Lucknow
via zeep, on the way he stopped at
Bachhrawan and was having tea then the
police has arrested him from the zeep and
has also taken Rs.2920/-, cloths, pant etc.

6.

PW-1
has
supported
the
prosecution story. He stated that incident is
of 09.12.1997 at that time he was posted as
S.H.O. Bachhrawan. He further stated that
he along with Constable Triyugi Narain
Mishra and Constable Mahesh Singh on
Bachhrawan chauraha came to know
through a secret informer that appellantSushil Phari is at bus station with intention
to commit a heinous offence. Believing on
this information, he along with other police
officials
and
informer
reached
at
Bachhrawan bus stop at 05:40 pm and on
the signal of informer as soon as the police
team
proceeded
forward
accused
by
exhorting the police team with intention to
kill started firing on him. The police party
ran to catch him then accused ran towards
Lucknow by making indiscriminate firing
in the Bachhrawan bazar. The police party
at a distance of 100 yards caught the
12 All. Sushil Phari Vs. State of U.P.
763
accused along with country made pistol and
cartridges. Due to this incident, there was
stampede in the Bachhrawan bazar and
shopkeepers, after shutting down their
shops, ran away. On asking the name and
address of captured robber, he told his
name Sushil Phari and on his personal
search one country made pistol of 12 bore,
two
live
cartridges
and
two
empty
cartridges were recovered which were
taken into possession. He stated that due to
fear no one from the public came there. He
has proved the recovered 12 bore country
made pistol and two live cartridges and two
empty cartridges which are Ex.1, 2, 3, 4
and 5.

In the cross, he has stated that
from the police station, the place of
occurrence was 15-100 yards. He along
with the police team went to the place of
occurrence on foot. He stated that inside
the bus station, 24 hours there were almost
200-300 persons were present and they
come inside and go outside the bus station.
He asked people to give statement then
they refused. He does not remember that as
to from which side the accused fired. He
has stated in the fard that one person has
fired upon him. He had shown the place
from where the fire was made to the
Investigating Officer. The fire shot came on
his face and treatment of this injury was
done at PHC Bachhrawan. He denied the
suggestion that no injury was caused to
him. He also denied the suggestion that he
did not receive the bullet injury. He stated
that on the left side of his forehead, he
received the injury. The accused was
caught in front of the canabees shop. He
does not know the name of the owner of the
shop. He did not tell the name of the owner
of the shop to the Investigating Officer. He
further stated that the distance between the
place where the accused was arrested and
empty cartridges were found was 100
yards. He stated that after lodging the case,
he got himself treated at PHC Bachhrawan
and by that time the blood was oosing out
from injury No.1. He denied the suggestion
that the accused was caught from the zeep
and was put behind the bars.

7. PW-2, Constable Mahesh Singh,
has repeated the prosecution story in his
examination-in-chief.

In the cross, he has stated that he
does not know at what time he departed
from the police station however, he reached
at the place of occurrence at 05:40 pm. The
accused was intermittently firing and
running. He stated that accused was caught
in the main bazar. The Bachhrawan main
bazar
was
250-300
yards
from
the
Bachhrawan crossing. He further stated that
at the time of arrest, one live cartridge was
recovered from the country made pistol. At
the same place, the PW-1 has searched the
accused and prepared the recovery memo.
When the recovery memo was being
prepared, two independent witnesses were
present namely, Mohan and Ajay Singh
however, they were not asked to sign on the
recovery memo. He stated that he cannot
assign the reason why their signatures were
not taken on the recovery memo. He further
stated that PW-1 has not asked these two
persons to sign on the recovery memo. He
stated that accused was standing near the
bus stop on the side of the road then he
says that he was sitting in the zeep. He
further stated that accused got down from
the zeep and ran away. He further said that
from the place where the accused was
arrested, there were several shops of biscuit
and cloths etc. and people used to come and
go. He stated that when the accused fired
on the S.H.O. (PW-1) no one else was
injured except the PW-1. The PW-1 was
764 INDIAN LAW REPORTS ALLAHABAD SERIES
bleeding. He stated that although the people
were asked to give statement but no one
was ready to become the prosecution
witness. He denied the suggestion that he
was not present on the spot. He further
denied the suggestion that he has falsely
implicated the accused appellant.

