Bachchu alias Bachchu Singh vs State of U.P.

Poonam Srivastav, J.—The, instant appeal was preferred by sole Appellant, Bachchu alias Bachchu Singh, against judgment and order dated 5.8.1981, passed by Vth Additional Sessions Judge, Mathura, in Session Trial No. 225 of 1979 convicting and sentencing the Appellant u/s 307, I.P.C. to undergo seven years R.I. and fine of Rs. 500. In default of payment of fine, he shall undergo further imprisonment of six months R.I.

Occurrence is alleged to have taken place on 2.3.1979 at 1 a.m. First information report was lodged by Bharat Ram P.W. 1 on the same night on 2.3.1979 at 3.30 a.m. at Police Station Vrindavan, district Mathura. Bharat Ram, P.W. 1 is alleged to have received injuries in the incident.

The prosecution case as disclosed in the first information report is that there was an ongoing litigation between Budhi and Leela in respect of some land. The complainant, Bharat Ram was a sajhidar of Leela. Budhi wanted that Leela should not work as sajhi. Accused Bachchu is son-in-law of Budhi. He had been doing pairvi of the case on behalf of Budhi. Six or seven days prior to this occurrence, accused Bachchu had threatened complainant Bharat Ram with dire consequence in case he did not leave the sajhidari. The complainant told him that he would leave sajhidari after harvesting wheat crop.

In the intervening night of 2/3.3.1979, the complainant, Bharat Ram was sleeping beneath a tin shed in front of his house. At about 1.00 a.m. he woke up on hearing sound of foot steps. He had a torch with him. He flashed his torch light and saw the accused Bachchu alongwith one more person standing there. As soon as complainant flashed his torch light, accused Bachchu fired at him with a pistol, which caused injuries. The complainant raised an alarm, which attracted his father Teja and neighbours Bhagwan Das and Ratan.

Bharat Ram sustained a number of injuries. He was issued majrubi chitthi for Medical Officer Incharge of Civil Hospital, where his injuries were medically examined by Dr. R.S. Agrawal. According to the doctor, following injuries were found on person of the injured.

Multiple circular lacerated wound 1/10" to 2/10" in diameter x depth not probed in an area 12" x 7" on the front of both side of chest upper and middle part. Advised X-ray. Bleeding alongwith swelling.

Multiple circular lacerated wound 1/1.0" to 2/10" in diameter x depth not probed on the right forearm and hand in an area of 14" x 4". Bleeding alongwith swelling of whole of the forearm and hand. Advised X-ray.

The aforesaid injuries were later on X-rayed by radiologist, District Hospital, Mathura. His report is Ex. Ka.-10. Injuries are reported to be caused by firearm arid simple in nature.

The investigation of this case was entrusted to Babu Ram Dixit, who recorded statement of constable Mahendra Singh at Police Station, obtained injury report of Bharat Ram from Civil Hospital Mathura, recorded his statement and that of Dr. R.S. Agrawal. Thereafter, he proceeded towards village Tehra where he recorded statement of Teja. He also prepared a site plan Ex. Ka-4 on the pointing out of Teja. Subsequently, he took into possession torch of Bharat Ram and gave it in supurdgi of Teja vide fard Ex. Ka.-5. He also took into possession blood stained clothes of Bharat Ram vide fard Ex. Ka-6. Thereafter, he arrested the accused Bachchu Singh from Court compound and recorded statements of remaining witnesses. He submitted charge-sheet (Ex. Ka.-11) against the accused Bachchu after completing investigation.

The prosecution examined as many as six witnesses in support of its case while defence produced none.

Heard Sri. A.K. Tiwari, advocate, who was appointed as amicus curiae, by this Court vide order dated 30.10.2009 as there was none to represent Appellant and learned A.G.A. for the State.

First submission is that conviction u/s 307, I.P.C. is uncalled for since injuries are admittedly reported to be simple in nature and it was not caused with an intention to cause death to the injured. Besides, it is submitted that there was no source of light. It is a night incident when the injured was sleeping, though prosecution has tried to introduce torch as source of light. Suggestion on the part of prosecution that it was Bharat Ram, who flashed torch light and recognized assailants, is unbelievable. Besides, other eye-witnesses alleged to have seen the accused causing injuries, are also far-fetched. They are family members and inimical to the accused.

Second submission is that injuries were not proved by the doctor as the doctor was not produced by prosecution for obvious reason. It is apparent that the injured received injuries in some other incident in the intervening night and no one had witnessed occurrence. Appellant''s name was introduced only on account of enmity.

Learned A.G.A. has disputed each and every arguments advanced on behalf of Appellant.

After hearing the counsels for respective parties at length, I am of the view that injuries were caused in the intervening night. No doubt, the doctor has not been examined. Conviction u/s 307, I.P.C. is uncalled for since injuries are reported to be simple in nature. Conviction u/s 324, I.P.C. is the maximum which could be awarded to the Appellant. No doubt, it is night incident but since assailant (Appellant) was known since before as concluded by Vth Additional Sessions Judge, Mathura even a glimpse in the flash of torch is more than sufficient.

On perusal of injury report, it transpires that formal proof was dispensed with. It is admitted that injuries were examined after the injured was brought by constable to the Hospital. Therefore, I conclude that the injured received injuries in the intervening night of 2/3.3.1979. First information report was prompt. Injuries were also examined by the doctor immediately on 2.3.1979 at 5.00 a.m. subsequent to lodging of the report.

In the circumstances, conviction u/s 324, I.P.C. will meet the ends of justice. Conviction u/s 307, I.P.C. and sentence for seven years R.I. is quashed. Appellant is sentenced to the period already undergone u/s 324, I.P.C. and fine of Rs. 500. The instant appeal is partly allowed. Appellant need not be sent to jail after lapse of approximately 30 years. In the event of default in payment of fine, he shall undergo four months imprisonment.

The Chief Judicial Magistrate, Mathura, is directed to ensure realisation of fine from property of Appellant, if any.