1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT Ram Dayal Vs. State of Raj. (S.B.CR. APPEAL NO. 385/1987) S.B.CRIMINAL APPEAL UNDER SECTION 374 (2) CODE OF CRIMINAL PRCEDURE AGAINST THE JUDGMENT DATED 15.9.1987 PASSED BY SHRI JYOTI PRASAD BANSAL R.H.J.S. SESSIONS JUDGE, KOTA IN SESSIONS CASE NO.317/1984. DATE OF JUDGMENT :::: 24th October, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.Sanjay Mehrishi for the appellant. Mr.B.K.Sharma, Public Prosecutor, for the State. BY THE COURT Challenge in this appeal is to the judgment dated 15th September, 1987 whereby the Sessions Judge, Kota convicted the accused appellant Ram Dayal in the offence under Section 307 of IPC and sentenced him to a Rigorous Imprisonment for five years and a fine of Rs.500/-; in default of payment of fine to further suffer Rigorous Imprisonment for six months. 2. The prosecution story is woven like this: That, in the intervening night of 6th and 7th June, 1984 at about 1.00 AM, the deceased Raghuvanshi was sleeping on a terrace built in a pole of his house on a cot. It is alleged that the accused Ram Dayal Vairagi fired at him with the gun while he was asleep. The gun fire hit on the knee of his left leg. It is averred that no sooner did the gun fire hit on his knee, he was suddenly awakened and saw Ram Dayal armed with a gun accompanied by Dhanna Lal, Bhagwan Singh Meena and Balram Meena. Having heard the noise of gun fire, Chhotu, 2 Kishan Gopal and Ramesh reached there who also witnessed all these four persons running. It is alleged that Ram Dayal was performing the Pooja in a public temple. He and Ram Dayal had an altercation in the last rainy season as a result of which he left performing the Pooja and on account of that animosity, he fired at him, while in sleep with an intention to kill him. PW/10 Ram Charan ASI of Police Station Sangod recorded Parcha Bayan Ex.P/11 of deceased Raghuvanshi whereupon he lodged the FIR Ex.P.12 in the offence under Section 307 of IPC and commenced investigation. 3. The Investigating Officer prepared the site plan Ex.P/1, got the complainant Raghuvanshi medically examined, recorded the statements of the witnesses acquainted with the facts and circumstances of the case under Section 161 of Cr.P.C., the injured Raghuvanshi during the investigation succumbed to his injuries on 14th of June 1984, arrested the accused Ram Dayal vide memo Ex.P/18, recovered a country made Deshi Katta along with one empty cartridge cover vide memo Ex.P/13 at the instance of the accused Ram Dayal and after usual investigation sent the accused persons namely Ram Dayal, Balram, Dhanna Lal and Bhagwan Singh for trial to the competent Court. 4. All the four accused persons namely Ram Dayal, Balram, Dhanna Lal and Bhagwan Singh were indicted for the offence under Section 302 and Section 302 read with Section 34 of IPC, who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as 14 witnesses. In their explanation under Section 313 of Cr.P.C, all the accused appellants claimed innocence. The accused persons examined two witnesses DW/1 Shrilal and DW/2 Ghasilal in defence. On completion of trial, the learned Sessions Judge Kota acquitted the accused 3 persons namely Balram, Dhannalal, and Bhagwan Singh in the offence under Section 302 read with Section 34 of IPC and convicted and sentenced only the appellant Ram Dayal in the offence under Section 307 of IPC as indicated hereinabove. 5. Heard the submissions advanced by the learned counsel for the appellant, learned Public Prosecutor appearing for the State and with their assistance scanned the material available on record. 6. The only crucial question springing for consideration in the instant appeal is that as to whether an offence under Section 307 of IPC is proved beyond doubt against the appellant Ram Dayal? 7. The learned counsel for the appellant has vociferously contended that the appellant Ram Dayal is said to have fired gun which hit the knee of left leg of Raghuvanshi. The appellant is not found to have caused any injury on the vital part of his body. Secondly, the appellant caused only a single fire arm injury on the knee of deceased. Had the appellant carried any intention to murder Raghuvanshi, he would have certainly aimed the gun at his chest or head or any vital part of the body since, that time, deceased Raghuvanshi was asleep and he would have repeated the gun shot also since there was none to stop him. These circumstances clearly reveal that albeit, the appellant Ram Dayal used a fire arm in causing an injury on the knee of the deceased yet the circumstances speak that the appellant had no intention to murder him. Learned counsel has cited Cr.L.R.(Raj.)1982, 293 and Cr.L.R. (Raj.) 461 in support thereof. 4 8. Per contra, the learned Public Prosecutor has submitted that the intention to murder Raghuvanshi is very well proved from the statements of PW/3 Mukesh and dying declaration of the deceased Raghuvanshi Ex.P/11 wherein the deceased deposed that the appellant had fired to kill him. He has further submitted that the impugned judgment of the lower Court is cogent, just and proper and the finding of conviction in the offence under Section 307 of IPC arrived at by the learned trial Court is well meritted which suffers from no infirmity and it calls for no intervention. 9. Vide injury report Ex.P/2, deceased Raghuvanshi sustained the following Ante mortem injury: Lacerated wound 1”X1-1/2”X variable depth, over left knee joint on front side” Raghuvanshi succumbed to this injury on 14th June 1984 and autopsy was conducted by PW/8 Dr.Naveen Saxena. In the opinion of Dr. Saxena, the cause of death of Raghuvanshi was asphyxia as a result of tetanus. 