HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 273 of 2003 Decided on: 20.10.2010 Ram Parkash ……… Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Bhupender Ahuja, Advocate. For the respondent: Mr.Vikas Rathore, Deputy Advocate General. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment dated 10.6.2003 passed by the learned Sessions Judge, Hamirpur, vide which, the appellant was held guilty under Sections 307 and 333 of the IPC and Section 27 of the Arms Act, and he was convicted and sentenced as under: 307 IPC RI for a period of three years and to pay a fine of Rs.5,000/-. In default of payment of fine, to undergo RI for a further period of one year. 333 IPC RI for a period of two years and to pay a fine of Rs.3,000/-. In default of payment of fine, to undergo RI for a further period of six months. 27 of Arms Act RI for a period of three years and to pay a fine of Rs.3,000/-. In default of payment of fine, to undergo RI for a further period of six months. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated, the facts of the case are that on 2.7.2001, Smt.Kamla Devi, wife of the appellant, informed Police Station, Sadar, Hamirpur, H.P. telephonically that the appellant had fired a gunshot on her son Shiv Dutt in their house at Bhota Bazar, District Hamirpur, H.P. The information was reduced into writing vide rapat Rojnamcha No.49. On receipt of the said information, Sansar Chand, the then Inspector/SHO, Police Station, Sadar Hamirpur accompanied by other police officials left for the spot. He recorded the statements of the witnesses and registered the case. However, when the investigation was going on, the accused fired a gunshot from his gun on Constable Parmodh Singh, who was on duty at that time. Thereafter, the injured Parmodh Singh was medically examined and a case was registered. After investigation, the challan was filed before the learned Chief Judicial Magistrate, Hamirpur, H.P., who committed the case to the learned trial Court. The learned trial Court tried the appellant leading to his conviction and sentence, as detailed above. 3. I have heard Mr.Bhupender Ahuja, learned counsel for the appellant and Mr.Vikas Rathore, learned Deputy Advocate General, for the respondent, and have gone through the record of the case. 4. The submissions made by the learned counsel for the appellant were that the appellant had not fired at any particular person or any person, but had fired in the air and as such the ingredients of the offence under Section 307 of the IPC were not proved in the present case. It was also submitted that there are some contractions in regard to the - 3 - width of the hole from which the gunshot was fired and keeping in view the said contradictions and the fact that no blood was recovered from the spot, it was submitted that the guilty of the appellant was not established beyond any reasonable doubt to hold him guilty under Section 307 IPC. 5. On the other hand, the learned Deputy Advocate General for the State had supported the impugned judgment for the reasons given therein. 6. On appraisal of the record of the case, it is clear that there is statement of PW-17 Sansar Chand, the then SHO, Police Station Sadar, Hamirpur, in which he has clearly stated that on receipt of message from MHC Ramesh Chand that the accused Ram Parkash had fired a gunshot on his son at his house at Bhota, he proceeded to the spot alongwith HC Bhoomi Singh and Constable Neelam Kumar. The other police officials including Bachitar Singh, Parmodh Singh and Deep Chand met him, who had accompanied him in the police van to the spot. He also took one Pawan Kumar, a local resident, with him. On reaching the house, he found that family members of the accused were in the ground floor of the house and inside of a room and the accused was in the room of his house at the first floor. He recorded the statements of some witnesses and went upstairs and found that the accused was confining himself inside the room, which he had bolted from inside. He disclosed his identity and asked the accused to surrender but the accused stated that they should go away from his house, otherwise he would kill them also. The accused did not surrender himself. The room was cordoned off and the police officials were deputed in front of the room of the accused - 4 - where he was confining himself. PW-17 Sansar Chand further stated that Additional Superintendent of Police Jagdish Chand also reached there and they were assessing the situation for capturing the accused and in the meanwhile a gunshot was fired from upstairs. They went upstairs and found that a bullet had been fired which had hit the left side of stomach of Constable Parmodh Singh, who was lying in the verandah. He made a request in writing to the Medical Officer vide