The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.762 of 2012 (Against the Judgment of conviction and order of sentence both dated 16.05.2012, passed by District and Sessions Judge-I, Sahibganj, in Sessions Case No.253 of 2006). Bishambhar Yadav @ Bishambar Yadav Appellant Versus Respondent The State of Jharkhand. ….. P R E S E N T HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ….. Ms. Sugandha Khalkho, Amicus Curiae Ms. Vandana Bharti, APP ….. For the Appellant For the State : : By Court:- Heard learned Amicus Curiae for the appellant and learned 1. 2. 3. 4. 5. counsel for the State. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence both dated 16.05.2012, passed by District and Sessions Judge-I, Sahibganj, in Sessions Case No.253 of 2006, whereby the sole appellant has been convicted for the offence under Section 307 IPC and under Section 27 of the Arms Act.
Facts
As per the FIR which is the written report of the injured, Niranjan Yadav, it is alleged that on 13.10.2005 in the morning at 8:30 am, when he was going from his home to Sahibganj to deliver milk in the market, appellant/accused [Bishambhar Yadav) opened fire on him from rear side as a result, he sustained injury near his eye and left hand. On the basis of written report, FIR being Sahibganj (T) P.S. Case No.156 of 2005 was registered on the same day under Sections 307/ 324 IPC and under Section 27 of the Arms Act against the appellant/accused. Police after investigation found the case to be true and submitted charge-sheet against the appellant. Thereafter the appellant/accused was put on trial under Section 307 of the IPC and Section 27 of the Arms Act. Altogether six witnesses were examined and the relevant documents including the injury report were adduced into evidence and marked as Exhibits. The impugned judgment of conviction and sentence has been assailed on the ground that the injured sustained simple injury as per the injury report and, therefore, the offence under Section 307 IPC will not be made out. No independent witness has supported the case of prosecution. P.W.2 and P.W.3 1 6. 7. 8. were declared hostile whereas P.W.4 and P.W.5 were tendered by the prosecution. It is submitted that the prosecution case rests upon the solitary account of P.W.1 (informant of the case) whose testimony suffers from material contradictions. None of the local witness has been examined in this case. Genesis of the offence has not been stated and there is no reference of past enmity. Learned APP for the State has defended the impugned judgment of conviction and sentence.
Legal Reasoning
Having considered the submissions advanced on behalf of both the sides, it is evident that the FIR was lodged promptly on the same day of the incidence. It has been deposed by the P.W.1, the solitary independent witness that while he was going to market with milk, he was fired upon by one Vishambhar Yadav from a distance of 10 feet resulting in injury on his left eye, and hand and he immediately rushed to the Town Police Station from where he was referred for treatment to the Hospital. Further, in his cross-examination, he has deposed that he had no past enmity with said Vishambhar Yadav. Firing had been resorted from the rear side and on the sound of firing, no one came to his rescue. At that time he was riding on a bicycle and he fell down from it. 9. Evidence of the informant/injured is corroborated by medical evidence. There was no delay in his examination by the Doctor as on the very same day he was medically examined in the Govt Hospital at Sahibganj. The Doctor who has been examined as P.W.6 has deposed that on 13.10.2005, he was posted at Sahibganj Sadar Hospital and he examined the informant (Niranjan Yadav) at about 11 a.m. and found the following injuries :- (i) Both eyes, eyelids, face left side, left forearm and lower portion of arms along with left hand and its dorsum and right forearms, lower portion, multiple tiny black spots with slight swelling were found; Left eye- 03 black foreign bodies over cornea along with sub conjunctiva, blood clots congestion vision of left eye diminished slightly. Opinion was reserved and after obtaining report, he gave opinion that nature of injury to be simple caused by fire arm. He proved the injury report as Ext. 2 and 2/1. (ii) 10. Law is settled that testimony of injured witness should not be brushed aside lightly, unless there is some material to create reasonable doubt over the veracity of his account. Prompt reporting of the case, followed by medical examination are additional factors that lends credence to the testimony of the informant in the present case. In any case appreciation of evidence does not proceed in vacuum and oral evidence is to be considered in the background 2 of the attending circumstance of the case. Motive for committing a particular offence is not relevant for consideration in a criminal case, save and except to some extent in cases based on proof of fact on circumstantial evidence. In the present case there is no material evidence whatsoever to draw an inference that the informant was actuated by any extraneous reason to falsely implicate the accused. Once, the testimony of the informant has remained unimpeached and is found to be wholly reliable, there cannot be any reason to disbelieve his account only on account of absence of motive. 