8. PW-3, independent witness, Ajay
Singh, who is also the witness of recovery
memo
has
completely
denied
the
prosecution story. He has been declared
hostile. He has denied that accused has
fired at PW-1. He further denied that the
injured received the firearm injuries. He
has also denied the suggestion that accused
ran towards Lucknow and was caught by
the police. He also denied that no statement
under Section 161 Cr.P.C. was taken by the
Investigating Officer.

9. PW-4, S.I. Gaya Prasad Mishra, the
Investigating Officer has stated that on
09.12.1997, the investigation was handed
over to him and he has taken the statement
of the accused on the same day. On
10.12.1997, he took the statement of PW-1
and investigated the spot as well as
recorded the statement of here se witnesses
Ram Kumar and Arvind. On 15.12.1997, he
has recorded the statements of formal
witnesses. On 24.12.1997 he recorded the
statement of Ajay Singh and Mohan, the
independent witnesses. He proved the site
plan as well as the charge-sheet.

In the cross, he has stated that he
does not remember the date on which the
sanction for prosecution has been taken
from the District Magistrate. He has not
mentioned the same and the date in the case
diary also. The place of occurrence was not
shown by him near the Parchune shop
rather near the canabees shop. He denied
the suggestion that accused was caught in
the middle of the bazar.

10. PW-5, Dr. Suresh Kumar Kapoor,
who medically examined the injured on the
date of the incident i.e. 09.12.1997 while he
was posted as in-charge Medical Officer,
PHC Bachhrawan, Rae Bareli. He has
stated in the examination-in-chief that he
cannot assign the reason of injury No.1.
The other injury was simple and could have
come from blunt object. He further stated
that these injuries could have come in the
night of 09.12.1997. They can come from
any hard object or by the dispersion of
pellet.

In the cross, he has stated that
injury No.1 could have come from falling,
it cannot be self inflicted. He further stated
that he has not seen any X-ray report in
regard
to
the
injury
neither
any
supplementary medical report has been
filed by him. He has denied the suggestion
that he has prepared the injury report under
pressure of the S.H.O.

11. Learned counsel for the appellant
submits that appellant has been falsely
implicated in this case. The prosecution has
not been able to prove its case beyond
reasonable doubt. Ingredients of Section
307 IPC are missing. Appellant was caught
from the zeep. No such incident took place
as alleged by the prosecution.

12. Learned A.G.A., on the other
hand, has stated that testimony of the
injured
which
has
supported
the
prosecution case is duly corroborated by
the testimony of PW-5, Dr. Suresh Kumar
Kapoor. He submits that testimony of the
injured is intact. The prosecution has
successfully proved that accused fired gun
12 All. Sushil Phari Vs. State of U.P.
765
shot by a country made pistol to the injured
and which came on his forehead.

13. Perused the record.

14. A perusal of the injury report
shows that injury No.1 is a lacerated wound
1.0 cm x 0.5 cm x muscle deep on the left
side of forehead. X-ray was advised. Injury
No.2 is abrasion i.e. 0.4 cm x 0.5 cm on the
left side of the forehead. The entire case of
the prosecution banks upon the allegation
that a gun shot was fired by the appellant
which came on the injured on his forehead
however, a perusal of the statement of PW5 shows that he has very clearly said in his
examination in chief where he has stated
that it is not possible to tell the reason of
injury No.1. The other injury was simple.
He further stated that this injury can come
from dispersion of a pellet or any other
hard object.

In the cross, he has stated that
injury No.1 can come by falling and it
cannot be self inflicted. He further stated
that he has not seen any X-ray report
neither has filed any supplementary report.
From the statement of PW-5, it is evident
that the doctor who has examined the
injured on the date of the incident at PHC
Bachhrawan has expressed his inability to
assign the cause for the injury No.1. PW-3
who is independent witness of the recovery
has denied the prosecution case. Another
independent witness of the recovery
namely, Mohan has been withheld by the
prosecution. Although these two have been
said to be the independent witnesses of the
recovery however, admitted case of the
prosecution is that they have not signed the
recovery memo. No reason has been given
by the prosecution as to why these two
witnesses were not asked to sign the
recovery memo by the police party.
Coupled with the fact that PW-3 has denied
the incident at all and has been declared
hostile although the empty cartridges and
live cartridges as well as the country made
pistol have been recovered however, no
scientific evidence has been laid by the
prosecution to show that injury No.1 is a
firearm injury received by the injured. The
entire case of the prosecution is that the
accused-appellant fired at PW-1 and he
sustained a firearm injury however, the
very fact that injured PW-1 has sustained a
firearm injury could not be proved by the
prosecution
beyond
reasonable
doubt.
Coupled with the fact that independent
witnesses of recovery have not signed the
recovery memo. So much so that one of the
witnesses i.e. Mohan has been withheld by
the prosecution which calls for taking
adverse
interference
against
the
prosecution.

