IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. :730 of 1996. Reserved on: 30.6.2010. Decided on : 10.8.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Tape Ram and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajinder Dogra, Addl. A.G. and Mr. Anil Jaswal, Dy.A.G. For respondent No.1 : Mr. Ravinder Thakur, Advocate, vice Mr. J. Vats, Advocate. For respondent No.2: Nemo. ___________________________________________________________ V.K. Sharma, J. The State is in appeal against the judgment dated 17.7.1996 of the learned Sessions Judge, Kinnaur at Rampur Bushehar, whereby the respondents herein, who shall hereinafter be referred to as the accused (denoted as A-1 and A-2), were tried for the offence under Section 307 read with Section 34 of the Indian Penal Code and were ultimately acquitted. 2. In brief, the case of the prosecution is that on 19.7.1993 at 7.50 p.m. information about the occurrence pertaining to this case was received at Police Post, Anni, vide DDR No. 11 (Ext. PW11/A) from Dr. Tejbir Singh (PW1), Medical Officer, RH, Anni to the effect that Bhag Chand (Complainant), who had suffered gun-shot wounds, had been brought to the hospital. Accordingly, PW11 Dy.S.P. (Retd.) Sant Ram, the then SDPO, 1 Whether reporters of the local papers may be allowed to see the judgment?Yes. 2 Anni proceeded to the hospital where he recorded statement Ext. PW6/A of the complainant, PW-6 Shri Bhag Chand, under Section 154 of the Code of Criminal Procedure, which is in Hindi and when translated into English is to the following effect: Stated that I am running a cloth shop at Chuai. My father owns land measuring about 4 bigha 7 biswa in village Chalaun which is at a distance of about 1 kilometer from Chuai, but Tabe Ram, son of Lachhi Ram (the accused) claims this land to be his own. My father had moved an application for demarcation of this land to the Naib Tehsildar, Anni pursuant to which demarcation was fixed for today. Shri Bhogi Ram, Field Kanungo and Shri Kanshi Ram, Circle Patwari along with Chowkidar had come to carry out the demarcation. My father, Shri Tayakhu Ram and other local residents, namely Bishan Dass, Narain Dass etc. were present on the spot. From the other side Tabe Ram and Lachhi Ram (both the accused) were also present. At about 5.45 p.m. when the Field Kanungo and Patwari were carrying out demarcation, in the meantime accused Tabe Ram all of a sudden brought a muzzle loading gun from his house and fired at me. Resultantly, three pallets hit me on the right side of my chest, one on the right arm on the muscle, one near right armpit and one on the right cheek leading to excessive bleeding which has since clotted.My shirt, jacket and underwear are extensively stained with blood. Accused Tabe Ram tried to kill me by making a murderous attack by firing at me with the muzzle loading gun. The occurrence has been witnessed by Field Kanungo, Shri Bhogi Ram, Shri Kanshi Ram, Circle Patwari, Jagdish, Peon, my father, Bishan Dass, Narain Dass and Dhan Raj etc. Action may be taken in the matter. 3 3. Consequently, FIR Ext. PW12/B was registered, under Section 307 IPC. The complainant, who was already admitted in the hospital, was got medically examined from PW1 Dr. Tejbir Singh, vide application Ext. PW11/B, who issued MLC Ext. PW1/A and referred him to IGMC, Shimla, where on admission on 20.7.1993, he was examined and treated by PW2 Dr. Anil Malhotra, vide case summary Ext. PW2/A. He was discharged on 23.7.1996, vide discharge slip Ext. PW2/B. 4. PW1 Dr. Tejbir Singh, who had initially examined the complainant at RH Anni, had found the following injuries on his person:- “1. Lacerated almost rounded wound with inverted edges blood oozing from its surface. Wound was ½ cm in diameter situated on the right side of face. 3 cm from nose. There was area of dirt black in colour around the wound with area of red coloured abrasion surrounding it. There was swelling around the wound. 2. Lacerated wound of almost same dimension with inverted edges and area of dirt and abrasion around it situated on the front of the chest at the level of second rib at the junction of sternum and ribs. Blood oozing from surface. 3. Lacerated wound of almost same dimension with inverted edges and area of dirt and abrasion around it situated in front of the chest. 7 cm medial to right mammary gland. There was blood oozing from its surface. 4. Lacerated wound oval in shape ½ cm x 1/3 cm with inverted edges and area of ecchymoses red in colour around it. There was swelling around it also and blood oozing out from its surface situated 5½ cm below and in front of the fold of axilla on right side of chest. 4 5. Lacerated wound oval in shape ½ cm x 1/3 cm with inverted edges and area of dirt and abrasion red in colour around it. There was blood oozing out from its surface. It was situated on the medial side of right arm 13 cm above medial epicandyle of humerous. 