MOOL CHANDversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2807 of 1985

Mool Chand
                                                            .....Appellant(s)
                                  Versus
State of U.P.
                                                          .....Respondent(s)

Counsel for Appellant(s)            :   Sanjeev Kumar, V.P.Srivastava
Counsel for Respondent(s)           :   A.G.A.

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

1. The instant appeal has been preferred against the Judgment and Orders
dated 18.9.1985 passed by the learned III Additional District & Sessions
Judge, Moradabad in Sessions Trial No.2 of 1985 (State vs. Mool Chand,
under Section 307 of the Indian Penal Code, Police Station Didauli, District
Didauli, whereby the appellant has been convicted and sentenced as under:-

i) Under Section 307 I.P.C. - Rigorous Imprisonment for a period of three
years to appellant

2. Heard learned counsel for the appellant and Sri Rahul Asthana, learned
A.G.A. appearing for the State.

3. According to prosecution

At about 4:00 PM on 18.08.1984 there was a quarrel between the accused
Mool Chand and the son of Kewal Singh. When Kewal Singh passed by that
way he was also abused by Bhika who struck a lathi blow also on his back.
Soon after the accused Mool Chand fired a shot from his gun, which caused
injuries on the left side hand and ear of Kewal Singh. The first information
report of the incident was lodged by Kewal Singh himself at 5:00 P.M. on
the same day at Police Station Didauli. The police registered the case, and
thereafter, the injured was medically examined and x-ray was done. The
police visited the spot and recovered the tikki of the cartridge. A site map
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                                 2

was also prepared. After completing the investigation the police submitted
the charge sheet against the accused on 22.9.1984.

4. In order to prove it's version, the prosecution examined P.W.-1 Kewal
Singh; P.W.-2 Doli and P.W.-3 Sukhi Ram.

5. The Defense admitted the genuineness of the Chik report (Ext. ka-2), X-
ray report (Ext. ka-3), X-ray plate (Ext. ka-4), Radiologist report (Ext. ka-5),
injury report (Ext. ka-6), Recovery memo (Ext. ka-7), sketch map (Ext. ka-
8), GD extract (Ext. ka-9) and Charge sheet (Ext. ka-10).

6. As far as the factum of injuries are concerned, the testimony of P.W.1 has
gone unchallenged and he deposed that the accused persons belonged to his
own village and that Mool Chand was Bhika's son who fired a gun shot upon
him. This occurrence was allegedly seen by Doli, Sukhi Ram and others. He
admitted in his cross examination that since before this occurrence, he and
the accused had strained relations and they were not on talking terms.

P.W.-2 Doli was examined for the prosecution who denied having seen the
occurrence and this witness was declared hostile by the prosecution.

P.W.-3 Sukhi Ram also deposed that he and some others were sitting in the
Gher of Pooran Singh and went to the spot near the house of Kewal Singh
but he denied any injuries being caused to him in his presence and hence this
witness was also declared hostile by the prosecution.

7. The injury report Exhibit-Ka-6 shows that injured Kewal Singh has
sustained following injuries on his person:-


     (i). Lacerated wound .2 x .2 cm. on the ala of left ear from the
     external ear opening; margins inverted and blackend; advised for
     x-ray; blood clot present around the wound.

     (ii). Contusion 6 x 2 cm. on the right back 16 cm above the iliac
     bone read in colour.
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                                3


     The Doctor kept the injury no.1 under observation and advised x-
     ray. In his opinion injury No.2 was caused by some blunt object
     and the duration of both the injured was fresh. The radiologist
     report (Ext.-Ka-3) shows radio opaque foreign body shadow in
     the left ear louble region in both. A.P. and lateral views the x-ray
     of left ear. On its basis the Doctor gave a supplementary report
     (Ext.-Ka-5) to the same effect and observed that this injury was
     caused by firearm.


8. In the statement recorded under section 313 Cr.P.C the accused Bhika
admitted signs of Pallet impacts on the walls of Kewal Singh.

9. The Learned trial court after considering the submissions of both the
parties and appreciating the evidences adduced concluded that Kewal
Singh's testimony that he sustained gun shot wounds on his left ear is
corroborated by the said medical evidence. The act of firing by Mool Chand
seems to be independent of any plan or intention shared by him with his
father Bhika and therefore, Bhika is liable only for lathi blow U/s 323 IPC.
On the other hand the co – accused Mool Chand is guilty of an offense U/s
307 IPC for attempting to cause murder of Kewal Singh.

