S.D. Khare, J.
1. This is an appeal by Bhagwan Din and nine others, all of whom have been convicted for the offence of rioting and making attempts to commit the murders of Murlidhar and Phakkar (P. Ws. 1 and 2) by causing gunshot injuries to them. It first came up for hearing before a learned single Judge of this Court, who referred it to a larger Bench, Connected with it is Criminal Revision No. 1780 of 1966 filed by four of the appellants and their sureties.
2. The occurrence is of 26th February, 1963. and it took place in the village of Bisra within police circle Bisra, district Banda. Phakkar (P W 2) had, at about 6 a.m. gone towards Banha Talab to ease himself and Murlidhar (P. W. 1) had also gone that very side to bring green fodder for his cattle. After Phakkar had eased himself and had proceeded in the company of Murlidhar towards Sarju Dube's field the ten appellants, out of whom Ram Kumar was armed with a pistol, Shivball and Ham Kishun were armed with guns and the remaining seven appellants with lathis, rushed out from their hiding place. Phakkar tried to run away from there. Bhagwan Din(appellant) exhorted others by saying 'maro' which could either mean 'cause injuries' or 'kill'. The accused persons, who were holding lathis, did not go near Phakkar and Murlidhar who were at a distance of only about 18 or 19 paces from them. However, all the three accused persons, who had firearms with them, fired their weapons. Shivbali and Bam Kishun caused injuries to Phakkar, while Ram Kumar, who was armed with a pistol, was responsible for the injuries which Murlidhar suffered. Both the injured raised an alarm which attracted the attention of other villagers who had gone that side to ease themselves and upon their arrival all the assailants made good their escape.
3. The first information report of the occurrence was lodged by Murlidhar (injured) on the same day at 7 a.m. at police station Bisra which is at a distance of four furlongs from the place of occurrence. The motive for the crime, the occurrence as it had taken place and the names of the witnesses were mentioned in it. Both the injured were sent for their medical examination. They were examined by Dr. M. P. Lal (P. W. 11) on the same day at 3 p.m. and the doctor found the following injuries on the two injured persons as a result of his examination:
1. Several pellet injuries of the size 1/5' x 1/5' skin deep on the back side of the left thigh in an area of 8' x 5'.
2. Several pellet injuries of the size 1/6' x 1/5' skin deep on the back of the right thigh in an area of 9' x 4 1/2'
1. Several pellet injuries of the size 1/6'x 1/6' skin deep on the back of the right thighin an area of 12' x 6'.
2. Several pellet injuries of the size 1/6' x 1/6' skin deep on the back of the left thigh in an area of 5' x 3'
4. In the opinion of the doctor all the injuries were simple and appeared to be about nine hours old at the time of the examination. They could have been caused with a firearm such as a pistol or gun. The doctor was further of the opinion that the firearm must have been fired from a distance of about 12 feet or more Since there was some difference in the dimensions of the injuries caused to each of the injured persons the doctor was of the opinion that all the four injuries, two to each of the injured persons, could not be the result of one shot from a firearm. The doctor could not be definite whether the injuries received by Phakkar on the back of his two thighs were by a shot from one firearm or by two shots from two firearms The doctor was able to extract two pellets from the back, of the left thigh of Phakkar and also two pellets from the injuries of Murlidhar The doctor was also of the opinion that both the injuries of Murlidhar could have been caused with one shot from one firearm and similarly both the injuries of Phakkar could also be caused by one shot from one firearm.
5. The prosecution relied on the testimony of five eye-witnesses of the occurrence.They are Murlidhar injured (P. W. 1), Phakkar injured (P. W. 2), Kuber Singh (P. W. 3), Ram Jal (P. W. 4) and Ram Kishun (P. W. 6). They fully supported the prosecution case. Murlidhar also stated about the motive for the crime and said that Ram Autar and Chunbad were beaten in 1962 and on that account a criminal case was started against fourteen persons, including Murlidhar and Phakkar. In that case Narbada. Puswa, Ram Kumar. Ram Autar and Chunbad (appellants) were prosecution witnesses. The case, however, ended in acquittal. He further stated that four days after that occurrence about which a criminal case had been started the accused Ram Autar and Chunbad and one Dhanpat, the servant of P. W. Sanglu were beaten on 30th May, 1962, and a criminal case was started against Dhanpat, Ram Kishun (appellant). Ram Kumar (appellant), Narbada (appellant) and others. A case under Section 107/117 Cr. P. C. was also started against both the parties. Murlidhar and Phakkar and four persons of his party were bound down from one side and Kurwa, Narbada, Ram Kishun, Ram Kumar appellants and 12 other persons of the other party were bound down He further stated that sometime in the year 1962 eleven persons including Ram Kumar. Bhagwandin. Puswa, Narbada and Prasad were beaten and a criminal case was started against Murli, Phakkar and 17 others.
6. What was stated by Murlidhar and has been mentioned above will clearly show that there was good amount of ill-feeling between Phakkar and Murlidhar on the one side and Bhagwandin and members of his party on the other side.
7. All the accused persons pleaded not guilty. Out of the 10 accused persons, six, namely, Bhagwandin, Ram Autar, Ram Kishun, Ram Kumar, Chunbad and Shivbali belong to one and the same family. Chunbad and Shivbali are the sons of Bhagwandin, while the remaining three accused persons whose names have been mentioned above are his brothers. Two more accused persons, namely, Puswa and Prasad, are their relations while the remaining two, namely. Narbada and Bishambhar are alleged to be of their party. Their defence was that they had been falsely implicated due to enmity. They, however, did not dispute the facts which according to the prosecution case constituted the motive for committing the offence. Two witnesses were examined in defence. The purpose of the examination of Bhura Singh (D. W. 1) was to prove certain enmities between Bhagwandin on the one hand and Kuber Singh and Shyam Lal (P. Ws.) on the other. According to Bhura Singh one Ram Gharib, who resided at the house of Kuber Singh (P. W.), had been convicted for causing injuries to Ram Kumar (appellant). As regards Shyam Lal (P. W 4) the statement of Bhura Singh (D. W. 1) was that Narbada (appellant) along with one Tatti had abducted his sister-in-law. It was also said that he belonged to the party of the complainants. One more witness, namely. Dr. S.P. Jain (D. W. 2) was examined to prove that Bhagwandin was suffering from tuberculosis when he examined him on 23-4-1963. The occurrence is of 26-2-1963,
8. The learned Sessions Judge, after having considered the entire evidence on the record, arrived at the conclusion that the prosecution witnesses were reliable and Bhagwandincould also be present at the time of the occurrence to exhort other accused persons. He, therefore, convicted the three accused persons who were armed with firearms under Sections 148 I. P. C. and 307 I. P. C. He sentenced them to two years' rigorous imprisonment for the offence of rioting and to five years' rigorous imprisonment for attempting to commit murder, an offence punishable under Section 307 I. P. C. The remaining appellants were convicted under Section 147 I. P. C. and each sentenced to one year's rigorous imprisonment and also under Section 307/ 149 I. P. C., the sentence awarded to each under that provision of law being three years.' rigorous imprisonment All the sentences were ordered to run concurrently.
9. The learned Single Judge before whom this appeal was first listed for disposal noticed that there was some conflict of opinion in two decisions of this Court given by learned Single Judges on the point of presumption to be drawn from the use of firearms when the injury caused was not dangerous to life. We would discuss the case-law after having examined the relevant provisions of the Indian Penal Code.
10. Section 307 I. P. C. provides:
'Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
(b) A with the intention of causing the death of a child of tender years exposes it in a desert place. A has committed the offence defined by this section though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it, A has not vet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to punishment provided by the latter part of the first paragraph of this section.
(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping. A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section'.
11. It is clear from a perusal of illustration (c) that an offence under Section 307 I. P. C., can be made out only when (1) the accused fires the gun at the complainant, and (ii) be has done so with the intention of murdering the complainant. It follows that in case any one of these ingredients is lacking the offence under Section 307 I. P. C. would not be made out.