15. Apart from this, as per the
statement of PW-1, there are 200-300
persons present 24 hours at the bus stop.
The place is highly crowded and fire was
made by the accused by a country made
pistol of 12 bore from a distance of few
paces still no one from the public or from
the police party received any bullet injury.
According to statement of PW-2, at least
two fires were made by the accused but still
no one got injured. Coupled with the fact
that even after sustaining injury No.1, the
PW-1 conducted the search of the accused,
recovered the country made pistol etc. and
after preparing the recovery memo they
went to the police station along with
accused and all this time PW-1 was
bleeding and was examined at PHC at
09:00 pm by PW-5. The incident occurred
at 05:40 pm thus, for more than three hours
the injured was bleeding but still there is no
blood stained cloths of PW-1 neither there
is any recovery of blood stained soil.
766 INDIAN LAW REPORTS ALLAHABAD SERIES
Although, the normal course should have
been that first the injured would have taken
the medical treatment and thereafter, he
could have prepared the fard. This is not
the case according to the statement of PW-2
when the police party reached to arrest the
accused, he was found standing beside the
road near bus station then he says that he
was sitting in the zeep. Both the statements
are contradictory and do not inspire
confidence. The recovery made by the
Investigating Officer under Section 27 of
the
Evidence Act
does
not
inspire
confidence as although there were two
independent witnesses of the recovery.
None of them have signed on the recovery
memo. Coupled with the fact that one
witness Mohan has been withheld and other
witness i.e. PW-3 has turned hostile and has
denied the prosecution story at all. The
prosecution story that accused has caused a
firearm injury to the PW-1 also becomes
doubtful in view of the statement of the
doctor PW-5 who says that it is not possible
for him to tell the cause of injury No.1
sustained by PW-1. Coupled with the fact
that recovery memo does not bear the
signatures of two independent witnesses
and one independent witness has been
withheld and one who has been produced
as PW-3 has not supported the case of the
prosecution.

16. Learned trial court has convicted
the
appellant
without
discussing
the
evidence of PW-5, the doctor, who has
conducted the examination of the injured.
The statement of PW-5 has not been
discussed at all while giving the finding by
the learned trial court and straight away the
finding has been written that PW-1 has
suffered a firearm injury on his forehead.
There is nothing on the record to suggest
that prosecution has successfully proved
the fact that injury No.1 has been sustained
by PW-1 by a firearm. Prosecution has
failed to prove beyond reasonable doubt
that injury No.1 is a firearm injury. Once
the prosecution could not prove that injury
No.1 is a firearm injury, it was not open for
the learned court below to have convicted
the appellant under Section 307 IPC. It is
true that to sustain a conviction under
Section 307 IPC, it is not required that a
fatal injury capable of causing death could
have been inflicted. The court while
convicting the accused under Section 307
IPC has to see irrespective of the result of
the act of the accused, the act must have
been done with the intention or the
knowledge and under the circumstances
mentioned under Section 307 IPC. The said
Section 307 IPC reads as under:-

"307.
Attempt
to
murder.-
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 hereinbefore mentioned."

17. The first part of Section 307 IPC
provides that an act should be done by the
accused with such intention or knowledge
and under such circumstances if he by that
act caused death, he may not be guilty of
murder. The second part provides that if
hurt is caused in that process to a person by
such act, the offender shall be punished
either to life or such punishment as
mentioned in the first part of the section.