11. It has been argued that no person of the locality has been examined to corroborate the testimony of the injured. Factual social reality cannot be overlooked, where common man in many cases are not willing and ready to become a witness and stand for truth, out of fear to incur the wrath of the lawbreaker. Section 134 of the Evidence Act does not insist upon plurality of witness for prove of a fact. What is important is the quality of evidence and not their numbers. There is further action, strangers to get involved in the act quickly process by becoming a witness to an incidence. Law is set succinctly in Rajesh Yadav and Anr. Vs State of U.P. 2022 SCC On Line 150 “ We have already indicated different classification of evidence. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the celebrated decision of this Court in Vadivelu Thevar v. State of Madras, 1957 SCR 981: In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that “no particular number of witnesses shall in any case, be required for the proof of any fact”. The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence — 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that “Evidence has to be weighed and not counted”. 12. For the reasons as discussed above, this court is of the view that reliance can be placed on the testimony of the injured witness. Nothing on record to show that non-examination of the Investigating Officer caused prejudice to the defence. 13. Main point for determination is whether the offence under section 307 of the IPC for an attempt to commit murder is proved on the facts as proved by the prosecution. 3 14. An act will amount to an attempt to murder if the act is such that if it is not prevented or intercepted, it would be sufficient to cause the death of the victim. To constitute this offence, no injury need be established in all cases. In cases of attempt on the life by firearm, there may be cases where the firing misses the target, and no injury is caused. In such cases insistence on injury will not be justified. Where the injury has been sustained, the nature of it becomes relevant to determine the intention or knowledge of the assailant. What is important is that, the intention or knowledge of the accused must be such as is necessary to constitute murder. Secondly, it is necessary that the act should have been done. 15. In the present case informant had a providential escape from the firing which just grazed his temple region and had fortuitous escape from the fatal shot with simple injury as noted above. There can be no presumption that the accused intended to cause the death of the informant merely because he used the firearm to cause him hurt. Intention is to be gathered from the nature of injury caused and the weapon by which it is inflicted and also the part of the body where the injury was caused. The accused must be presumed to intend the natural consequences of his act. Had the injuries been sustained in non- vital part of the body, but only on any of the limb than it would have been a case under Section 324 of the IPC. The appellant had taken the penultimate step in committing the murder of the informant and it was only a fortuitous circumstance that the bullet did not find the intended target and caused only simple injury. In Shanabhai Dhulabhai Parmar v. State of Gujarat, (1977) 1 SCC 454 the shot which was fired by the appellant hit the victim Ambalal in the middle of the left upper arm which would be only a few inches away from the vital part of the body, namely, the heart, Hon’ble the Supreme Court maintained the conviction of the appellant under Section 307 of the IPC. Under the circumstance charge under section 307 of the IPC and Section 27 of the Arms Act is proved beyond the shadow of all reasonable and probable doubt. The judgement of conviction is accordingly affirmed. On the point of sentence, there is no past conviction proved against the appellant. In the absence of any past enmity or any aggravating circumstance, a sentence of rigorous imprisonment for three years and a fine of ₹ 5000 under Section 307 of the IPC and Section 27 of the Arms Act shall meet the ends of justice. In case of default of payment of fine SI of two months. Substantive sentences to run concurrently. 4 Bail of the appellant is cancelled and he is directed to surrender before the learned court below to serve remaining part of the sentence. Appeal is dismissed with modification of sentence. Learned Member Secretary, JHALSA, Ranchi is directed to pay the amount of Rs.5,000/- to the Amicus Curaie at the earliest for the legal services rendered in assisting this Court on behalf of the Appellant. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 10.04.2024. sandeep/ 5