10. Dr. Saxena in his deposition has stated that he got the X-ray of left knee of Raghuvanshi done in his supervision and found multiple radio-opaque shadows of pallets in his knee and fracture of lower part of femur. He further stated that in spite of precaution, Raghuvanshi developed infection in his knee injury and fell prey to tetanus. Thereafter he was removed to an isolation ward on 13th June, 1984 and on 14th June, 1984 he died of Tetanus. Dr. Saxena also stated that had the deceased not fallen prey to Tetanus on account of infection in his knee injury, this very injury would have 5 never become the cause of his death. In his searching cross examination, he stated that this gun shot would have never caused the fracture of femur. He further deposed that the possibility of this fact that after sustaining a fire arm injury on the knee of his left leg, he would have probably endeavoured to walk and fallen and because of this fall he would have sustained the fracture in femur, cannot be ruled out. However, the injury sustained on the knee of left leg of Raghuvanshi was not found to be fatal by Dr. Saxena and it was not sufficient to cause his death in the ordinary course of nature. 11. In the case of Dhanna Vs. State of Raj. Reported in Cr.L.R.(Raj.) 1990, 461, this Court observed that Ram Ratan died not on account of the blow given by Dhanna but he died on account of rupture of left colan which according to the doctor was not the direct result of the external injury. Therefore, case under Section 304-II IPC was also not made out. From the admission of the accused appellant that he inflicted lathi blow on the leg of Dhanna, one blow on the stomach and also a slap on the face only a case under Section 323 IPC was clearly made out. 12. In the case of Geetam Vs. State of Raj. Reported in Cr.L.R.(raj.) 1982, 293, the appellant fired a single shot from his country made pistol at Mangla. Any vital part of the body of Mangla was not aimed at by the appellant, while firing the shot. If there had been any intention on the part of the appellant to kill Mangla or Beedha, he would have surely aimed at some vital part or parts of his body. The evidence of the medical witness clearly reveals that the pellets hit the right leg mid 6 1/3rd and right middle finger of right foot and the tip of right toe of Mangla. The prosecution could not establish beyond reasonable doubt that the appellant intended to kill Mangla or Bedha or intended to cause such injuries to them as were sufficient in the ordinary course of nature to cause death or had the necessary knowledge to do so. His conviction under Section 307 IPC cannot be upheld merely because he used fire arm and caused some injuries to non vital parts of the bodies of Mangla and Beedha. The doctor who medically examined him, clearly opined that this injury was not caused by a gun shot but was caused by some blunt object. The offence committed by the appellant falls within the ambit of Section 324 IPC. 13. In the instant appeal also the appellant Ram Dayal fired a single shot which hit on the knee of left leg of Raghuvanshi. No vital part of the body of Raghuvanshi was aimed at by the appellant while firing the shot. The appellant had sufficient time to fire at any vital part of the deceased when he was asleep. The appellant also did not repeat the gun shot. All these circumstances not only reflect that the appellant had no intention to commit murder of Raghuvanshi but also establish the knowledge that this injury was not going to cause his death. In the instant appeal, the conviction of the appellant under Section 307 of IPC cannot be sustained merely because he used fire arm and caused an injury on the non-vital part of his body. 14. The facts of the case of Geetam Vs. State of Raj. are similar to the facts of the instant appeal and I do not find any ground to deviate from the ratio decided in the case of Geetam Vs. State of Raj. 7 15. In the ultimate analysis, the prosecution could not establish beyond reasonable doubt that the appellant intended to kill Raghuvanshi or intended to cause such injuries to him as were sufficient in the ordinary course of nature to cause death or he had the necessary knowledge to do so. His conviction under Section 307 of IPC cannot be upheld merely because he used fire arm and caused an injury to the non-vital part of the body of Raghuvanshi. I am of the view that the offence committed by the appellant does not fall within the ambit of Section 307 of IPC and learned Sessions Judge went wrong in convicting him for the offence of attempt to commit murder punishable under Section 307 of IPC. 16. For these reasons, the criminal appeal is partly allowed and instead of Section 307 of IPC, the appellant Ramdayal is convicted in the offence under Section 324 of IPC and he is acquitted of the charge of Section 307 of IPC, accordingly. 17. The appellant has been in police custody w.e.f. 6 November, 1984 to 12 November, 1984 and in judicial custody w.e.f. 12 November, 1984 to 16 January, 1985 during the period of investigation and trial. Thereafter, the accused appellant has been in confinement w.e.f. 15 September, 1987 to 8 October, 1987 after the sentence awarded to him by the trial court. Thus, keeping in view the fact that the accused appellant has been facing the tiring trauma of criminal proceedings for the last 24 years, the end of justice shall be meted out if the accused appellant is sentenced to a period already undergone in confinement by him. The accused is 8 on bail. He need not surrender. His bail bonds stands discharged. 18. The appeal stands disposed of as indicated hereinabove. (MAHESH BHAGWATI),J PCG