18. The evidence adduced by the
prosecution does not establish that the
12 All. Sushil Phari Vs. State of U.P.
767
injury sustained by PW-1 was caused by a
firearm or injury has been caused by the
appellant-accused. Coupled with the lack of
forensic evidence to prove that PW-1 has
sustained any firearm injury however, the
entire case of the prosecution is that
appellant has caused firearm injury to the
injured. The prosecution has failed to
establish first that it was a firearm injury
secondly that the injury has been caused by
the appellant. Coupled with the lack of
forensic evidence, this Court is not inclined
to hold the conviction of the appellant
under Section 307 IPC. The act on the part
of the accused itself has not been proved by
the prosecution and without recording any
finding on the statement of PW-5, the trial
court has straight way given the finding
that PW-1 has received firearm injury
which is erroneous and thus, the judgment
rendered by the trial court is liable to be set
aside.

19. In this case, the prosecution has
failed to prove beyond reasonable doubt
that injured sustained a firearm injury.
Coupled with the fact that recovery memo
becomes doubtful as in spite of the fact that
there were two independent witnesses
present in whose presence the recovery
memo was prepared there were not even
asked to sign the recovery memo and
before the court, one independent witness
PW-3 has denied the prosecution case and
the recovery memo and the second
independent witness has been withheld.

20. Coupled with the improbabilities
of the prosecution case as discussed above,
this Court is of the view that prosecution
has utterly failed to prove that injured
sustained any injury of firearm or the
accused had the intent or the knowledge of
causing death of PW-1. In fact, the entire
incident appears to be false. There is no
evidence at all adduced by the prosecution
to establish that there were any act done by
the accused or he has caused a gun shot
injury to the injured neither the injury
received by the PW-1 has been proved to
be a firearm injury. The entire case of the
prosecution hinges on the point that
accused has fired from some distance by a
12 bore country made pistol upon the
police party and one fire shot came on the
forehead of the PW-1. The statement of the
doctor
makes
the
prosecution
story
doubtful. The recovery memo is also
doubtful. PW-3 who is the independent
witness has denied the prosecution story at
all. Except the testimony of PW-1 and PW2 which are highly improbable there is
nothing on the record to show that PW-1
received firearm injury.

21. The Hon'ble Supreme Court in
catena of judgments has interpreted Section
307 IPC and has held that necessary
ingredients
must
be
proved by
the
prosecution for convicting the accused
under Section 307 IPC.

22. The Supreme Court in the case of
State of Madhya Pradesh vs. Imrat & Anr.
reported in [(2008) 11 SCC 523] has held
as under:-

"16. Whether there was intention
to kill or knowledge that death will be
caused is a question of fact and would
depend on the facts of a given case. The
circumstances that the injury inflicted by
the accused was simple or minor will not
by itself rule out application of Section 307
IPC."

23. In Manoj Kumar Soni vs. The
State of Madhya Pradesh (Criminal
Appeal
No.1030/2023)
and
another
connected matter has held as under:-
768 INDIAN LAW REPORTS ALLAHABAD SERIES

"25..................................The
statements of police witnesses would have
been acceptable, had they supported the
prosecution case, and if any other credible
evidence were brought on record. While the
recoveries made by the I.O. under Section
27, Evidence Act upon the disclosure
statements by Manoj, Kallu and the other
co-accused could be held to have led to
discovery of facts and may be admissible,
the same cannot be held to be credible in
view of the other evidence available on
record.

26. While property seizure memos
could have been a reliable piece of
evidence in support of Manoj's conviction,
what has transpired is that the seizure
witnesses turned hostile right from the word
'go'. The common version of all the seizure
witnesses, i.e., PWs 5, 6, 11 and 16, was
that they were made to sign the seizure
memos on the insistence of the 'daroga' and
that too, two of them had signed at the
police station. There is, thus, no scope to
rely on a part of the depositions of the said
PWs 5, 6, 11 and 16. Viewed thus, the
seizure loses credibility.

28. The testimony of the seizure
witnesses, we are inclined to the view, is the
only thread in the present case that could
tie together the loose garland, and without
it, the very seizure of stolen property stands
falsified.
We
cannot
overlook
the
significance of the circumstance that all
four independent seizure witnesses (PWs 5,
6, 11, and 16), who were allegedly present
during the seizure/recovery of the stolen
articles from Manoj's house, having turned
hostile and not support the prosecution
case, the standalone evidence of the I.O. on
seizure cannot be deemed either conclusive
or convincing; the recoveries made by him
under Section 27, Evidence Act must,
therefore, be rejected."

