Mahendra Kumar And Another vs State Of U.P.

1. This appeal has been filed by the appellants against the judgment and order dated 30.05.1983 passed by the learned Additional Sessions Judge, Kanpur, in Criminal Sessions Trial No. 220 of 1982, whereby accused Mahendra Kumar was convicted under Section 307 I.P.C. and accused Surendra Kumar under Section 307/34 I.P.C., and both were sentenced to undergo rigorous imprisonment for five years.

2. Heard Ajay Kumar Pandey, learned counsel for the appellants and Sri Rahul Asthana, learned A.G.A. for the State.

3. According to the prosecution case, the informant submitted a written report at Police Station- Ghatampur, District- Kanpur Nagar stating therein that on 28.05.1982, he had gone to inspect his field where Mahendra Kumar and Surendra Kumar alias Pudai came there. The accused persons demanded money from the informant, whereupon he replied that he had already paid the amount earlier. Upon this, the accused persons started abusing him. Hearing the altercation, Gokul Prasad, Ram Narayan, Rakesh and others came on the spot. Thereafter, accused Surendra exhorted the Mahendra Kumar, saying that if the informant was unwilling to pay the money, he should be done away with. Upon such exhortation, accused Mahendra Kumar took out a country-made pistol from the pocket of his Pyjama and fired at the chest of informant with intention to kill him. The pellets struck the informant on his chest. The occurrence took place at about 6:00 p.m. after which the accused fled away towards the southern side of the village.

4. On the basis of the written report, first information report was registered and corresponding General Diary entries were made. Investigation of the case was commenced. The injured was medically examined. The Investigating Officer visited the place of occurrence and prepared the site plan and after completion of investigation, charge-sheet was submitted against the accused persons under Section 307 read with section 34 I.P.C.

5. Charges were framed against the accused persons. They pleaded not guilty and claimed trial.

6. In order to prove its case the prosecution examined P.W.-1 Satya Narayan, P.W.-2 Gokul Prasad, P.W.-3 Head Constable Laxmi Narayan, P.W.-4 Dr. A.K. Omar, P.W.-5 Sub Inspector Lal Singh Yadav.

7. In their statements recorded under Section 313 Cr.P.C., the accused persons denied the allegations and claimed false implication. They stated that they had participated in the alleged incident and that the complainant might have sustained injuries in some other manner.

8. After hearing the arguments advanced by both the parties and appreciation of the entire oral and documentary evidences on record, the learned trial court found the accused persons guilty of the offence punishable under Section 307 read with Section 34 I.P.C. and convicted the accused persons and sentenced them to undergo five years of rigorous imprisonment.

9. Feeling aggrieved by the judgment and order of conviction and sentence, the accused persons preferred the present appeal on the ground that the conviction of the appellants are against the weight of evidence on record and bad in law. The sentence imposed on appellants is too severe. Various grounds have been taken in the memorandum of appeal challenging the findings recorded by the trial court.

10. On the other hand, learned A.G.A. appearing for the State supported the judgment of conviction and sentence and argued that sufficient evidence was available on record proving that the accused persons had caused firearm injuries to the complainant with the intention to commit his murder.

11. At the time of hearing of appeal, learned counsel appearing on behalf of the appellants submitted that the incident pertains to the year 1982 and more than 40 years have elapsed since the occurrence. It was further submitted that the appellants have now become old and infirm. Accused Mahendra Kumar who was about 40 years of age at the time of occurrence, is presently more than 80 years old, whereas accused Surendra Kumar was about 23 years old at the time of incident and is now about 65 years of age and a senior citizen. Learned counsel for the appellants, therefore, submitted that he does not wish to press the appeal on merits of conviction but prayed that the sentence of imprisonment awarded by learned trial court be suitably modified considering the advanced age of the appellants, the long lapse of time since the occurrence and the overall facts and circumstances of the case.

12. In the light of arguments, this Court considered the oral and documentary evidences available on record, P.W.-1 Satya Narayan, the injured complainant and P.W.-2 Gokul Prasad, the eye-witnesses fully supported the prosecution case. Both witnesses deposed that the accused persons demanded money from the complainant and upon his refusal on the ground that payment had already been made, they started abusing him. They further stated that on exhortation made by accused Surendra, accused Mahendra Kumar fired at the complainant with a country-made pistol with intention to kill him. P.W.-1 the complainant identified his writing and signature on the written report and proved the same as Ext. Ka-1.

13. P.W.-3 Head Constable Laxmi narayan proved registration of chik FIR and the carbon copy of G.D. were proved as Ext. Ka-5 and Ka-6 respectively.

14. P.W.-4 Dr. A.K. Omar stated that he medically examined the injured on 29.05.1982 as U.H.M. Hospital. He found two firearm injuries on the body of the injured. According to the P.W.-4 Dr. A.K. Omar, the injuries could have been caused by firearm. The medical examination report was proved as Ext. Ka-7. During cross-examination, he stated that he could not say whether the injuries were superficial in nature because the patient had been kept under observation. Upon examining the X-ray plate, P.W.-4 Dr. Omar further stated that no pellet had entered any vital organ internally.