Ext.PW-6/A and sent the injured for medical examination and conducted the investigation in the case. The statement of PW- 17 Sansar Chand clearly proves the reason for the presence of the police in the house of the accused since they had received an information in regard to a gunshot from the wife of the appellant and were present in the house of the accused at the relevant time. 7. The said Constable Parmodh Singh, who received the injury, has been examined as PW-1, who clearly stated that he alongwith other police officials were present there and the accused was in his room and had bolted the door from inside. They went upstairs where the accused was confining himself. The SHO gave his identity and requested the accused to come out but the accused threatened to go from his house, otherwise he would kill them also. They remained standing in the verandah in front of the door of the room in which the accused was confining him and from a hole of the door, the accused fired a gunshot which hit him on the right side of stomach. On receiving injury, he fell on the floor of the verandah. Thereafter, he was taken to Zonal Hospital, Hamirpur for treatment and was got admitted there and then he - 5 - was referred to the PGI, Chandigarh. Nothing could be extracted in his cross examination to hold that he was not present at the spot or that the accused was not inside the room or that the accused had not fired the gunshot from the hole. 8. The statement of PW-1 Parmodh Singh stands duly corroborated, on all material particulars, from the statements of PW-2 Pawan Kumar, who had been taken by the Investigating Officer to the spot, PW-3 Jagdish Chand Sharma, Additional Superintendent of Police, who had also reached the spot as well as that of PW-4 Head Constable Bachiter Singh. There are no material contradictions or infirmities in the statements of these witnesses to hold that their statements cannot be relied upon. 9. The Medical Officer, who medically examined the injured, has been examined as PW-6, namely, Dr.P.C. Verma, who found the following injuries on the person of the injured: “1. There was lacerated wound on the right side of his abdomen in right lumber area with irregular margins. There was blackening and charring of surrounding skin. The size of the wound was 4cm x 3cm and it was oval shaped. There was fresh bleeding from the wound site and its colour was deep red. The depth of the wound was 10cm and edges were inverted. Hair were trapped in the wound of entrance. There was no exist wound. The clothes of the patient were also mixed with blood. No external injury was seen. For the above injury, X-ray abdomen was advised.” PW-6 Dr.P.C. Verma stated that he is also a Radiologist. X- rays were taken under his guidance and the skiagram is Ext.P- - 6 - 9 and report is Ext.PW-6/B. On X-ray, he found that the injury was grievous with fire arm. The probable duration of the injury was between 1/2 to 2 hours and the MLC was issued which is Ext.PW-6/C. He also stated that injury No.1 was grievous and dangerous to life. 10. PW-7 Dr.Shivika is the SMO, PGI, who had treated the injured in the PGI. The statements of the other prosecution witnesses are formal in nature. 11. The accused in his statement under Section 313 of the Cr.P.C. had taken a specific plea that the police party had broken the door with axe blows, entered the room and in a scuffle that took place, the gun which was loaded, went off. This plea has been taken by him in his statement under Section 313 of the Cr.P.C, but in cross examination of the main eye witnesses, as discussed above, nothing stand established that any scuffle had taken place or that the injury, in question, was sustained by PW-1 Parmodh Singh in a scuffle. Thus, the plea taken by the accused does not stand substantiated from the evidence and nothing has emerged from the cross examination of the main eye witnesses to hold that the injury was sustained by Constable Parmodh Singh, PW-1, in the manner as pleaded by the accused in his statement under Section 313 of the Cr.P.C. 12. Coming to the question that whether the hole was of 1” or 3”, as has come up in the statement of the complainant or PW-17 Sansar Chand, this contradiction is not very material and as such it does not affect the merits of the case. - 7 - 13. In regard to the plea that no blood was recovered from the spot, the Investigating Officer PW-17 Sansar Chand has not stated that he took in possession any blood or there is nothing on the record to show that the blood was lying at the spot and the same was not taken in possession. The blood, even if taken in possession, would have been in the nature of corroborative evidence and, therefore, non-taking of blood in possession does not affect the statements of the witnesses or the medical evidence. 14. I have considered the statements of the principal witnesses and there are no material contradictions or infirmities in their statements to hold that they cannot be relied upon. There is no motive for the complainant or the police personnel to falsely implicate the accused and there were no specific suggestions in this regard. Therefore, it is clear that the learned trial Court had rightly appreciated the evidence and had come to a right conclusion that the guilt of the appellant stands established. 15. Coming to the question that the guilt of the appellant was not established under Section 307 IPC, the learned counsel for the appellant had submitted that the gunshot was not aimed at any person and, therefore, it cannot be said that the ingredients of Section 307 of the IPC stand established. In support of his submission, he had placed reliance upon the decision in Hazara Singh and others versus State of Punjab, 1971 Supreme Court Cases (Cri.)237. In that case, conviction was under Section 307 IPC and it was held that it cannot be maintained since the shots which were stated to have been fired by the appellants were fired in - 8 - complete darkness. The observations were made by their Lordships in view of the facts of the said case. However, in the present case, the facts are very clear that the police party was standing outside the room of the appellant, had asked him to come out but he had given a threat to kill them, if they did not leave the place. The appellant was quite aware of the fact that the police officials were standing outside the room and he had not fired the gunshot in the air but on the person who may be standing outside his room. The observations made in para 6 of the above case are relevant and may be reproduced below: “6. ………………………………………………………..It is not possible to say form this evidence that Hazara Singh and Bhajan Singh fired the shots in the direction of the police party or at them, and the possibility that the shots were fired in the air cannot be excluded. Thus the conviction under Section 307 of Hazara Singh and Bhajan Singh and of the other appellants under Section 307, read with Section 149, Indian Penal Code, cannot be maintained and they must be acquitted of that charge. It is unfortunate that the judgment of the High Court is very sketchy and there is hardly any discussion or examination of all the above material facts.” 16. The gunshot was aimed at the police party and the appellant was quite aware of the fact that it was likely to hit the police officials standing outside the room and as such the ingredients of the offence under Section 307 IPC were fully proved and I accordingly uphold the conviction passed by the learned trial court holding the appellant guilty for the offence, as detailed above. The findings under Sections 333 IPC and 27 of the Arms Act were not - 9 - challenged by the learned counsel for the appellant. The learned trial Court had discussed the evidence in this regard in para 26 and other paras of the judgment and the findings recorded are liable to be affirmed under these Sections. 17. Coming to the question of sentence imposed upon the appellant, the learned counsel for the appellant has submitted that the appellant is presently of about 74 years and some lenient view may be taken and the sentence imposed upon him may be reduced accordingly. He had placed reliance upon the decision in Sunder Singh versus State of Rajasthan, 1989 Cri.L.J. 122, wherein the accused was an old man of 76 years at the time of appeal in Supreme Court and he had already undergone enough imprisonment. In view of his advanced age, the accused was sentenced to the period already undergone. However, it is not clear as to for how much period, the accused had already undergone the sentence. 18. In the present case, the age of the appellant, on the date when the charge was framed, was 63 years as on 1.11.2001. In his statement under Section 313 Cr.P.C., he had given his age as 64 years on 13.12.2002 and at present he may of the age of about 72 years. Keeping in view the facts of the case that the appellant fired the gunshot, without there being any sufficient reason on a Police Constable on duty, who was also injured, I am of the opinion that no leniency can be shown to the appellant for reducing the sentence. The learned trial Court has already taken pittance upon the appellant and sentenced him accordingly. Therefore, the sentence awarded to the appellant does not deserve to be reduced in view of the facts of the case and as such the - 10 - sentence imposed upon him under all the Sections is maintained. 19. In view of the above discussion, there is not merit in the appeal filed by the appellant, which his dismissed accordingly. Oct.20, 2010. (V.K. Ahuja), (TILAK) Judge