24. In State of Madhya Pradesh vs.
Kanha alias Omprakash reported in
[(2019) 3 SCC 605] has held as under:-

"12. In Jage Ram v State of
Haryana reported in [(2015) 11 SCC 366],
this Court held that to establish the
commission of an offence under Section
307, it is not essential that a fatal injury
capable of causing death should have been
inflicted:

"12.
For
the
purpose
of
conviction under Section 307 IPC, the
prosecution has to establish (i) the
intention to commit murder; and (ii) the act
done by the accused. The burden is on the
prosecution that the accused had attempted
to commit the murder of the prosecution
witness. Whether the accused person
intended to commit murder of another
person would depend upon the facts and
circumstances of each case. To justify a
conviction under Section 307 IPC, it is not
essential that fatal injury capable of
causing death should have been caused.
Although the nature of injury actually
caused may be of assistance in coming to a
finding as to the intention of the accused,
such intention may also be adduced from
other circumstances. The intention of the
accused is to be gathered from the
circumstances like the nature of the weapon
used, words used by the accused at the time
of the incident, motive of the accused, parts
of the body where the injury was caused
and the nature of injury and severity of the
blows given, etc."

13. The above judgments of this
Court lead us to the conclusion that proof of
grievous or life-threatening hurt is not a sine
qua non for the offence under Section 307 of the
Penal Code. The intention of the accused can
be ascertained (2015) 11 SCC 366 from the
actual injury, if any, as well as from
surrounding circumstances. Among other
12 All. Nooor Alam Vs. State of U.P.
769
things, the nature of the weapon used and the
severity of the blows inflicted can be considered
to infer intent."

25. In Sumersinbh Umedsinh Rajput vs.
State of Gujarat reported in [(2007) 13 SCC
83] has held as under:-

"7. Dr. Deepak Kumar examined
himself as PW-5. He in his evidence proved the
medical report. In his deposition for all intent
and purport, he conceded the deficiencies in the
prosecution case vis-`-vis the report prepared
by him, stating;

"It is true that I have written history in
certificate, that history was recorded in Yaadi. If
vest has hole then shirt worn on that should have
hole on it or if Bushirt is torn then shirt also
should have hole on it or Bushirt worn is found
torn. It is true that looking at trouser. I say that one
circle is made on it with pencil. That is not torn
with bullet. It is true that looking at the trouser I
say that, it is not entry cut. It is true that if vest has
hole then two holes should have found, one is
entry and other exit hole. Otherwise, in case of
scratch, vest is found in similar torn manner. It is
true that I have not mentioned fire arm's marks. It
is true that if any injury is caused with fire arm or
bullet then the edge has burn mark. In present
case no burn injury is found. It is true that if
shooter fires from point blank range then black
colour is found near wound. When I saw injury of
patient, it did not have such black mark on that.
Shirt had black mark. It is true that scratch mark
can occur due to rubbing on rough substance."

10. According to PW-8, he came to
know about the firing on hearing of sound of fire.
He had immediately put his finger in the trigger of
the revolver and caught the appellant from his
wrist. If the finger of the complainant himself was
on the trigger of the revolver, it is difficult to
believe that the appellant was responsible for the
act complained of. According to him, seizure took
place at the place of occurrence but panch
witnesses contradicted him as according to them,
they were made to sign the seizure list only at the
police station.......

14. Even assuming that PW-8
received a fire arm injury which in the facts and
circumstances of the case does not appear to be
plausible, having regard to the positive
evidence of the prosecution as has been stated
by PW-4 Neelabhai it seems certain that a
scuffle had ensued. A case of Section 307 of the
Indian Penal Code, therefore, has not been
made out. .........."

26. Thus, in peculiar facts of this case, this
Court is of the opinion that prosecution has failed
to prove its case beyond reasonable doubt. For the
reasons aforesaid, the judgment and order dated
03.01.2000 passed by Special/Additional Sessions
Judge, Rae Bareli in S.T. No.181 of 1998 and 182
of 1998 arising out of Case Crime No.255 of
1997, Police Station Bachhrawan, District Rae
Bareli is set aside.

26. Appeal stands allowed. Bail bonds, if
any, are discharged. Accused is set free.
----------
(2023) 12 ILRA 769
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Third Bail Application No.
53159 of 2021
With
Criminal Misc. Bail Application No. 14553 of
2022
With
Criminal Misc. Bail Application No. 49915 of
2022

Noor Alam ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant: