- (1.) B. K. Sharma, J. This is a criminal appeal against the judgment and order, dated 19-3-1980 passed by Shri Jaswant Singh, the then IIIrd Addl. Sessions Judge, Bijnor, in Sessions Trial No. 137 of 1979, State v. Lakpat Singh, under Sections 147, 148, 307/149, IPC, Police Station Haldaur, dis trict Bijnor, whereby he convicted the accused appellant Jagdish Singh of the offence under Section 307, IPC and pay a fine of Rs. 500 and in default of payment of fine to undergo further R. I. for three months.
(2.) HEARD learned counsel for the appellant and the learned Addl. Government Advocate. The FIR of this case was lodged by Mathura Singh informant, father of Km. Navnita injured, against the present accused-appellants and five other persons, namely Kalyan Singh, Lakhpat Singh, Raghunath Singh, Shiv Charan Singh and Nirmal Singh. The allegations in the FIR were that there was entity of litigation with the accused persons, that on 21-1-1979 at 10 a. m. he (informant) was taking food in the verandah of his house and his daughter Km. Navnita, aged about six years, was sitting near him, that all the six accused persons aforesaid came on the roofs of their cousins armed with fire-arms and Lathis and retorted acting in concert "aaj SALA AKELA PHAS GAYA HAI JAN SE MAR DO", that then Jagdish Singh accused- appellant fired at him with an intention to take his life; that he atonce sat down and consequently the pellets of fire struck Km. Navnita. It was further alleged that on the witnesses raising an alarm and challenging the accused persons, they ran away. She (Km. Navnita injured) was got medically examined on 21-1-1979 at 1 p. m. from Dr. Jagdish Prasad Srivastava (PW 3), Medical officer (Surgeo), district Hospital, Bijnor at that time. He recorded the following injuries on her person: "injury-multiple gun shot wounds starting from right side neck to right side chest, posterior lateral aspect, right upper extending outer and posterior side in scattered position in an area of 42 cm. X20 cm. each 1/8 cm. X1/8 cm. Xmuscle. No blackening scorching. " "duration of the injury was fresh. All the wounds were wounds of entry. Patient was facing difficulty in breathing. The patient condition was not satisfactory. The injury was kept under observation. The injuries were caused by projection dis charge from fire-arm. " The informant thereafter went to police station Kotwali City, Distt. Bijnor and lodged the FIR there at 4 p. m. on the same day against the said accused persons, on the basis of which the case was registered under Sections 147, 148, 307, IPC and after investigation the Investigating Officer submitted the charge sheet against the present accused-appellant and four others, namely Lakhpot Singh, Raghunath Singh, Nirmal Singh and Shiv Charan Singh. After committal to the Court of Sessions, all the five accused were charged and tried for the said offences. The learned IIIrd Addl. Sessions Judge, Bijnor acquitted all of them except the present accused-appellant Jagdish Singh whom be convicted for the offence under Section 307, IPC and sentenced Jim as aforesaid. He acquitted the said four co-accused on the grounds that. Km. Navnita injured did not name them in her statement, that it was accused Jagdish Singh who fired a shot and that she received injuries from that shot and that there was no other person except accused Jagdish Singh. The learned Sessions Judge also discarded the evidence of the eye-witness Devi Singh (PW) stating that in view of the statement of Km. Navnita PW 2 his statement has got no (not) much value. He placed reliance on the testimony of Km. Navnita injured. He observed that in view of the state ment of Km. Navnita PW 2, the whole can be was confined to accused Jagdish Singh only and to no other person. He further observed that the informant named the other accused persons in the FIR on account of admitted enmity and Partisan in the village but this was no ground to reject his version for the reason that enmity was admitted to the complainant himself. Learned counsel for the accused-appellant has pointed out to the number and location of the fire-arm injuries on the person of Km. Navnita and also the unquestioned opinion of the Medical Officer, Dr. Jagdish Prasad Srivastava (PW 3) that her injuries were on the front and back sides both, which could be cause two or more fires. In reply to a court question, he stated that it is not possible that if the victim is standing obliquely he may receive both (is all) the injuries by a single fire. Learned counsel for the appellant further pointed out that in the FIR the allegation was hat only a single fire-arm was shot and its pellets struck the injured. He also pointed out that even at the trial the prosecution evidence was that only one shot was fired and that one shot hit the injured Km. Navinta. He argued that this evidence is totally inconsistent with the medical evidence, according to which the injuries of the victim Km. Navnita were result of two or more shots being fired. The argument of the learned counsel for the appellant has a great weight. There is a glaring inconsistency between the oral evidence led by the prosecution and the medical evidence. Informant Mathura Singh claimed, in his examination-in-chief that Jagdish accused appellant fired at him, whose pellets struck Km. Navnita. He did not men tion about any other shot fired by him or by any co-accused. In his cross-examination he started saying that three fires were made by the accused persons. He, however, added that the pellets of only one shot struck Ken. Navnita and the other two shots missed. He further stated that in the FIR he had narrated about one fire by Jagdish and one each by Raghunath Singh and Lakhpat Singh and he stated that he mentioned about only that fire-arm shot that (actually) stuck Km. Mavnita. Then he claimed that he stated about all the three fires to the Investigating officer but he could not explain as to why this was not recorded by the Investigating Officer in his statement under Section 161, Crpc. Obviously these last sentences stated by him were an improvement over his original version. But even this improvement indicates that his claim was the shot of only one fire struck the victim and this claim was belied by the medical evidence. Km. Navita (PW 2) was a child witness and in her statement she categorically stated that only one shot was fired. Devi Singh (PW 4) also similarly stated that Jagdish accused-appellant fired a shot on Mathura, on whieh the 'cheekh' of Km. Navnita was heard and that after that Raghunath and Lakhpat also fired one shot each. He, however, die not say that the fires of these persons also struck Kmt. Navnita. In his cross-examination it was reveal ed that he had told the I. O. that after some time Jitendra, son of Ram Chandra Singh, came to the house of Mathura Singh and went on the roof. and fired with Tamancha towards the house of Kalyan Singh and that on hearing the sound of fire Mathura Singh went on the roof and brought down Jitendra, though he resiled from the same. This was something which was not stated by the complainant Mathura Singh (PW 1) in his testimony or by injured Km. Navnita in her statement. The learned Sessions Judge, no doubt, claimed to be shifting the grain from the chaff. But in this case since the statement of Km. Navnita was belied by medical evidence, there was no justification for accepting her testimony for convicting the accused-appellant. In fact it has been elicited from Km. Navnita in her statement in court that her father Mathura Singh (PW 1) had brought her to court and had been tutoring her in the way. She admitted that her father had come with her and then in reply to a question whether he was telling her as to who fired the shot her reply was in the affirmative. In view of this statement, no importance should have been attached to the nomination of the accused-appellant Jagdish Singh by her in her testimony. On the prosecution case itself there was litigation enmity going on between the accused persons named in the FIR and the complainant Mathura Singh (PW 1 ). So on the scrutiny of evidence it is quite obvious that in the circumstances under which more than one shots were received by Km. Navnita, aged about six years it could not be seen by her or by the informant Mathura Singh or by other witnesses as to who were the assailants and how many shots had been fired. It was simply a guess work in the FIR as to who were the assailants and again it was by guess work only that to was stated in the FIR that only one shot was fired.
(3.) IN view of the above discussion, this appeal ought to be allowed and the accused-appellant Jagdish Singh must be given the benefit of doubt and acquitted. The appeal is accordingly allowed. The conviction of the accused appellant Jagdish Singh is set aside and he is acquitted of the offence under Section 307, IPC. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.;