10. The learned trial court after hearing the parties and appreciating the
evidence was of the view that prosecution was able to prove the guilt of
accused-appellant for the offence under Sections 307 IPC beyond reasonable
doubt and convicted and sentenced him for the aforesaid offence. Aggrieved
with the aforesaid conviction and sentence imposed vide the impugned
judgment and order, the accused appellant has preferred the present appeal.

11. It was submitted by learned counsel for the appellant that from the
prosecution evidence offence under Section 307 IPC is not made out in the
present matter. Findings of the Trial Court about conviction and sentence
against the accused-appellant under Section 307 IPC is illegal. At this
juncture, learned counsel for the appellant referred to the entire evidence as
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                                 4

well as the injury report prepared in respect of injured Kewal Singh and
argued that injuries said to have been caused by accused-appellant to the
injured Kewal Singh is not on vital part. If entire prosecution case is taken
into consideration then also at the most accused-appellant could be convicted
only for the offence under Section 324 IPC. Since in this matter appellant
has served out above one month imprisonment, relying upon the law laid
down in Criminal Appeal No. 3098 of 1982 (Asharaf & others Vs. State
of U.P.) and Criminal Appeal No. 2842 of 1987 (Munua @ Bharat
Narain Singh and others Vs. State of U.P.), it is submitted that the appeal
may be decided extending leniency on the basis of imprisonment already
undergone as no minimum sentence is provided for the offence under
Sections 324 IPC. Furthermore, the prosecution witnesses have also not
supported its case fully.

12. Per contra, learned A.G.A. argued that accused-appellant opened fire
upon the injured Kewal Singh with intention to kill him. All the ingredients
to constitute the offence under Section 307 IPC have been proved by the
prosecution from its evidence. Medical evidence fully supports the oral
version. Findings of the Trial Court recorded in the impugned judgment and
order are based on correct appreciation of facts and evidence. Although no
minimum sentence has been provided for the offence under Section 307 IPC
yet sentence imposed by the Trial Court against the accused-appellant vide
impugned judgment and order is adequate and proper and no further
leniency is warranted in the matter.

13. I have considered rival submissions made by learned counsel for parties
and have gone through entire record including case laws relied upon by the
learned counsel for the appellant carefully.

14. In this matter, as is evident from record, since no other argument about
involvement of accused-appellant was advanced on behalf of appellant,
Court perused the entire record in light of submissions raised by learned
counsel for the appellant to ascertain as to whether in the present matter
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                                 5

offence under Section 307 IPC is made out or not. Hence, in light of findings
of the Trial Court about date, time and place of occurrence and also about
involvement of accused-appellant in commission of present offence, I have
analyzed the entire evidence adduced by the parties and find no error.
Therefore, findings recorded by the Trial Court in the impugned judgment
and order on the aforesaid issues need no interference.

15. Prosecution case is that accused-appellant opened fire upon injured
Kewal Singh with intention to cause him grievous hurt/kill him. If injury
report prepared in respect of injured Kewal Singh is minutely perused, it
emerges that fire arm injury is on non-vital part. No blackening, tattooing or
charring were found over the injury. No second fire arm shot was made. It is
also evident from the record that although doctor, who examined the injured
Kewal Singh advised X-ray and the Doctor gave supplementary report to the
same effect. If such is the position then it is not possible to ascertain whether
injuries caused to injured Kewal Singh were grievous in nature or not. If the
injury report prepared in respect of injured Kewal Singh is taken in light of
submission raised by learned counsel for the appellant, injuries were simple
in nature. There is no repetition of fire. The attending circumstances
emerged from the prosecution evidence itself indicate that fire made upon
the injured Kewal Singh was not with intention to kill him. If such is the
position, findings of the trial court that offence under Section 307 IPC
against accused-appellant has been proved by the prosecution, in my
considered opinion, is not based on correct appreciation of facts and
evidence. Perusal of the impugned judgment and order also reveals that no
discussions at all have been made by the Trial Court in the impugned
judgment and order about constitution of offence under Section 307 IPC.
Trial court erred in holding guilty to the appellant for committing the offence
under Section 307 IPC. On close scrutiny of entire evidence available on
record, it emerges that the appellant could only be held guilty for the offence
under Section 324 IPC. Thus, on close scrutiny of the entire evidence, the
findings recorded by the trial court on this point can be termed to illegal and
                                                             CRLA No. 2807 of 1985
                                  6

perverse and the same are not based on correct appreciation of evidence.
Hence, the same require interference by this Court. In my opinion, the
appellant is found guilty for the offence under Section 324 IPC and not for
the offence under Section 307 IPC. Hence, submission raised by learned
counsel for the appellant has some force and to this extent is acceptable and
the appeal to this extent is liable to be allowed.

