BHAGWATI, J. - (1.) THIS Criminal appeal is directed against the conviction and order of sentence dated 13th of July 1988 passed by the Sessions Judge, Dungarpur whereby the learned Sessions Judge has convicted the accused appellants, namely Nandlal, Motilal and Bakshi in the offences under section 148, 189, 307, 307/149, 353/149 of Indian Penal Code and Section 42 (1) of Forest Act and sentenced them as under :- Sentence 1. Nand Lal 353/149 IPc 2 years' Rigorous imprisonment and a fine of Rs. 100/-, in default 2 1/2 months' Simple imprisonment. 148 IPc 2 years' R. I. and a fine of Rs. 500/-,in default 2 1/2 months' S. I. 189 IPc 2 years' R. I. and a fine of Rs. 500/-, in default of payment of fine 21/2 months' S. I. 307, 307/147 IPc 10 years' R. I. and a fine of Rs. 2,000/-, in default 10 months' S. I. 42 (1) Forest Act Three months' S. I. and a fine of Rs. 100/- , in default 15 days' S. I. 2. Moti Lal -do- -do- 3.Bakshi -do- -do-
(2.) THE factual matrix of the prosecution case as narrated in the FIR Ex. P/8 is that on 11th of February, 1983 at about 10. 30 PM PW/7 Surya Singh , Forester, came to the complainant PW/3 Kartikeshwar on motor cycle and told that two trucks loaded with Sagwan timber were to reach at the barrier, who were not having any pass or transit permit to carry the same. PW/7 Surya Singh, when apprising the complainant Kartikeshwar , just thereafter, 8- 9 persons armed with deadly weapons like that of clubs and arms, entered the check post and asked him to let both the trucks go. THEy also told him that whatever money they wanted to take they could take, but they should lift the barrier. THE complainant replied that the trucks could not be allowed to move, if they do not have any pass or transit permit with them. Enraged with the reply of the complainant, one unknown person armed with revolver, aimed his head and threatened that if he did not lift the barrier, he would kill him. Meantime, rest of the other persons surrounded him and threatened his life. THE accused appellant Nand Lal fired a gun shot, with an intention to kill him, but the bullet did not hit him and passed through. When these persons were going to unlock the barrier, Dilip Singh stopped them. THEreupon the accused appellant Moti Lal assaulted him with a knife but he missed the object and the thrust of knife rested on the pillar of barrier. It is also alleged that rest of the accused persons broke out the lock and then succeeded in lifting the barrier and taking away both the trucks, without any pass or transmit permit. THE complainant PW/3 Kartikeshwar submitted a written report in the police Station, Mithauwa , upon which first information report Ex. P/8 was registered by the police and investigation commenced. During the course of investigation, the investigating officer recorded the statements of witnesses acquainted with the facts and circumstances of this case under section 161 of Cr. P. C. , prepared the site plan Ex. P/2, seized the lock from the place of occurrence vide memo Ex. P/3 and after usual investigation, the Officer Incharge of Police Station Mithauwa, filed the police report in the court of Judicial Magistrate, Dungarpur, who in turn committed the same for trial to the court of Sessions. The accused persons were charged with the offences under section 148, 307, 307/149, 353/149 and 189/149 IPC and Section 42 (1) of Forest Act. The charges were read to the accused, who denied the guilt and claimed trial. The prosecution has examined only 9 witnesses, namely, PW/1 Lakhma, PW/2 Durga Shankar, PW/3 Kartikeshwar, PW/4 Dilip Singh, PW/5 Phool Chand, PW/6 Jeetmal Jain, PW/7 Surya Singh, PW/8 Pratap Singh and PW/9 Gordhan Lal to prove the offences against the accused persons. The accused persons have not adduced any evidence in defence. Heard the arguments of Mr. Manish Shishodia, learned counsel appearing for the accused appellants, Mr. JPS Choudhary, learned Public Prosecutor appearing for the State, perused the relevant material and prosecution evidence available on record.
(3.) THE learned counsel for the appellants has argued that the occurrence took place at 10. 30 PM of 11th February, 1983 whereas the FIR has been lodged by the Forester Kartikeshwar with the delay of approximately 12 hours, on 12th of February, 1988 at 10. 00 AM. THE prosecution has not given any reasonable and satisfactory explanation of this delay, which under the facts and circumstances of the case, can be said to be fatal to the prosecution. The main thrust of argument of the learned counsel for the accused appellants is that no recovery of any weapon or gun, has been made by the police in this case. Nor any injury has been found on the person of Dilip Singh and Kartikeshwar. The police has seized only one broken lock from the site of occurrence in this case. There is no evidence available on record which can link the accused appellants with the commission of the offence. PW/1 Lakhma who is an employee of Forest Department , has not supported the prosecution case and has turned hostile. PW/2 Durga Shankar is said to have handed over the lock to police which has been seized vide Ex. P/3 in his presence. Mr. Shishodia has further argued that though PW/7 Surya Singh has not been declared hostile, but he has not supported the prosecution case also. The statements of PW/2 Durga Shankar PW/4 Dilip Singh and PW/7 Surya Singh are not such, which can emit any ray with regard to the commission of offence under section 307 IPC. The entire prosecution case suggests, either no offence has been committed by the accused appellants and they have been falsely implicated therein, or there has been simple altercation between these two, of which a mountain has been made. Mr. Shishodia submits that no offence is proved against the accused appellants, as such they deserve to be acquitted of the charges. Per contra, Mr. JPS Choudhary , learned Public Prosecutor appearing for the State has argued that for the purpose of Section 307 IPC, what is material is the intention or the knowledge and not the consequence of the act termed for the purpose of carrying out the intention. While placing reliance on the judgment of Hon'ble Supreme Court, cited in the case of Prakash Chandra Yadav vs. State of Bihar & Ors (2008 Crl. L. J. 438) he has argued that for the proof of the commission of an offence under section 307 IPC the receipt of any injury on the part of the victim is not a pre-requisite condition. Even if the accused has fired a shot, pointing the victim and somehow the victim narrowly escapes, it could be gathered from these circumstances that the accused had an intention to kill him, or he had the knowledge that if the bullet hits the victim, he will be killed. Mr. Choudhary has further submitted that the lower court has properly appreciated the evidence of the prosecution and arrived at a right finding, convicting the accused appellants in the aforesaid offences. ;