1 S.B.Criminal Apeal No.61/89. (Hamira & Others v. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. HAMIRA & OTHERS. V. THE STATE OF RAJASTHAN. S. B. CRIMINAL APPEAL NO.61/89, against the judgment dated 14.2.89 passed by the Mr. R.C.Jatav, RHJS, Sessions Judge, Merta, in Sessions Case No.15/82. DATE OF JUDGMENT ::: 17/11/2009 HON'BLE MR. JUSTICE C. M. TOTLA Mr. Vikas Bijarnia, for Appellants. Mr. Panney Singh, PP, for the State. BY THE COURT: Challenged is appellants' conviction for the offences of Section 3 read with Sections 25 & 27 Arms Act recorded and sentence awarded of six months rigorous imprisonment and fine Rs.100/- in Sessions Case No.15/82 vide judgment dated 14.2.89 before the Court of Sessions Judge, Merta. Heard learned counsel for the appellants and learned Public Prosecutor. Brief alleged facts and events, leading to appellants' conviction and sentence – per prosecution – are that on 11.8.81, SHO PW 24 beingt informed by medical officer of five injured being admitted in hospital, arrived at hospital and recorded statement Ex.P2 of Hira Ram PW5 who narrated that on that day at around 9 am he and Ratna Ram, Chimna, 2 S.B.Criminal Apeal No.61/89. (Hamira & Others v. State) Dharu, Munna and Dhannu were grazing their sheep herds were on hilly forest – then came Satyadan, Ghisa, Mangu and their women – Satyadan having a naked sword in his hand and these persons tried to take away their herds and as Ratna prevented them, women beat him so Hira Ram also went nearby – and Satyadan with intent to kill him inflicted blows of sword, causing injuries at head, finger and shoulder so Hira Ram and Ratna PW11 ran away. Hirla Ram in his statement stated that after the above incident, at about 12 noon from village came Pukha Ram, Hari Ram, Ramsukh, Moda Ram to console and advise above persons who when were returning and they were with them then towards and after then, came there, armed with guns, Hamira, Rugna, Gheesa, Satyadan, Chanda, Mangiya, Harmana, Chimna, Jansanga and other relatives armed with guns and threatening them to fire shots, if any one came nealr them. Hira Ram further stated that the above persons from about distance of 15-20 steps, fired at them with guns – first fire shot by Hamira Ram to Pukha Ram struck at head of Pukha Ram who fell there and died – then others fired at right buttock of Hira Ram injury caused by pellets of fire by Satyadan. Incident seen by Doonga Ram, Harlal, Sannu etc. as they coming in tractor and above persons ran away. On above statement, FIR No.122/81 Ex.P24 registered for the offences of Sections 302, 307, 147, 148, 149 IPC . In course of investigation SHO PW4, inspecting place of occurrence, prepared memos Exs. P25 and P26. Injury reports or Ramsukh, Chimna, Mana Ram, Hira Ram and Dhakar are Exs. P3 to P8 and X-ray reports Exs.P10 and P11, plates P19 to P22. Blood stained clothes of injured seized. Appellants and others arrested and on their information, at their instances of all appellants individually, recovered are guns – memos of arrest, information, recoveries are Exs. P34 to P45. After investigation, obtaining 3 S.B.Criminal Apeal No.61/89. (Hamira & Others v. State) sanction, submitted charge-sheet. Appellant and six others charged for the offences of Sections 147, 148, 304, 302, 324 read with Section 149 IPC and appellants also charged for the offence of Section 25 IPC and Section 27 of Arms Act, claimed trial. Learned Sessions Judge convicting for the offences of Arms Act and sentenced as above. Appellant and also six others are acquitted of the offences of IPC. Learned counsel confining his arguments for quantum of sentence stressed that appellants and other accused all are acquitted of the charges of Sections 302, 307, 326, 148 and 149 IPC and it is a clear case of exercise of right of private defence. Contended that inferences of the learned Sessions Judge are also on these lines. Submitted that some of the appellants and also their wives injured and each of the appellants have remained imprisoned a little above two months - recovered gun is “topidar” and M.L.guns so sentence already undergone sufficient and shall meet ends of justice. Submitted that about 30 years have elapsed to the incident. Learned Public Prosecutor submitted that in the incident, fire arms were used and recovery of guns on the information and at the instance of each appellants is proved. Submitted that in the incident, several shots fired causing injuries. Had a careful look at the judgment assailed, evidence and record. It appears that appellant and six others were charged for the offence in relation to death of Pukha Ram and injuries caused by fire arms and causing grievous injuries by fire and other arms to Ramsukh. Modaram and 5-6 others. It also surfaces that cross-case FIR No.123/81 Ex.D20 was also registered on same day on complaint of appellant Hamira Ram, Hirla 4 S.B.Criminal Apeal No.61/89. (Hamira & Others v. State) Ram and others for the offence of Sections 307, 436, 379, 336, 323, 147, 148 and 149 IPC. On record and exhibited are injury and x-ray reports Exs. D23 to D26. Total 11 injuries, including fracture of left fibula, right scapular region, 5th metacarpal right hand and left little finger sustained to Shaktidan with a stitched 8 cm long wound on parietal region. Banaram s/o. Chainaram also had five injuries, including fracture of right ulna 5 cm long stitched wound on right shoulder and also a stitched wound at left arm. Investigating Officer PW 24 in cross-examination straightly admits of cross-case and also inspection of place of occurrence. Per evidence of IO SHO PW 24 is proved that at the place of that occurrence that at house of appellants were clear blood marks, some household articles burnt and some roof slabs etc. broken or demolished. There also were several signs at floor and walls of stone throwings – memos prepared are also exhibited. Guns recovered are ML guns. Taking all the established elements together, including alleged placed of occurrence and injuries and as incident is of the year, 1981 and about 20 years have elapsed since conviction and whereas appellants remained in custody for about 73 days, in the opinion of the Court, sentence of period already undergone shall meet ends of justice so upholding appellants' conviction under Ss. 25 & 27 Arms Act, their sentence of imprisonment is altered and reduced to the period already undergone. Appellants to deposit fine, if not already deposited, by December 15, 09 before the trial Court as imposed vide judgment assailed. Appeal partly allowed reducing sentence as above. (C. M. TOTLA), J. scd