Point of law : Conviction under section 307 set aside - Simple injuries - No injury was dangerous to life.

JUDGMENT :

This appeal has been preferred by appellants Jasveer, Rajan, Raju and Amit @ Guddu against the judgment and order passed by Learned Additional Sessions Judge [Fast Track Court No. 2] Muzaffar Nagar dated 20.07.2018 in Session Trial No. 735 of 2013 (State of U.P. Vs. Jasveer and others) arising out of Case Crime No. 240 of 2012, under Sections 452, 307/34, 323/34, 504 and 506 I.P.C., Police Station-Mansoorpur, District-Muzaffar Nagar by which learned trial court convicted and sentenced the appellants for 10 years rigorous imprisonment under Section 307/34 I.P.C., for seven years under Section 452 I.P.C., one year R.I. under Section 323/34 I.P.C., two years R.I. under Section 504 I.P.C. and seven years R.I. under Section 506 I.P.C. along with fine and imprisonment in default of fine. All the sentences were directed to run concurrently.

2. The brief facts giving rise to this appeal are that informant of this case Smt. Prakashwati W/o Late Peetam Singh submitted a written report Ex. KA-1 in P.S.-Mansoorpur, District-Muzaffar Nagar on 13.06.2012 with the averments that on that day she was sitting inside her house with her son Pradeep and daughter-in-law Sudha. At about 8:30 in the morning Jasveer, Amit @ Guddu, Rajan and Raju of her village entered her house with country made pistol [‘Tamancha’], ‘Balkati’ [Sharp edged instrument] and ‘Lathi-danda’ and started abusing. When her son Pradeep stopped them from abusing, all the accused persons/appellants fired with intention to kill and attacked on Pradeep with ‘Balkati’ and ‘Lathi-danda’ and beating him badly. When she tried to intervene, she was also attacked and her daughter-in-law Sudha was also attacked by appellants. Her son Pradeep and she herself sustained serious injuries. On her hue and cry Ashok, Vinod and other villagers came on the spot who saw the occurrence and saved them. While going back, the accused persons threatened them to kill him in the future.

3. Case Crime No. 240/2012 under Section 452, 307, 504, 506 I.P.C. was registered against all the appellants. After investigation, charge sheet against all the appellants was submitted by Investigating Officer. Learned trial court framed charges against all the appellants under Section 452, 307/34, 323/34, 504 and 506 I.P.C. After trial learned court convicted and sentenced all the appellants as aforesaid. Hence this appeal.

4. Heard Shri Vindeshwari Prasad, learned counsel for appellants, Shri Ashutosh Singh, learned counsel for the opposite party and Shri B.A. Khan, learned A.G.A. for State.

5. Learned counsel for appellants submitted that there are two injured in this case, one is informant Prakashwati and other her son Pradeep. All injuries of Pradeep are simple in nature except injury no. 8 which is fracture in his right arm. It is further submitted that there is no injury of fire arm and no fire arm was even used in entire incident as per prosecution witnesses themselves. Hence no case under Section 307 I.P.C. is made out and learned trial court wrongly convicted the appellants under this section. It is argued that the case maximum goes to the extent of offence under Section 325 I.P.C. although it is not clear from the prosecution evidence as to who had caused the injury no. 8, i.e. fracture to the injured Pradeep.

6. Learned counsel for appellant further argued that learned trial court wrongly framed the charge against the appellants under Section 307 I.P.C. because no intention to kill is emerged from entire prosecution story and injuries nor there was any firing by any appellants. Injured witnesses themselves and Investigating officer have said that no firearm was used and injury reports also suggest it. In this way there is no evidence for the offence under Section 307 I.P.C. In her statement informant/injured PW-1 Prakashwati has made so many improvements. She has stated in her statement that no fire was made by Jasveer although she has stated that Jasveer tried to make fire but it was missed but no such av