SHIV PAL SINGH AND OTHERSversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                   CRIMINAL APPEAL No. - 1008 of 1988

Shiv Pal Singh And Others
                                                            .....Appellant(s)
                                   Versus

State of U.P.
                                                          .....Respondent(s)

Counsel for Appellant(s)         : Adil Jamal, Birendra Singh, Rakesh
                                   Kumar      Singh,    S.S.Bhadauria,
                                   S.Shekhar
Counsel for Respondent(s)        : A.G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. Heard Sri Rakesh Kumar Singh, learned counsel for the appellants and Sri
Rahul Asthana, learned A.G.A. for the State

2. This appeal has been preferred against the judgment and order dated
25.04.1988 passed by Additional Sessions Judge, Jalaun at Orai in Sessions
Trial No.177 of 1985, State Vs. Shiv Pal Singh and others, under sections
307/34 I.P.C., whereby the appellants Shiv Pal Singh, Bhoore Singh and
Babu Singh were convicted and sentenced under Sections 307/34 I.P.C. for
three years R.I. along with a fine of Rs.300/- each, and the appellant Ram
Bahadur Singh was convicted under Section 307/34 I.P.C. for one year R.I.
along with a fine of Rs.200/-.

3. During pendency of appeal, it has been brought on record that appellant
No.2 Ram Bahadur Singh, appellant No.3 Bhoore Singh and appellant No.4
Babu Singh have expired. Considering the report dated 17.01.2017
submitted by the Chief Judicial Magistrate, Jalaun at Orai, the appeal in
respect of appellant Nos.2, 3 and 4 had abated vide order dated 13.02.2017.
The present appeal survives only with regard to the appellant No.1 Shiv Pal
Singh.

4. The prosecution case, in brief, is that on 12.03.1985 at about 2.30 p.m.,
the complainant - Bishambher Singh was allegedly assaulted by the accused
persons. It is alleged that the appellant Bhoore and co-accused Shiv Pal
Singh fired at the complainant as a result of which he fell from his bycycle,
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and thereafter co-accuse Babu Singh assaulted him with a Karauli.

5. The conviction is primarily based on the testimony of the injured witness
P.W.-3 Bishambhar Singh and supporting statements of other eye-witnesses
Kishan Swaroop and P.W.-2 Bhadu along with medical evidence, injury
report Ext. Ka-4 and statement of P.W.-6 Dr. D.K. Pateria.

6. On the basis of written report Ext. Ka-1 regarding the incident, FIR Ext.
Ka-2 was registered and G.D. Entry Ext. Ka-3 was drawn. The injured was
medically examined by the police. Injury report Ext. Ka-4 is available on
record. During investigation of the case, site plan of place of occurrence has
been prepared that has been proved as Ext. Ka-5 by the Investigating Officer
after investigation of the case, charge-sheet Ext. Ka-6 was submitted.

7. Charge under Section 307 I.P.C. read with Section 34 I.P.C. has been
framed and read over to the accused. The accused denied the charges
levelled against him and claimed trial. The prosecution has examined as
many as 7 witnesses. P.W.-1 Kishan Swaroop, P.W.-2 Bhadu, P.W.-3
Bishambhar Singh, P.W.-4 Raghuveer Singh, P.W.-5 Sudhir Kumar, P.W.-6
Dr. D.K. Pateria and P.W.-7 S.I. Bardan Singh.

8. The accused denied all the charges levelled against him in his statement
recorded under Section 313 Cr.P.C. The defence evidence have not been
adduced.

9. Learned trial court, after hearing the arguments and considering the oral
and documentary evidence on record, returned a finding of conviction and
convicted the accused persons for offence under Section 307 I.P.C. and
sentenced to undergo 3 years of rigorous imprisonment along with a fine to
the tune of Rs.300/- each.

10. Learned counsel for the appellant has contended that even if the
prosecution case is taken at its highest, the essential ingredients of Section
307 I.P.C. are not made out. It is submitted that the injury sustained by the
injured was not shown to be dangerous to life and likely to cause death. The
injured was not hospitalized even for a single day for the treatment of
injuries sustained in the incident. The injuries were not on vital parts of the
body and, therefore, at best, an offence under Section 324 I.P.C. is made out.
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11. Per contra, learned A.G.A. for the State has supported the judgment of
conviction.

12. Having considered the submissions and perused the record, this Court
finds that the core question is whether the offence under Section 307 I.P.C.
is made out against the appellant.

13. It is well settled that to attract Section 307 I.P.C., the prosecution must
establish the intention or knowledge to cause death coupled with an overt
act. The nature of injuries, the part of the body where injuries are caused are
also relevant factors to infer such intention.

