The Allahabad High Court while allowing the petition said that the mere use of lethal weapons is sufficient to invoke the provisions of Section 307 IPC.
A Single Bench of Justice Surendra Singh-I passed this order while hearing a Criminal Appeal filed by Kamal Singh.
The criminal appeal has been instituted against the order dated 02.09.1995 passed by the Additional Sessions Judge, Mathura in Sessions Trial (State vs Ratan Singh & others) arising out of Case under Sections 307 & 506 IPC Police station Farah, District Mathura.
By the impugned order the trial court convicted appellant Kamal Singh under Section 307 IPC and sentenced him to three years rigorous imprisonment. He was acquitted of the charge under section 506 IPC.
The prosecution story is that informant Shiv Singh s/o Than Singh r/o Mahuan, Police Station Farah submitted a written report dated 21.07.1990 in Police Station Farah, Mathura to the effect that he is a witness in the case relating to murder of Sohan Singh. On account of which residents of his village accused Ratan Singh s/o Pyare, Kamal Singh and Bharat Singh both sons of Ratan Singh have enmity with him. They have threatened him that if he gives evidence against them, he will be killed. In the intervening night of 20/21.07.1990 at about 12:00 pm, on the terrace of Rohan Singh s/o Jyoti of his village, informant Shiv Singh was having conversation with Rohan Singh. The above-mentioned accused came on the terrace and threatened him that he should desist from giving evidence against them otherwise he will repent later on. Informant Shiv Singh told them that he will give evidence of the facts which he has seen. Hearing this, accused Ratan Singh exhorted his sons Kamal Singh and Bharat Singh to kill the informant by firing.
On his exhortation, appellant Kamal Singh and Bharat Singh with the intention of causing death, fired two gunshots on the informant. The pellets from the bullet hit near the eyes of the informant Shiv Singh and on the chest of Rohan Singh. On alarm being raised by the informant and Rohan Singh, villagers Ram Hans s/o Netram, Soran s/o Nathiya, Man Singh s/o Ram Khiladi and Balram s/o Khachera reached at the place of occurrence. Accused ran away from the spot threatening the informant that today his life has been spared but on some-other day they will kill him.
Informant, Shiv Singh submitted his written report on 21.07.1990 at 06:15 am at Police Station Farah by which Case was registered under Section 307 and 506 IPC.
After committal of the case, on 03.07.1992 the Court framed charge under Sections 307/34 and 506 I.P.C against accused Ratan Singh, Kamal Singh and Bharat Singh, who denied the charge and claimed trial.
On 22.06.1994 the Court recorded the statement of the accused under Section 313 CrPC. They have denied the charge stating that the witnesses are giving false evidence against them. They have also stated that the injured have forged medical reports prepared and wrong charge-sheets have been submitted against them. The accused have further stated that due to village politics they were falsely implicated in a murder case which was earlier lodged against unknown accused.
It has been argued by the counsel for the accused-appellant that according to the prosecution version the incident took place on 20/21.07.1990 at 12 o’clock at night but no source of light is stated in the written report and the Investigating Officer has not shown source of light in his site plan. Therefore, it is not possible for the witnesses to recognize the appellant-accused in the dark night.
It has also been argued on behalf of the appellant-accused that according to the prosecution case, the accused-appellant Kamal Singh and co-accused Bharat Singh (since deceased) used firearm and caused injury to Shiv Singh and Rohan Singh but according to the injury report of Rohan Singh, the doctor has opined that the injury was caused by blunt object and is simple in nature. There is no supplementary medical report or x-ray report, therefore, firearm injury is not proved.
It has also been submitted that the police have not recovered from the place of occurrence of empty cartridges or any other article related to the incident. No weapon or other article was recovered from the possession or the pointing out of the appellant. The Investigating Officer has also not recovered blood stained soil or plain soil from the place of occurrence. Therefore, merely on the basis of oral evidence, charges against the accused are not proved.
Per contra, it has been argued by A.G.A for the state that the injury report of both injured Shiv Singh and Rohan Singh clearly mentions firearm injuries on their person. The opinion of the doctor regarding the nature of injuries is not conducive and not binding on the Court. No benefit to the accused appellant can be granted merely due to default on the part of the Investigating Officer in not seizing/recovering weapons of offence, Katta and used or unused cartridges from the custody of accused-appellant or from the place of occurrence.
From the analysis of the oral and documentary evidence on record it is concluded that the prosecution has proved beyond reasonable doubt that on the date, time and place of occurrence the accused-appellant Kamal Singh with co-accused with the intention to cause death, fired on Shiv Singh and Rohan Singh causing fatal injuries to them. The prosecution has proved beyond reasonable doubt charge under Section 307 I.P.C against the accused-appellant and the Trial Court has rightly convicted the appellant-accused under that section.
Counsel for the accused-appellant has also submitted that in case the appeal is not allowed against conviction then considering that incident took place more than 32 years back in the year 1990 and that the appellant-accused has no criminal antecedent to his credit or he has not involved in any other criminal activity, he may be released on probation.
A.G.A For the State has opposed the prayer of the accused-appellant being enlarged on probation and submitted that the appellant has committed an offence under Section 307 I.P.C which is punishable with life imprisonment, therefore, he is not entitled to the benefit of probation.
“Considering the facts and circumstances of the case and the fact that the appellant-accused had asked injured Shiv Singh not to give evidence in a case in which appellant-accused was undergoing trial for the murder of informant’s son Sohan and when informant Shiv Singh refused to do so, the accused-appellant Kamal Singh with co-accused fired on Shiv Singh and Rohan Singh by a country-made pistol causing injuries to them on their vital parts. There is no ground to release the appellant on probation.
Considering the facts and circumstances of the case, especially that more than 32 years have passed since the offence was committed and prosecution has not produced any criminal history of the appellant-accused, the period of sentence awarded to appellant accused is reduced from three years to two years rigorous imprisonment without modifying the fine imposed on him”, the Court observed while allowing the appeal.