SIDH SINGH REVISIONIST Vs. STATE OF U P

JUDGEMENT

(1.) THE appellant Sidh Singh has preferred this appeal against judgment and order dated 23/4/ 1981 passed by Sri Bhagwan Din, the then IV Additional Sessions Judge, Hamirpur in S.T. No. 240 of 1979 convicting him under Section 325 I.P.C. and sentencing to two years rigorous imprisonment. THE incident took place on 3/4/1979 at about 7 P.M. in Village Fatehpura, Police Station Charkhari, District Hamirpur and the report was lodged the same day at 9.30 P.M. at the concerned police station, the distance of which was three miles from the scene of occurrence. THE informant was Shiv Charan P.W. 1 THEre were said to be two other assailants, namely, Narain Singh and Bhattu who have been acquitted by the trial court. THEy were allegedly armed with lathis whereas the present appellant was armed with a gun, 3 or 4 days before the incident Bhattu had beaten up Basoran of the village. Shiv Charancomplainant rebuked Bhattu in this behalf and told him that he would not take his side as he had unnecessarily beaten up Basoran. Bhattu took ill of it and complained to the present appellant Sidh Singh whose land he had taken on Batai. Sidh Singh espoused the cause of Bhattu. At about 7 P.M., on the fateful day. Shiv Narain Singh was standing at his door when Sidh Singh armed with gun, his brother Narain Singh armed with lathi and Bhattu armed with lathi started hurling abuses on Shiv Charan, questioning him as to why he was not on the side of one of them Bhattu. He was also threatened to be shot down if he dared to defy their command. Kashi Prasad, Chaturai, Lakhan Singh and other persons of the village were present at that time. Shiv Charan retorted that he would not take side of a bad man like Bhattu. With an intention to kill him, Sidh Singh opened fire, by which Shiv Charan was hit and fell down. THE accused/appellant fired another shot to scare away the witnesses. Sidh Singh and his other companions ran away. On the lodging of the F.I.R. a case was registered and investigation followed. Injuries of Shiv Charan P.W.1 were examined by the Dr. Ghanshyam Pandey P.W. 5 on 3/4/1979 at 10.15 P.M. THE injury found on his person was: One wound of 1 cm x 1/2 cm x 1-1/2 cm on the right side of the face and 1 cm lateral to outer angle of right eye. Margins sharp. Directions slightly onwards. Fresh bleeding seen. THEre was swelling around the wound and both lids (upper and lower) of right eye. THE muscles of right eye lid slightly protruding. Right eye ball dilated having sluggish reaction to light and very painful. It was kept under observation to ascertain the nature and extent. As per the supplementary report, there was a dense radio opaque shadow of metalic density in the region of right orbit, on Xray being taken. It had been caused by firearm fired from a distance of about 100 feet. It was grievous. THE defence was of denial and of false implication due to enmity. At the trial, the prosecution examined the injured Shiv Charan P.W.1 and Kashi Prasad P.W.2 as eye witnesses. Moti Lal Yadav Head Constable P.W. 3 had scribed the chick F.I.R. whereas S.I. Man Singh Gaur P.W. 4 was the Investigating Officer. Dr. Ghanshyam Pandey was examined as P.W.5. THE trial judge, on appraisal of the evidence, found the offence of Section 325 I.P.C. to be made out and he had convicted and sentenced the appellant as stated above, whereagainst the aggrieved appellant has preferred this appeal. At the hearing of the appeal, none appeared from the side of the appellant to argue the appeal, though he is represented on record by Sri Anis Ahmad, advocate. I have heard learned A.G.A. from the side of the State in opposition of the appeal and have gone through the record which has been summoned. THE appeal is being decided on merits. Obviously, the F.I.R. was prompt and lodged by the injured himself. Despite the F.I.R. having been lodged by oral narration, it contained all the material particulars as to what was the backdrop and how the incident started. THE names of the witnesses including Kashi Prasad P.W. 2 were also given in the F.I.R. Obviously no time gap intervened between the incident and the lodging of the F.I.R. Both the parties were residents of same village. THE incident had taken place at about 7.00 P.M. in the month of April, when darkness had not set in. THEre had been exchange of hot words also before the actual incident of shooting. All the things considered, there was no possibility of misidentity. Shiv Charan P.W. 1 who was injured of the felony and the maker of the F.I.R. was supported in material particulars by an eye witness Kashi Prasad P.W. 2 and the central core of the testimony of both the witnesses could not be dislodged despite searching cross-examination. THEre could be no reason for false implication of the appellant. THE ocular account of the incident had rightly been accepted by the court below. However, the shot had been fired from a distance of about 100 feet as mentioned in the injury report and also deposed by Dr. Ghanshyam Pandey, P.W. 5. THE trial judge has rightly found that intention to kill could not be inferred on cumulative consideration of facts, evidence and the circumstances of the case. But, the offence of Section 325 I.P.C. has rightly been found to be proved against appellant and I see no reason to interfere with the same in this appeal. Coming to the sentence part, it is noted that the incident took place nearly 23-1/2 years back on 3/4/1979. THE statement of the accusedappellant under Section 313 Cr.P.C. was recorded on 13/4/1981 when he gave his age as about 40 years. He must be nearly 62 years now. THE scrutiny of the record shows that he was sent to jail on 10/5/1979 and released on 6/6/1979 and he was again sent to jail on the decision of the trial on 23/4/1981 and bail was granted to him by this Court on 26/6/1981. A few days more must have elapsed before his actual released from jail. He has thus roughly remained in jail for about 3 months. THE ends of justice would be met by modifying his sentence to the period already undergone by him and to pay a fine of Rs. 10,000.00. It would also be just and proper to pay half of the amount of fine, if realised, to the victim, namely, Shiv Charan P.W. 1, in case he is alive. In the result, it is finally ordered as under :- THE appeal is dismissed and the conviction of the appellant, Sidh Singh under Section 325 I.P.C. is maintained but his sentence of two years rigorous imprisonment is modified to the period already undergone and to pay a fine of Rs. 10,000.00. In default of payment of fine, he shall suffer one years rigorous imprisonment for the offence of Section 325 I.P.C. Rs. 5,000.00 out of fine of Rs. 10,000.00 shall be paid to the injured Shiv Charan P.W. 1, in case he is still alive. Let a copy of this judgment along with record of the case be immediately sent to the court below for needful compliance under intimation to this Court within two months from the date of receipt. Appeal dismissed with modification in sentence.