14. In the present case, the medical evidence indicates that the injured
sustained as many as 11 injuries, out of which only two were opined to be
possibly caused by fire-arm. However, there is no categorical medical
opinion that the said injuries were likely to cause death or that they were
dangerous to life. It is also noteworthy that the injured was not admitted to
hospital even for a single day for the treatment of injuries sustained in the
incident and no material has been brought on record to indicate that his life
was in danger at any point of time. The injuries are not shown to have been
inflicted on vital parts of the body in a manner suggested on intention to
cause to death.

15. In such circumstances, ingredients required to sustain conviction under
Section 307 I.P.C. are not satisfactorily established. However, the
prosecution evidence clearly establishes that the appellant caused injuries to
the complainant by use of fire-arm which is a dangerous weapon, therefore,
the offence falls within the ambit of Section 324 I.P.C. 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,
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     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."

16. Considering the facts and circumstances including the nature of injuries,
this Court is of the considered opinion that offence under Section 307
I.P.C. is not made out, therefore, the conviction and sentence recorded
under Section 307 I.P.C. is hereby set aside and the appellant is convicted
for the offence under Section 324 I.P.C.

17. So far as the question of extending benefit of Section 4 of Probation of
Offenders Act to the appellant is concerned, it is essential to discuss the legal
position and law pronounced. In this regard, Section 4 of the Probation of
the Offenders Act, 1958 is extracted hereinunder :-

     "4. Power of court to release certain offenders on probation of
     good conduct.-(1) When any person is found guilty of having
     committed an offence not punishable with death or imprisonment
     for life and the court by which the person is found guilty is of
     opinion that, having regard to the circumstances of the case
     including the nature of the offence and the character of the
     offender, it is expedient to release him on probation of good
     conduct, then, notwithstanding anything contained in any other
     law for the time being in force, the court may, instead of
     sentencing him at once to any punishment direct that he be
     released on his entering into a bond, with or without sureties, to
     appear and receive sentence when called upon during such
     period, not exceeding three years, as the court may direct, and in
     the meantime to keep the peace and be of good behaviour:

     Provided that the court shall not direct such release of an
     offender unless it is satisfied that the offender or his surety, if
     any, has a fixed place of abode or regular occupation in the place
     over which the court exercises jurisdiction or in which the
     offender is likely to live during the period for which he enters into
     the bond. "
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18. A similar provision finds place in the Code of Criminal Procedure, there,
Section 360 provides :-

     Section 360- Order to release on probation of good conduct or
     after admonition :-

     When any person not under twenty-one years of age is convicted
     of an offence punishable with fine only or with imprisonment for
     a term of seven years, or less, or when any person under twenty-
     one years of age or any woman is convicted of an offence not
     punishable with death or imprisonment for life, and no previous
     conviction is proved against the offender, if it appears to the
     Court before which he is convicted, regard being had to the age,
     character or antecedents of the offender, and to the
     circumstances in which the offence was committed, that it is
     expedient that the offender should be released on probation of
     good conduct, the Court may, instead of sentencing him at once
     to any punishment, direct that he be released on his entering into
     a bond, with or without sureties, to appear and receive sentence
     when called upon during such period (not exceeding three years)
     as the Court may direct and in the meantime to keep the peace
     and be of good behaviour;

     Provided that where any first offender is convicted by a
     Magistrate of the second class not specially empowered by the
     High Court, and the Magistrate is of opinion that the powers
     conferred by this section should be exercised, he shall record his
     opinion to that effect, and submit the proceedings to a Magistrate
     of the first class forwarding the accused to or taking bail for his
     appearance before, such Magistrate, who shall dispose of the
     case in the manner provided by Sub-Section (2).

19. After considering the fact that the appellant has no criminal antecedents,
the occurrence is of the year 1985. The appellant has faced the ordeal of trial
and appeal for a long period. No adverse material has been produced
regarding misconduct during the pendency of trial and appeal. In these
circumstances, this Court finds appropriate to invoke the provisions of
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                                    Section 4 of Probation of Offenders Act, 1958 instead of sending the
                                    appellant to imprisonment.

                                    20. The appellant Shiv Pal Singh is directed to be released on probation on
                                    good conduct for a period of one year on his furnishing personal bond of Rs.
                                    10000/- and one surety in the like some before District Probation Officer
                                    concerned and also an undertaking to the effect that he shall maintain peace
                                    and good behaviour during the period of one year from today.

                                    21. The said bonds are to be filed by the appellant within a period of three
                                    months from the date of receipt of certified copy of this judgment.

                                    22. In case of breach of any of the conditions, the appellant shall be taken
                                    into custody and shall have undergo sentence awarded to him.

                                    23. With the above modification, the instant criminal appeal is partly
                                    allowed.

                                    24. A certified copy of the order be also sent to the concerned Court for
                                    compliance. Trial Court record shall also be sent back to the District Court
                                    concerned.



                                                                                (Mrs. Vani Ranjan Agrawal,J.)
                                    February 19, 2026
                                    P. Pandey




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad