ZAKI ULLAH KHAN,J. - (1.) THE instant appeal has been preferred against the judgment and order dated 07.10.2009 passed by Additional Sessions Judge/F.T.C, Court No.3, convicting and sentencing the appellant ten years rigorous imprisonment under Section 307 I.P.C. together with a fine of Rs.2,000/ and in default of payment of fine, the appellant will have to undergo two months' additional imprisonment.
(2.) THE brief facts giving rise to the appeal are that a written report Ext. Ka 1 has been lodged by the complainant Smt. Manju at the police station Mahmoodabad disclosing that she is residing in the house built near Bismillah Shah Mazar Khetaura and she is running a sweet and tea shop in the same house; that on 07.03.2008 at about 4:00 p.m. the appellant came to her tea shop and demanded Samosha on credit; that her husband did not oblige him on the pretext that he was already in arrears, thereupon the appellant threatened him for dire consequences and went away; that on the intervening night of 07/08.03.2008 at about 1:00 a.m., the appellant along with three his companions came to the shop of complainant and tried to cause disturbance by rattling the shutter; that the complainant was sleeping at the terrace along with her husband and children; that hearing the noise of rattling the shutter, the complainant and her husband tried to peek from the terrace in the light of torch and enquired that why the appellant has come at the odd hours; that in the meantime the appellant along with his companions fired at her husband with intention to kill him and that resulted in firearm injuries all over his body; that when she raised alarm neighbours came for rescue but in the meantime appellant and his companions succeeded in running away; that the Chik F.I.R. Ext. Ka 4 was prepared on the basis of written report Ext.Ka 1, the description which has been made in G.D Ext. Ka 5; that during investigation on 08.03.2008 the investigating officer completed all formalities by collecting scattered samples of blood and bloodstained, scarf and prepared memo Ext. Ka 9; that the investigating officer also examined two torches used at the time of occurrence in locating the appellant and his companions and prepared the memo and thereafter the torches were handed over in custody of the complainant; that the investigating officer prepared site plan Ext.Ka 7; that the medical examination of the injured was conducted at C.H.C. Samudayik Health Centre at Mahmoodabad on 08.03.2008 at about 3:20 a.m. That the medical examination report is Ext. Ka 3 and the injured was referred to district Hospital, Sitapur for X ray; that Eye Specialist of KGMC, Lucknow examined the injured and submitted report Ext. Ka 6 and after investigation, charge sheet Ext.Ka 8 was submitted against the appellant; that after examining the prosecution witnesses, the court was of the opinion that the case is proved beyond all reasonable doubts and reached to the conclusion after going through the statements on oath of injured, complainant P.W.2, doctor P.W.3 and another doctor P.W.5 and Investigating Officer P.W.6 that the appellant caused injuries by using firearm with intention of causing death; that the trial court was not convinced with the defence plea that the case has been falsely instituted and injuries were self inflicted and accordingly sentenced the appellant for ten years rigorous imprisonment under Section 307 I.P.C. together with a fine of Rs.2000/ ; that aggrieved by the aforesaid order, the instant appeal has been preferred. Learned counsel for the appellant argued that nobody can believe that on trivial issue of demand of Samosa, the appellant will try to take revenge by using firearm. As per the prosecution version, at about 4:00 p.m. the appellant came to tea shop of the complainant and demanded Samosa on credit and when the injured did not oblige him he threatened and went away and thereafter he came with firearm to settle the score. Initially the incident was trivial in nature and there was no other enmity. Learned counsel for the appellant pointed out that there is contradiction in the testimony of the prosecution witnesses. P.W.2, who is the wife of the injured and complainant, narrated that her husband did not oblige him with Samosa and Jalebi on credit where initially in the written report the allegations were only regarding Samosa, therefore, the matter is far from reality and the entire incident took place in the pitch dark night. The assailants were not traceable. It is not possible that the complainant and her husband could have recognized the appellant in the pitch dark night where the only source of light was the torch and that has been introduced at the later stage in order to give colour to the occurrence. The testimony is also not worthy of reliance because the complainant was standing besides her husband and shots were fired from the ground towards the terrace and it is very strange that not a single pellet hit the complainant and all the pellets pierced inside the body of the injured and the complainant was spared. All these facts are far from reality. There is no other witness of fact except these two persons, although it has been alleged that number of persons from the neighbourhood gathered on alarm of the complainant. The complainant's husband was also on inimical terms with other persons of the village. P.W.1 injured admitted this fact in his statement on oath that Sitaram's son Manohar and Sagar are on inimical terms and an incident took place before this incident and which is still pending before the Fast Track Court for adjudication. He was also inimical with Suresh and Radheyshaym, therefore, in the pitch dark night the appellant alone cannot be held responsible for the injuries suffered by the complainant's husband. The appellant has also apprised the court about the reason why he has been implicated falsely.
(3.) IN this regard, learned counsel for the appellant cited a judgment of the Apex Court in Dhian Singh vs. State of Punjab, reported in [(1997) SCC (Cri) 634. On the basis of citation it is crystal clear that when there were four persons how can appellant alone be held guilty for intention to kill. At the most, it can be presumed that intention shared by the appellant with the other assailants was to extent of causing hurt to the injured but there was no intention to inflict injury with intention to kill. Learned counsel for the appellant also cited a judgment of the Apex Court in A. Shankar vs. State of Kartanaka, reported in [(2011) 6 SCC 279] in which the Apex Court has laid down the ratio regarding identity of the accused, motive and weapon used in commission of crime. Learned counsel pointed out that the Apex Court has held in para 6 of the aforesaid judgment as follows: "6. Learned counsel appearing for the appellant has submitted that the High Court has committed an error in interfering with the well reasoned judgment of acquittal by the trial court and relying upon the evidence on record while ignoring the material inconsistencies between the evidence of the witnesses; and medical and ocular evidence. No motive was proved by the prosecution to commit the offence. There had been an inordinate delay of 4 hours in lodging the F.I.R. as the murder was alleged to have been committed at 2 a.m. While the complaint was lodged at 6 a.m. on the same day, though the police station was at a distance of only one kilometre. There had been discrepancy relating to the seizure and kind of weapon used in the offence. Therefore, the appeal deserves to be allowed. ;