6. Lacerated wound oval in shape ½ cm x 1/3 cm with inverted edges and area of dirt and red colour in abrasion around it situated on the right side of the thorax 12 cm from right side mammary gland. Blood was oozing out from its surface.” 5. In the opinion of the medical expert, PW1 Dr. Tejbir Singh, the nature of injuries was grievous and probable duration was within 2 to 4 hours. The kind of weapon used was stated to be firearm. According to him, the injuries mentioned in MLC Ext. PW1/A were possible with gun Ext. P1. 6. At the time of admission of the complainant in IGMC, Shimla, PW2 Dr. Anil Malhotra had observed as under and noticed the following injuries on his person:- “The patient was fully conscious well oriented in time and space. Pulse was 78 per minute regular. Good volume. B.P. 120/80 mm of HG. Local examination showed multiple dressed wounds over face, front and right axilla of chest and right upper arm. On removing the dressing it showed following wounds: 1. Punctured wound right cheek sizing about 3 x 3 mm irregular margins with edema and there was no fresh bleeding. 2. Punctured wound right side chest at level of angle of louis about 3 cm from midline, margins irregular sizing 3 mm x 3 mm. No fresh blood was present. 3. Punctured wound front of chest right side 5th intercostals space, sizing 3 mm x 3 mm about 4 cm from midline with edema of margins. 5 4. Punctured wound over medial aspect of right upper arm about 3 mm x 3 mm margins irregular, edematous, no fresh bleeding. 5. Punctured wound in mid axillary line over the right side in 7th I.C. space wound size about 3 mm x 3 mm. No fresh blood was present. Margins were edematous.” 7. In the opinion of PW2 Dr. Anil Malhotra, the above injuries were possible with gun Ext. P1. However, these being superficial and not on the vital part of the body, were not sufficient to cause death. According to him, the injuries were simple in nature. 8. It was during investigation that the complainant PW-6 Bhag Chand produced his clothes, viz. shirt, jacket and underwear to the police, vide memo Ext. PW6/B. Application for demarcation of the land in dispute moved by Shri Tayakhu Ram, father of the complainant, which is Ext. PW7/A, Aks Shajra Ext. PW8/A and copy of Jamabandi for the year 1990-91 in respect of the said land, were also procured by the police. On 23.7.1993, the accused is said to have made disclosure statement Ext. PW9/A, under Section 27 of the Evidence Act disclosing that he had kept concealed one muzzle loading gun below his house near Paunti Nullah in a stony cave of which he has exclusive knowledge and can get the same recovered. Consequently, gun Ext. P1 is stated to have been got recovered by the accused on the same day i.e. 23.7.1993, vide memo Ext. PW9/C and sketch thereof was prepared which is Ext. PW9/B. Ext. PW12/A is the site plan of the place of recovery of gun Ext. P1. The place of occurrence is depicted by site plan Ext. PW11/C. Gun Ext. P1 was sent for forensic examination to the 6 Central forensic Science Laboratory, Chandigarh and report Ext. P-X was obtained. 9. On completion of investigation, a charge sheet under Section 307 IPC and Sections 25 and 27 of the Arms Act was laid against the accused and they were sent up to face trial. However, they were charged under Section 307 read with Section 34 IPC. They did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined 12 witnesses in all. 10. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. While admitting that the complainant was running a shop at Chuai, they feigned ignorance that his father had purchased some land in that village. Though it was denied for want of knowledge that father of the complainant had applied for demarcation, yet they admitted that Field Kanungo and Patwari had come to carry out the demarcation, but according to them, they started demarcating their (complainants’) land to which A-2 objected. While admitting that their house is situate adjoining to the land which the Field Kanungo had started demarcating, they asserted that the said land belongs to them. In essence, except this, the defence set up by the accused is that of total denial, innocence and false implication. In reply to question No.13 of the respective statements, they have stated as under: A-1 “I am innocent. I have not committed any offence. The case has been fabricated, just to dispossess me and my father from the land which we owned there.” A-2 “I am innocent. I have not committed any offence. The case has been fabricated, just to dispossess me and my son from the land which we owned there.” 7 However, they have not led any evidence in defence. 