16. So far as the submission regarding sentence is concerned, it is always a
difficult task requiring balancing of various considerations. The question of
awarding sentence is a matter of discretion to be exercised on consideration
of circumstances aggravating and mitigating in the individual cases.

17. It is settled legal position that appropriate sentence should be awarded
after giving due consideration to the facts and circumstances of each case,
nature of the offence and the manner in which it was executed or committed.
It is the obligation of the court to constantly remind itself that the right of the
victim, and be it said, on certain occasions the person aggrieved as well as
the society at large can be victims, never be marginalized. The measure of
punishment should be proportionate to the gravity of the offence. Object of
sentencing should be to protect society and to deter the criminal in achieving
the avowed object of law. Further, it is expected that the courts would
operate the sentencing system so as to impose such sentence which reflects
the conscience of the society and the sentencing process has to be stern
where it should be. The court will be failing in its duty if appropriate
punishment is not awarded for a crime which has been committed not only
against the individual victim but also against the society to which the
criminal and victim belong. The punishment to be awarded for a crime must
not be irrelevant but it should conform to and be consistent with the atrocity
and brutality which the crime has been perpetrated, the enormity of the
crime warranting public abhorrence and it should 'respond to the society's
cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan
Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4
SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan,
                                                               CRLA No. 2807 of 1985
                                   7

(1996) 2 SCC 175].

18. In view of the above propositions of law, the paramount principle that
should be the guiding laser beam is that the punishment should be
proportionate to the gravity of the offence.

19. The Apex Court in the case of G. V. Siddaramesh Versus of State of
Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the
appellant, altered the sentence. Paragraph 31 of the said judgment is
reproduced below:

     "31. In conclusion, we are satisfied that in the facts and circumstances of
     the case, the appellant was rightly convicted under Section 304-B I. P. C.
     However, his sentence of life imprisonment imposed by the Courts below
     appears to us to be excessive. The appellant is a young man and has
     already undergone 6 years of imprisonment after being convicted by the
     Additional Sessions Judge and the High Court. We are of the view, in the
     facts and circumstances of the case, that a sentence of 10 years' rigorous
     imprisonment would meet the ends of justice. We accordingly, while
     confirming the conviction of the appellant under Section 304-B, I. P. C.,
     reduce the sentence of imprisonment for life to 10 years' rigorous
     imprisonment. The other conviction and sentence passed against the
     appellant are confirmed."

20. Applying the principles laid down by the Apex Court in the aforesaid
judgments and having regard to the totality of the facts and circumstances of
the case particularly the fact that no minimum sentence has been provided in
the Indian Penal Code for the offence under Section 324 IPC as also in this
case the appellant has served out considerable period of the sentence
imposed upon him and this appeal is pending before this Court since 1985
i.e. for about 41 years, the delay deprives the rights of the appellant, I am of
the considered view that the ends of justice would meet if the sentence of the
appellant is reduced to the period already undergone with some reasonable
amount of fine.

21. In the light of foregoing discussions, this appeal is liable to be allowed in
part and the conviction of the appellant under Section 307 IPC is modified
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                                                                     8

                                    and altered to the offence under Section 324 IPC. The impugned judgment
                                    and order dated 18.9.1985 is liable to be modified to the extent as discussed
                                    above.

                                    22. Accordingly, the appeal is allowed in part. Conviction of the appellant
                                    for the offence under Section 307 IPC is altered and modified into the
                                    offence under Section 324 IPC but the sentence of imprisonment for the
                                    aforesaid offences is awarded to the appellant to the period already
                                    undergone imposing fine of Rs.5,000/- for the offence under Section 324
                                    IPC. Fine amount imposed upon accused-appellant for the aforesaid offence
                                    shall be deposited by the appellant within three months from today. In case
                                    of default in payment of fine amount within the aforesaid period, the
                                    appellant shall serve out the entire sentence awarded to him by the Trial
                                    Court vide the impugned judgment and order.

                                    23. Let a copy of this judgment along with lower court record be sent to
                                    Sessions Judge, Moradabad for compliance. A compliance report be sent to
                                    this Court. Copy of this order be also provided to the appellant through the
                                    concerned Jail Superintendent.

                                    April 7, 2026
                                    Dev
                                                                               (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
DEV PRAKASH
High Court of Judicature at Allahabad