12. The same inference can be drawn from a perusal of Section 324 I. P. C. which reads as follows:
'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 explosive substance or by means of any substance which it is deleterious to the human body to inhale, 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'.
A person who causes hurt by means of any instrument for shooting can be punished only under Section 324 I. P. C. provided the case is covered by all the ingredients of that offence as defined in the section and no other major offence is made out from the facts and circumstances of the case.
13. It is, therefore, clear that the mere fact that a gun has beep used by an accused person for causing injuries to the complainant will not necessarily bring the case under Section 307 of the Indian Penal Code. There can be no presumption that the accused intended to cause the death of the complainant merely because he used a firearm to cause him hurt.
14. The intention of the accused person has to be established from either the nature of his act actually committed by him or from other surrounding circumstances. Where injury has actually been caused to the victim the prosecution, while attempting to establish that the real intention of the accused was to cause an injury of the nature which was sufficient in the ordinary course of nature to cause death or was so imminently dangerous that it could cause death, had further to establish the intention or knowledge of the accused as contemplated in Section 307 I. P. C. That in effect was the view taken by one of us in the case of Hakim Singh v. State. 1965 All LJ 282 when it was held that mere use of a country made pistol to shoot al a non-vital part of the body from a close range will not make out an offence under Section 307 I. P. C. In the ease of Badshah Singh v. State, AIR 1958 All 677 a learned single Judge of this Court reiterated the law on the subject as follows:
'For liability under Section 307 the prosecution has to prove the following facts; (1) that the accused did an act and (2) that the act was done with such intention or knowledge and under such circumstances that if he bythat act caused death he would be guilty of murder'.
The learned Judge further observed that
'If hurt is caused by such act. the offender becomes liable to transportation for life, otherwise the maximum term of imprisonment prescribed is 10 years It would thus appear that the section itself does not take into consideration the effect of the act of the accused as a measure of sentence to be imposed upon him'
15. We respectfully agree with the observations mentioned above It is well established that if the intention or necessary knowledge to cause death was there, it is immaterial whether or not any hurt has been caused to the victim, and the accused can be held liable for an offence under Section 307 I. P. C. even though no hurt was caused.
16. While applying the law to the farts to that case, the learned single Judge observed that inasmuch as the injury had been caused on the buttocks from a close range but the firing resulted only in superficial injuries due to defective ammunition the burden to prove that the accused persons knew that the ammunition was defective lay on the accused persons themselves. For that proposition he relied on Section 106 of the Indian Evidence Act.
17. The case of AIR 1958 All 677 is, therefore, clearly distinguishable from the facts of the present case. The gun had been fired from a close range causing superficial injuries to the buttocks because the ammunition used proved to be defective. Had the ammunition been of the normal standard pellets were bound to penetrate further, enter the abdomen and cause serious injuries to peritoneum and intestines. It was, therefore, possible to draw an inference in that case that the intention of the accused persons unless evidence was given on behalf of the accused persons to show that that was not the intention was to cause the death of the victim. In Hakim Singh's case, 1965 All LJ 282 the injuries had been caused from a close range only on non-vital parts of the body and, therefore, no presumption as could be drawn in Badshah Singh's case, AIR 1958 All 677 was possible.
18. We are, therefore, of the opinion that there is no apparent conflict in the two decisions mentioned above. Each case has been decided on its own facts and circumstances. The facts and circumstances of the two cases mentioned above were different. The same inference could not be drawn when the only common factor was the use of firearm.
19. The nature of burden of proof that lies on the prosecution was considered in the case of Sarju Prasad v. State of Bihar. AIR 1965 SC 843. It was held by the Supreme Court that where the accused person caused an injury to the complainant with a knife in a vital region but no vital organ was cut the act of the accused person would not by itself be sufficient to take his case out of the purview of Section 307 I. P. C. but in order to bring the offence home to the accused the prosecution must establish that his intention or knowledge was of one of the three kinds as mentioned in Section 300 I. P. C. It was further held that the state of mind of the accused had to be inferred from the surrounding circumstances, including motive which would be a relevant circumstance.
20. From what has been stated above it is abundantly clear that the mere circumstance that a knife had been used as a weapon of attack on vital part of the body (as in Sarju Prasad's case, AIR 1965 SC 843) or a firearm was used to cause injuries to the victim (vide Section 324 I. P. C.) would not be sufficient to establish that the accused had committed an offence punishable under Section 307 I. P. C. Further evidence has to be led by the prosecution to establish the intention of the accused to cause death or his knowledge as envisaged under Section 300 I. P. C. The burden of proof is on the prosecution and not on the accused.
21. In all criminal trials, for all offences punishable under the Indian Penal Code the burden of proof always lies on the prosecution to bring home the charge to the accused person. It may be that certain circumstances brought out by the defence may make the prosecution case doubtful. Even then that will be a case where the evidence read as a whole will reveal that the prosecution had failed to prove its case against the accused person beyond reasonable doubt.
22. Now we proceed to discuss the evidence led in the case against the present appellants. As mentioned already, the prosecution examined five eye-witnesses of the occurrence. Two of them, namely. Murlidhar and Phakkar (P. Ws. 1 and 2) had themselves received injuries, and their presence at the time of the occurrence could not be doubted. It is true that they were on inimical terms with Bhagwan Din and other appellants. However, that circumstance alone will not be sufficient to discredit their testimony. The occurrence had taken place when there was sufficient light. The two persons, who had been injured, must have seen their assailants. They were not likely to faslely implicate others and conceal the real offenders. The medical evidence supports their testimony inasmuch as (i) the injuries caused to them could have been caused with two or three shots fired from a firearm from a distance of about 18 paces; and (ii) the occurrence could have taken place at the time alleged by the prosecution.
23. When the relations between the two parties are strained it does sometimes happen that the members of the complainant's party include amongst the list of accused persons certain persons who may not have actually taken part in the assault or that they may exaggerate the event. The testimony of all the prosecution witnesses has to be carefully scrutinized to make sure whether it can be safely accepted in respect of all the events or against all the accused persons.
24. Kuber Singh (P. W. 3), Shyam Lal (P. W. 4) and Ram Kishun (P. W. 5) are allresidents of village Bisanda and had gone to ease themselves when they witnessed the occurrence. Kuber Singh (P. W. 3) was returning to his house after having eased himself and was at a distance of 50 to 60 paces from the place of occurrence when the shots were fired. All that could be suggested to him during the course of the cross-examination was that as he was a resident of Lachhmi Thok, as admitted by him, it was not necessary for him to go towards the side of Banha Talab where the occurrence took place for the purpose of answering the call of nature. That could be no reason for discarding his testimony. Shyam Lal (P. W. 4) had also gone to ease himself towards Banha Talab and was at a distance of 80-85 paces when he witnessed the occurrence. All that could be suggested to him during the course of the cross examination was that he was on inimical terms with Narbada (appellant) and it was for that reason that he was deposing against the appellants. The witness during the course of his cross examination admitted that his sister-in-law had been abducted by one Tutti. He, however, stated that Narbada had nothing to do with that abduction and he was not on inimical terms with Narbada (appellant). This witness too is reliable.
25. Ram Kishun (P. W. 5) was also returning from the side of Banha Talab when he saw the occurrence from a distance of 80 paces. He was cross examined at length but nothing could be brought out to show that he is not a reliable witness.
26. It has been contended by the learned counsel for the appellants that inasmuch as there were two parties in the village--one that of the complainant and the other of the accused persons--the probability that the witnesses were the sympathisers of the complainant could not be ruled out and, therefore, their testimony should not be believed. We see no force in this argument. However, as there was party feeling in the village, the testimony of the prosecution witnesses will have to be received with certain amount of caution.
27. The testimony of the prosecution witnesses as against the appellants who are said to have been wielding firearms is sufficiently corroborated by the medical evidence and other circumstances of the case, including the motive for the crime. However, their testimony on the point that Bhagwandin appellant had instigated other appellants to kill or Injure Phakkar and Murlidhar and about the presence of the accused persons who are alleged to be wielding lathis is not corroborated by other independent evidence. It is difficult to understand what was the occasion for such exhortation by Bhagwandin. The accused persons, who are said to be armed with firearms, were at first concealing their presence. They must have been there to use their firearms against Phakkar and Murlidhar. Further exhortation was, therefore, hardly necessary. It is significant to note that not a single lathi Injury was caused to any of the injured persons, although according to the prosecution ease itself the assailants were at a distance of only about 18 paces only from their victims.
28. In the circumstances the prosecution case that seven of the accused persons, namely, Bhagwandin, Ram Autar, Narbada, Bishambhar, Puswa, Prasad and Chunbad, who are alleged to be armed with lathis, had taken any part in the assault on Phakkar and Murlidhar is not established beyond reasonable doubt. All the seven appellants named above are, therefore, entitled to benefit of doubt and acquittal.
29. The testimony of the prosecutionwitnesses against Shiva Bali. Ram Kumar andRam Kishan does not suffer from any infirmity and is accepted.
30. The next point that remains for consideration is what offence, if any, was committed by the three appellants, namely. Shivbali. Ram Kumar and Ram Kishan, who were armed with firearms and had fired their guns or pistol at the time of the assault. All that could be established by the prosecution was that all the three appellants named above fired their guns or pistol in the direction of Phakkar and Murlidhar from a close range of about 18 paces at a time when their victims were trying to run away. The injuries caused are on the back part of both the thighs of both the victims, namely. Murlidhar and Phakkar. In other words, all the four injuries were caused on non-vital parts of the bodies of the victims. In the circumstances the probability that all the three appellants, namely, Shivbali. Ram Kumar and Ram Kishun, who were armed with firearms, did not intend to cause any injury on any vital part of the bodies of their victims cannot be ruled out. They could, therefore, in the circumstances of the case be convicted only under Section 324/34 I. P. C It is true that the three appellants, namely. Shivabali. Ram Kumar and Ram Kishun were charged only under Section 307 read with Section 149 I. P. C. However, the facts alleged in the charge are such that they could have been charged alternatively for the offence punishable under Section 324 read with Section 34 I. P C. All the three appellants can. therefore, be convicted and sentenced under Section 324 read with Section 34 I. P. C.
31. The appeal of Bhagwandin. Ram Autar, Narbada, Bishambar, Puswa, Prasad and Chunbad is allowed and their conviction and sentence under Sections 147 and 307/149 I. P C. are set aside. They are on bail. They need not surrender. Their bail bonds are discharged. The appeal so far as it relates to Shivbali. Ram Kumar and Ram Kishun is partly allowed. Their conviction and sentences under Sections 148. 307 and 307/149 I. P. C. are set aside and, instead, they are convicted under Section 324/34 I. P. C. and each sentenced to two years' rigorous imprisonment. They are on bail. They must surrender to their bail forthwith and serve out the sentence as now imposed on them.
32. We now proceed to dispose of the connected revision This offence was committed by Ram Kumar and Ram Kishun during theperiod for which they had been bound downto keep the peace. In default the two appellants named above and their sureties, namely,Jhamman and Raghubir Singh (the two suretiesof Ram Kumar) and Laxmi and Bhauwa (thetwo sureties of Ram Kishun) had bound themselves to forfeit a sum of Rs. 500 each to Government. Inasmuch as Ram Kumar and RamKishan are proved to have committed an offence under Section 324 read with Section 34 I. P. C.within the period of one year for which theyand their sureties had bound themselves, thereis no force in the revision application so far asRam Kumar, Ram Kishun, Jhamman, Raghubir Singh, Laxmi and Bhauwa are concernedand it is dismissed. Narbada and Puswa havebeen acquitted, and, therefore, they and theirsureties, namely, Kalua and Shiv Kumar (thesureties of Puswa) and Prahlad and Tej Bahadur Singh (the sureties of Narbada) could notbe held liable for any such default and theirbonds could not be forfeited The revision application so far as it relates to Narbada, Puswa,and their sureties. Kalua, Shiv Kumar, Prahladand Tej Bahadur Singh is allowed and theorder forfeiting their bonds is set aside. Incase any sum has already been recovered fromthem it shall be refundedAppeal and Revision arepartly allowed.