11. On conclusion of the trial, learned Court below proceeded to acquit both the accused, A-1 for lack of any evidence against him and A-2 by extending benefit of doubt in his favour. Being aggrieved, the State has challenged the impugned judgment dated 17.7.1996, which is supported by the accused. 12. We have heard the learned Additional Advocate General for the appellant-State and the learned counsel for the respondents-accused and perused the record. 13. Whereas, A-2 Lachhi Ram has been acquitted for lack of any evidence against him, the acquittal of A-1 Tape Ram has been based primarily on the grounds that the evidence reveals that there was a land dispute between the parties; the evidence led by the prosecution is full of discrepancies and embellishments; the alleged disclosure statement made by A-1 Tape Ram under Section 27 of the Arms Act and the consequent recovery of gun Ext. P1 being belated and of doubtful nature, cannot be safely relied upon; the prosecution failed to prove ownership of the gun and connect the accused with the same; it also failed to produce even a single local eye witness stated to be present on the spot at the time of the occurrence; though gun Ext. P1 was sent for forensic examination and report Ext. PX was received which revealed that the gun was in working order and had been fired through yet neither any pallets were recovered from the spot scene or during medical examination and treatment of the complainant nor sent for forensic examination to establish that the same were fired from the said gun and lastly that there was no intention on the part of A-1 Tape Ram to inflict injury on a vital part of the body which 8 could be dangerous to life of the complainant as all the injuries were superficial and simple in nature, as opined by PW2 Dr. Anil Malhotra. 14. As already noticed, FIR was registered under Section 307 IPC. The charge sheet was laid against Tape Ram under Section 307 IPC and Section 25 of the Arms Act and against A-2 Lachhi Ram under Sections 25 and 27 of the Arms Act. However, both the accused were charged under Section 307 read with Section 34 IPC. 15. Apparently, the final report against A-2 Lachhi Ram was submitted to the Court for trial for owning unlicensed single barrel muzzle loading (SBML) gun Ext. P1 and letting the same to be misused by his son A-1 Tape Ram in violation of the provisions of Sections 25 and 27 of the Arms Act. However, the record reveals that the investigating agency had not made any endeavour worth the name to establish that gun Ext. P1 belongs to either of the accused and that the same being unlicensed, was an illegal weapon, except the oral testimonies of complainant Bhag Chand as PW6, PW7 Shri Bhogi Ram, Field Kanungo, PW8 Shri Kanshi Ram, Patwari and PW10 Shri Setu Ram, which are also self contradictory inasmuch as whereas according to the first mentioned three witnesses, namely complainant Bhag Chand, Shri Bhogi Ram and Shri Kanshi Ram, A-1 Tape Ram had brought ‘his gun’ (emphasis supplied), meaning thereby that the gun belongs to the said accused, the testimony of PW10 Setu Ram is to the effect that A-2 Lachhi Ram is owner of the said gun. 16. Be it as it may, the fact remains that previous sanction of the District Magistrate as contemplated under Section 39 of the 9 Arms Act which is a condition precedent for institution of prosecution against the accused in respect of any offence under Section 3, such as, possession and use etc. of any firearm or ammunition without a licence, punishable under Sections 25 and 27 of the said Act, was not obtained. In the absence of previous sanction, none of the accused could have been charged for the above offences under the Arms Act. It being so, it appears that no such charge was framed against them. 17. Moreover, as rightly concluded by the learned Sessions Judge, there is not even an iota of evidence to fasten quilt against A-2 Lachhi Ram under Section 307 IPC with the aid of Section 34 IPC. Neither any overt act leading to the inference that he was acting in furtherance of the common intention of his co- accused A-1 Tape Ram was alleged against him by the complainant in his initial statement under Section 154 Cr.P.C. Ext. PW6/A nor he has stated anything about it while appearing in the Court as PW6. It is only PW7 Shri Bhogi Ram, Field Kanungo, who has stated that both the accused had gone to their house which is situate nearby the place of occurrence and thereafter, A-1 Tape Ram had brought his gun and fired at the complainant. However, this part of his testimony in itself is in stark contradiction to other evidence on record to which we shall advert in later part of this judgment. 18. Now, we shall take up the case of A-1 Tape Ram. According to the complainant, PW6 Bhag Chand, it was A-1 Tape Ram who had fired at him with gun Ext. P1 and as a result, he had suffered the aforesaid injuries. However, on a complete and harmonious reading of the evidence on record, the very genesis of 10 the prosecution case becomes highly doubtful. The reasons to arrive at this inference are set out hereinafter. 