- (1.) THE sole appellant Bhaggi, in the instant appeal, has challenged his conviction under section 307 I.P.C. with imposed sentence of five years RI imposed by Xth Additional Sessions Judge, Etah, recorded in S.T. No. 660 of 1978, State Vs. Bhaggi and others, P.S. Patiyali, District Etah, vide impugned judgment and order dated 25.5.1981.
(2.) ESCHEWING unnecessarily details and stated concisely, charge against the appellant was that, on 22.8.1977 at 4.30 p.m., in between agricultural fields of Kotwal Singh (P.W.1) and Suraj Pal situated in village Bhainsrasi, P.S. Patiyali, District Etah he had caused gun fire injury to Raja Ram(P.W.2) at the instigation of Chhutkan accompanied by two other accused Girija Shanker and Uma Shanker. Trial Judge held that only appellant was guilty and hence convicted him only while other three, Chhutkan, Girija Shanker and Uma Shanker, were acquitted by him by the impugned judgment. Raja Ram injured(P.W.2) was medically examined same day at 11 p.m. by Dr. Shiv Shanker Saraswat, PW4, vide his medical examination report, Ext.Ka-6, the contents of which are as follows:- "Examined Shri Raja Ram Singh S/o Shri Bhure Singh R/o Bhainsrasi, P.S. Patiyali, Distt. Etah on 22.8.77 at 11 p.m. B/B Shri Sughar Singh, constable No. 31 C.P., P.S. Patiyali. M.I.:- A raised black mole on the right Temporal region of face 2 cms away from the ear. Injuries:- 1. 15 Nos. of Gunshot lacerated wounds on the Anterior, medical & lateral aspects of lower 1/3rd portion of left thigh. All are wounds of entrance. No wound of exit seen. Size varies from 1-1/2 cm x 1cm x ? cm to 2-1/2 cm x 1-1/2 cm x ? cm. No charring seen. No pallet palpable. Blood clotted. Direction - From front- Inward forward & Backwards. X-ray advised to locate pallets and to ascertain any bony lesion. Report:- Injury is caused by some firearm and is about ? day old. The nature of injury shall be decided after X-ray report - referred to Distt. Hospital, Etah for X-ray & proper Treatment." Informant Kotwal Singh (PW 1) scribed the FIR,. Ext.Ka1, about the incident, went to the police station Patiyali district Etah and lodged it as crime no. 139 of 1977 u/s 307 IPC same day at 10.15 p.m. vide chik FIR Ext. Ka 4, and GD entry Ext. Ka 5, which were prepared by Pyare Lal, constable clerk. S.I. R.P. Tiwari commenced investigation into the crime but at the complaint made by informant it was transferred to S.I. H.S. Chandel P.W. 3., who interrogated Balveer Singh, conducted spot inspection and prepared site plan Ext. Ka-2 and thereafter recorded interrogatory statement of informant Kotwal Singh P.W.1, arrested the accused and recorded their statements. After returned of the injured Raja Ram(P.W.2) his interrogatory statement was recorded and thereafter concluding investigation, I.O. charge sheeted accused on 5.10.1977 vide Ext. Ka-3. Accused were summoned and finding their case triable by Session's Court, it was committed for trial to the Session's court where it was registered as S.T. No. 660 of 1977, State Vs. Bhaggi and others. Xth Additional Session's Judge, Etha, vide its order dated 3.9.1980, charged appellant Bhaggi under section 307 I.P.C. and rest of the accused under section 307/34 I.P.C. All the accused abjured those charges who claimed to be tried and, therefore, to establish the guilt, their prosecution commenced.
(3.) IN it's endeavour to prove the charges prosecution tendered oral evidences of four witnesses, out of whom, informant Kotwal Singh P.W. 1, injured Raja Ram P.W. 2 were the fact witnesses and I.O. H.S. Chandel P.W. 3 and Dr. Shiv Shanker Saraswat P.W. 4 were formal witnesses. Trial Judge after marshaling of facts, critically appreciating evidences, both documentary and oral, facts and circumstances of the case, held that so far as three of the accused Chhutkan, Girija Shanker and Uma Shanker were concerned, prosecution had failed to establish it's case against them beyond all reasonable doubt and, therefore acquitted them vide impugned judgment and order dated 25.5.1981. It however came to the conclusion that guilt of the appellant Baggi under section 307 I.P.C. simplicitor was established beyond any shadow of doubt and, therefore, convicted him for that charge and imposed sentence of five years RI, which conviction and sentence is now under challenge in the instant appeal. This appeal was listed for final hearing but nobody appeared to argue it for the appellant and hence Sri Vinay Saran, Advocate was appointed as Amicus Curiae to argue the appeal and assist the court. I have heard learned amicus curie for the appellant and learned AGA for the state and have perused trial court as well record of this appeal. Castigating the impugned judgment of conviction and sentence learned amicus curiae submitted that because of the existing enmity, appellant has been falsely implicated. Only two facts witnesses who were real brothers and had ample motive to falsely implicate the appellant were examined during trial and therefore neither P.W.1 nor P.W.2 are reliable witnesses and no authenticity can be attached to their testimonies. It is further submitted that the incident occurred in dark hours of the night and neither PW1 or 2 nor any other person could identify the accused assailants and only because of previous enmity and pending proceedings under section 107/116 Cr.P.C., that the appellant has been falsely implicated. Prosecution case is incredible and suffers from unconvincing testimonies which is indicated by the fact that the trial Judge disbelieved both the prosecution witnesses in respect of three acquitted accused and if prosecution witnesses can implicate three person they cannot be trusted solely for the appellant submitted learned amicus curie. By disbelieving P.W. 8 for other accused trial court had discredited their depositions and none of them can be bracketed as wholly reliable witnesses and no reliance can be placed on their statements contended learned counsel. It is next argued that motive for appellant's false implication was that prior to the present incident, sister of the appellant was enticed away by the informant and his associates regarding which a FIR was also lodged against injured Raja Ram P.W.2 and other accused from the appellant's side .Moreover 107/116 Cr.P.C. proceedings was already in vogue between contesting sides on the date of the incident, therefore, there was a motive to falsely implicate the appellant. Lastly, it is submitted that, in case, appellant Bhaggi is not given clean acquittal, since incident occurred more than three decades ago and appellant having no criminal proclivity and criminal history be sentenced to the minimum. It is next contended that in this case even if the entire prosecution version is accepted to be correct in toto, even then the charge under section 307 I.P.C. will not be made out against the appellant in absence of repetition of shot and causing of grievous injury. No X-ray or supplementary report was brought on record to establish that charge. According to the prosecution version, injured was taken to Kanpur for better management of his injuries but the prosecution did not tender any evidence in that respect and, therefore, suppressed a major part of the incident. It is next submitted that in such fact scenario, appellant could be convicted only under section 324 I.P.C. and not for an attempt to murder. Learned amicus curiae on the strength of above submissions contended that appellant's appeal be allowed by setting aside his conviction and sentence and he be acquitted of the charge.;