LAKHAN VAISH Vs. STATE

JUDGEMENT

(1.) This is an appeal by Lakhan against a judgment of the Sessions Judge of Budaun, who has convicted him under Section 307 of the Indian Penal Code and sentenced him to rigorous imprisonment for four years.

(2.) The appellant lives In Bisauli town and his neighbour Badri Prasad previously practiced as Mukhtar and is now doing business. Badri Prasad has an oil and flour mill and a cane-crusher in Bisauli about three furlongs to the east of his house. His relations with the appellant ana his brother Sohan Lal and cousins Basanti Lal and Puran Mal had been strained for the last five years due to litigation between them. There was a case instituted by his Karinda against the appellant or his relations and there have been cases brought against him. One suit was instituted by him against Basanti Lal and Puran Mal for possession and damages and its summonses were served on them on 29-4-55. After the institution of the suit but a few days before the summonses were served, he complained to Sohan Lal against filthy water coming from the latter's compound into his compound and Sohan Lal replied that he could file a suit against him just as he had filed one against Basanti Lal and Puran Mal. Sohan Lal evidently referred to the above suit; he might have heard about the institution though the summones were served a couple of days later Badri Prasad was in the practice of going from his house to his mill every day in the evening at 5 P.M. and returning home after sunset. Accordingly on 9-5-55 he returned from his mill at about 8 P.M. On his way, there lies a kathal grove of Bijai Singh and he took the foot-path through the grove. Just to the north of the grove is a pathway and to its north is a grove of Jai Jai Ram. When Badri Prasad was walking through the grove of Bijai Singh, he noticed a man walking towards him from the north, it was dam and he could not recognise him. When the man approached him and was 5 or 6 steps from him he noticed that he had in his hand something like a pistol. He instinctively raised his stick and threatened to use it in case he went nearer whereupon the man fired at him. In the blaze of the fire, he recognised that the man was Lakhan appellant. He was wounded and at once shouted "Lakhan is running away after shooting with a pistol." His shouts were heard by Hira Lal. Buddha and Kewal. Hira Lal was at that time washing himself on the bank of a pond just close to the two groves; as soon as the shouts were heard he flashed his torch in the direction of the person running away and recognised him to be Lakhan. Buddha was on a well to north-west of the grove of Bijai Singh and in the light of the torch flashed by Hira Lal, he also recognised the running man as Lakhan. The two men went up to Badri Prasad, who at once said that Lakhan after shooting him had run away into the grove of Jai Jai Ram. Hira Lal and Buddha took him to the police station which is at a distance of One furlong. At 8-15 A.M. Badri Prasad handed over a written report of the occurrence at the police station. He was at once sent to the hospital in the town where his injuries were examined at about 8-30 P. M. He had six gun-shot wounds in an area 2 1/2" x 2", the sizes ranging from 3/4 x 1/2" to 1/2 x 1/4" skin deep 1/2" lateral to the middle of right side abdomen, on its upper part. There were four rents on the kurta that Badri Prasad was wearing and there was a slight blackness. There was one rent on the vest that he was wearing under the kurta. The two garments were taken possession of at the police station after his medical examination. The station officer at once went to the spot for investigation. He recovered wads from, the grove of Bijai Singh. He examined both the eye-witnesses at once in the night and then went to the house of the appellant taut found him absconding. He got no trace of his whereabouts from his brother Sohan Lal. He continued to search for him but in vain and on 12-5-55 got his property attached under Section 88 Cr. P. C. He suddenly came across him in the court compound on 18-5-55 and arrested him.

(3.) The prosecution relied upon the evidence of Badri Prasad, Hira Lal and Buddha, who fully supported the prosecution case; The statement of Badri Frasad is amply corroborated by the first information report made by him immediately after the occurrence before he had any time to think of the person to be implicated and to tutor Hira Lal, Buddha etc. to give evidence in support of his version. He mentioned in the report how he recognised the appellant as the person who shot at him, once in the blaze of the pistol fire and again in the light of a torch. There was no conflict whatsoever between his deposition in court that the torch was of Hira Lal and the first information report in which he mentioned the torch but not the fact that it was of Hira Lal. The names of the witnesses Hira Lal and Buddha are mentioned in the report. The injuries found by the doctor on his person also fully corroborate his evidence. There was futile cross-examination of the doctor about the injuries; the case set up in defence was not that Badri Prasad was not shot at or that he inflicted the injuries himself, but that he was shot at by somebody who could not be recognised on account of darkness. It is in the evidence of the doctor that Badri Prasad was shot at from a distance of a couple of yards and this is also the evidence of Badri Prasad. He created a very favourable impression upon the learned Sessions Judge and there is absolutely no reason for my saying that he did not speak the truth or that he could not recognise his assailants. There is nothing whatsoever to create even a doubt about his recognising the assailant. Even in some darkness he could recognise the appellant, who was his immediate neighbour. A flash of light was enough to enable him to recognise him. There is no reason to disbelieve the evidence of Hira Lal and Buddha also. No enmity between them and the appellant has been suggested. It was suggested that Hira Lal used to buy sugarcane from Badri Prasad's mill, that Buddha worked at Hira Lal's shop and that his son was employed by Badri Prasad; but these suggestions were denied by the witnesses. Badri Prasad admitted that Hira Lal previously used to buy sugarcane from his mill but said that he had not been doing so for the last 2 or 3 years. Hira Lal denied having ever purchased sugarcane from the mill but admitted that his brother used to purchase it; so he does not contradict Badri Prasad. It is in the evidence that Badri Prasad filed a suit against Hira Lal for the price of sugarcane supplied to him; so Hira Lal would not have given false evidence at his instance. There is no evidence to show that Buddha had any connection with Badri Prasad Or could be under his influence. There was no difficulty whatsoever in his and Hira Lal's recognising the appellant in the light of the torch when he was running through the grove of Jai Jai Ram. Both were to north of the grove of Bijai Singh, and the appellant was running to north.