15. P.W.-5 Investigating Officer Sub Inspector Lal Singh Yadav, stated that he conducted investigation of the case, prepared the site plan of the place of occurrence and after completion of investigation, submitted charge-sheet against the accused persons.

16. Upon re-appreciation of the entire oral and documentary evidence available on record, this Court finds that the first information report in the present case was lodged promptly and without undue delay immediately after the occurrence, which lends assurance to the prosecution version. The allegations regarding firing upon the informant by accused Mahendra Kumar by means of a country-made pistol have been consistently supported by the testimony of injured witness P.W.-1 Satya Narayan and P.W.-2 Gokul Prasad. Their testimonies are natural, trustworthy and inspire confidence. The medical evidence also substantially corroborates the prosecution case. P.W.-4 Dr. A.K. Omar found firearm injuries on the chest of the injured. The Investigating Officer P.W.-5 Lal Singh Yadav, after conducting full investigation also found sufficient material against the accused person and accordingly submitted charge-sheet.

17. Thus, from the evidence on record, it stands established that on the date, time and place of occurrence, the accused persons caused firearm injuries to the informant.

18. However, the question which requires consideration is whether the act attributed to the accused would amount to an offence punishable under Section 307 I.P.C. or whether the offence would fall within the ambit of Section 324 I.P.C. Section 307 reads as under:-

307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. llustrations.

19. For constituting an offence under section 307 I.P.C., the prosecution requires to establish not merely the causing of injury but the existence of intention or knowledge to cause death coupled with an overt act towards commission of murder. Nature of injuries, weapon used, part of body targeted, severity of attack and surrounding circumstances are all relevant considerations for determining intention.

20. Upon careful scrutiny of the evidence in the present case, it appears that only a single shot was fired by the accused persons. No repeated firing was made thereafter. The medical evidence further reveals that though firearm injuries were found on the chest region, no pellet had penetrated internally into any vital organ. P.W.-4 Dr. A.K. Omar specifically stated that no pellet had entered any vital part of the body. The injuries were also kept under observation and no definite opinion regarding grievous nature of injury, which can be dangerous to life was given.

21. It is also noteworthy that the injured was never admitted in the hospital even for a single day after the incident. The F.I.R. was lodged promptly by the injured himself, while remaining fully conscious and mentally fit. There is no evidence on record showing that the injured ever became unconscious or that his condition was life threatening at any stage.

22. In these circumstances, although prosecution has successfully established that firearm injuries caused to the informant, the ingredients necessary to sustain conviction under Section 307 I.P.C. are not fully established beyond reasonable doubt. The facts and circumstances of the case indicate that the offence would more appropriately fall within the ambit of Section 324 I.P.C. relating to voluntarily causing hurt by dangerous weapon or means. Section 324 I.P.C. reads as under :- " Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

23. The Hon'ble Supreme Court in Sarju Prasad Vs. State of Bihar, AIR 1965 SC 843, held that the mere fact that injury was caused by a dangerous weapon is not by itself sufficient to attract Section 307 I.P.C. unless intention or knowledge to commit murder is clearly established.

24. Similarly in Hari Singh Vs. Sukhbir Singh, 1988 (4) SCC 551, the Hon'ble Supreme Court observed that nature of injury, circumstances of the occurrence and intention of the accused are decisive factors while determining the applicability of Section 307 I.P.C.

25. Considering the entire facts and circumstances, particularly the fact that only one shot was fired, no grievous or life threatening injury was proved and more than four decades have elapsed since the occurrence, this Court is of the considered opinion that conviction of the appellants under Section 307 I.P.C. cannot be sustained.

26. Accordingly, while maintaining the finding of guilt recorded by the trial court, the conviction and sentence of the appellants under Section 307/34 I.P.C. are set aside. The appellants, namely Mahendra Kumar and Surendra Kumar are convicted for offence under Section 324 read with Section 34 I.P.C.

27. Having regard to the advanced age of the appellants, long passage of time since the incident of the year 1982, and the over all facts and circumstances of the case, this Court deems it appropriate to sentence the appellants only with fine.

28. Accordingly, the appellants are sentenced to pay a fine of Rs.5000/- each for the offence punishable under Section 324 I.P.C. In default of payment of fine they shall undergo simple imprisonment for a period of one month.

29. The appeal is partly allowed in the aforesaid terms.

30. The amount of fine shall be deposited before the trial court within a period of one month from the date of receipt of certified copy of this order, if not deposited so far.

31. Let a copy of the judgment be transmitted to the trial court for necessary compliance.

(Mrs. Vani Ranjan Agrawal,J.)

May 6, 2026

P. Pandey