19. In statement under Section 154 Cr.P.C. Ext. PW6/A, it was not alleged that wife of A-2 Lachhi Ram had gone upwards and started pelting stones. However, according to PW7, Shri Bhogi Ram, Field Kanungo, she had gone upwards and started pelting stones. Likewise, PW8 Shri Kanshi Ram, Patwari has deposed that she had pelted stones on them on the road. 20. Further more, according to the complainant, it was A-1 Tape Ram, who was already present at the spot along with his father A-2 Lachhi Ram, had all of a sudden gone and brought the gun from his house and had fired at him. To the contrary, PW7 Shri Bhogi Ram, Field Kanungo has stated that both A-1 Tape Ram and A-2 Lachhi Ram had gone to their house, which is adjacent to the road and Tape Ram brought his gun and fired at Bhag Chand who was standing at some distance from the house of accused persons. 21. Another aspect of the matter which goes to the very root of the case and cannot be lightly overlooked is with regard to the distance from which A-1 Tape Ram had allegedly fired at the complainant. PW1 Dr. Tejbir Singh has stated during cross- examination that as per injuries, the distance between firearm and victim could be 1½ meter which comes to about 4 feet 10 inches or say 5 feet, which appears to be correct taking into consideration the fact that the area around the wounds was dirt black in colour, meaning thereby that the gun was fired from a close range. However, in utter contrast, as per the complainant the accused had fired at him from a distance of about 100 feet, as stated by him in the last lines of cross-examination at page 3 of his statement as 11 PW6. In the estimation of PW8 Shri Kanshi Ram, Patwari, the distance was about 10 meter or say 32½ feet. Thus, the ocular version does not fit into the expert evidence thereby causing a serious doubt on the very genesis of the prosecution case. 22. In view of the above, the pre-existing land dispute between the parties as is apparent even from the recitals in the initial statement made by the complainant to the police under Section 154 Cr.P.C. Ext. PW6/A that A-1 Tape Ram used to assert that the land in dispute belongs to him, though while making statement in the Court, he has denied this aspect pursuant to which he was confronted with his statement under Section 161 Cr.P.C. wherein it is so recorded, and the depositions of the complainant as PW6, PW7 Shri Bhogi Ram, Field Kanungo and PW10 Shri Setu Ram, assumes significance and the possibility that the true version about the occurrence has not come on record, cannot be ruled out altogether and more so, when PW7 Shri Bhogi Ram, Field Kanungo has stated that A-2 Lachhi Ram had asked him to provide him about 7 days’ time for getting the demarcation stayed, but Shri Tayakhu Ram, father of the complainant, was insisting that the demarcation be carried out and that both the accused came there and there was hot exchange between the parties. 23. Admittedly, some other local residents, namely Bishan Dass, Narain Dass and Dhan Raj etc. were also present on the spot at the time of the alleged occurrence as has been stated even by the complainant in statement Ext. PW6/A under Section 154 Cr.P.C., but though they were cited as witnesses, but none of them was examined. 12 24. Above all though the complainant has stated during cross-examination at page 2 of his statement in the end that the pallets are still in his body, except 2-3 which came out during treatment which were not handed over to the Doctor, yet neither those pallets were taken into possession by the police nor sent for forensic examination to establish that the same were fired from gun Ext. P1. 25. The recovery of gun Ext. P1 pursuant to the disclosure statement Ext. PW9/A allegedly made by A-1 Tape Ram also does not inspire much confidence taking into consideration the following statement made by recovery witness PW9 Shri Atma Ram, President, Gram Panchayat, Chuai:- “The gun was at a distance of about 25 feet from the place where the police was sitting and recorded the statement of the accused. The cave where the gun was kept is easily accessible and anybody can go there. Volunteered that there is no common path passing near the cave.” 26. Furthermore, whereas, A-1 Tape Ram was arrested on 21.7.1993, the alleged disclosure statement and the consequent recovery were made quite belatedly on 23.7.1993. 27. For the reasons stated hereinabove, we are satisfied that it shall not be safe to upset the verdict handed out by the learned trial Court acquitting the accused. The appeal is accordingly dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 10, 2010. (cr) 13