IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 401 of 2005 with Cr. Appeal No.222 of 2005. Date of decision: October 6, 2009. 1. Cr. Appeal No.401 of 2005. Lakhbir Singh .. Appellant. Versus State of Himachal Pradesh .. Respondent. 2. Cr. Appeal No.222 of 2005. State of Himachal Pradesh .. Appellant Versus Lakhbir Singh & Others .. Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 No . 1. Cr. Appeal No.401 of 2005. For the Appellant : Mr. B.B. Vaid, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. 2. Cr. Appeal No. 222 of 2005. For the Appellant : Mr. P.M. Negi, Deputy Advocate General. For Respondents 1 & 3 : Mr. B.B.Vaid, Advocate. Surjit Singh, J (oral): By this judgment we are disposing of two appeals, titles and particulars of which are given 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - hereinabove, as both of them arise out of the same judgment, i.e., judgment dated 8th April, 2005 of learned Sessions Judge, Kullu. One appeal, i.e., Cr. Appeal No.401 of 2005 titled Lakhbir Singh vs. State of H.P. has been filed by one of the convicts, i.e. Lakhbir Singh, and the other appeal i.e. Cr. Appeal No.222 of 2005 titled State of H.P. vs. Lakhbir Singh and others, has been filed by the State of H.P., for enhancement of sentence awarded to all the convicts, by the trial Court. Case of the prosecution, which led to the trial of appellant Lakhbir Singh, hereinafter referred to accused and two other persons, namely Gurdeep Singh and Gurpreet Singh, hereinafter referred to as co- accused of Lakhbir Singh may be summed up thus. On 8th March, 2004, accused Lakhbir Singh accompanied by his co-accused Gurdeep Singh and Gurpreet Singh went to Manali by Car No.PB-08-AF-3489, which was driven by PW17 Tarsem Singh. They stayed in a hotel at Manali for the night. Next day, i.e. on 9th March, 2004, they hired a taxi bearing registration No.HP-01-1010, driven by PW3 Alam Chand (injured) for going to Manikaran. After visiting tourist spots at Manikaran, all the three accused started back in the same taxi. When they reached a place called Sarsari, one of the accused asked PW3 Alam - 3 - Chand to stop the vehicle. When the vehicle was stopped, all the three accused alighted from the taxi. After sometime, co-accused Gurpreet Singh boarded the taxi again. The other two persons, namely, Lakhbir Singh and Gurdeep Singh pulled PW3, Alam Chand, out of the taxi and threw him on the road. Then accused Gurpreet Singh took out a country made pistol (Katta) and fired a shot on the left side of the chest of Alam Chand. Shot caused a wound and the bullet embedded in the chest. The three accused then ran away in the aforesaid taxi of PW3, Alam Chand. After sometime, Alam Chand got up and proceeded towards Manikaran. When he reached near the Abadi of village Sarsari, he started shouting for help. His shouts attracted 5/6 persons. One of them was PW4 Hem Raj, Pradhan of the Panchayat. Alam Chand (PW3) narrated the incident to those 5/6 persons. Hem Raj (PW4) informed the police telephonically. Alam Chand was rushed to hospital at Kullu, where he was provided initial medical aid. His medical examination was also conducted at the said hospital and in the course of that examination, PW2 Dr. Mahesh Kapoor noticed the following wound:- “A ½ inch long open wound, ½ inch wide, elliptical in shape with irregular margins and - 4 - abrasions continuous with the edges of the wound. The wound is placed obliquely on the anterior chest wall in the second intercostals space with medial lower edge of the wound at the left lateral border of sternum. On palpation of the wound the tract of the wound is in the posterior lateral direction and the fracture edges of the rib are felt. There was fresh bleeding from the wound and escaping air bubbles were also observed from the wound.” Statement of Alam Chand was recorded by PW16 SI Dorje Ram, SHO, Police Station Kullu. The record of that statement is Ex.PW2/C. It was sent to the Police Station for registration of the case. Case was formally registered vide FIR Ex.PW14/A. Condition of Alam Chand (PW3) being serious, he was referred to PGI, where he was attended upon by PW1 Dr. S.Bala Murli. According to Dr. S.Bala Murli, the wound which was there on the chest of injured could have been caused by means of fire arm shot and was sufficient in the ordinary course of nature to cause death. The case summary prepared by the witness is Ex.PW1/A. Police, on being informed by PW4, Hem Raj, alerted all the Police Stations of places located on or around the roads leading to neighbouring States. Taxi No.HP-01-1010 was intercepted at Sunder Nagar by the - 5 - police. All the three accused were found traveling in that taxi. Two country made Pistols Exts.P14 and P15 were recovered from the car. One of these pistols had a live cartridge loaded in it while another had an empty cartridge. One empty cartridge was lying in the car, was also recovered. The Pistols and empty cartridges were sent for examination to the Ballistic Expert, whose report is Ex.PX/3. The Expert opined that both the Pistols were fit for firing and both the cartridges had been fired through one of those Pistols. Bullet recovered from the chest of PW3 Alam Chand, after surgery, was also sent to Ballistic Expert, who opined that it could have been part of either of the two recovered empties. On completion of investigation, all the three accused were challaned in the court of concerned Judicial Magistrate, who after complying with the requirement of Section 207 Cr.P.C. committed the case to the Sessions Court. All the three accused were charged with offences under Sections 307, 392, 397 read with Section 34 of the Indian Penal Code and also Section 25 of the Arms Act and on their pleading not guilty they were put on trial. - 6 - Prosecution examined the two doctors, injured Alam Chand (PW3), Pradhan of the Panchayat, Sarsari PW4 Hem Raj, Tarsem Singh PW17, the driver of the car by which the accused traveling from their village of Jallandhar District of Punjab State to Manali on 8th March, 2004 and Brijesh Sood PW11, Inspector, the then SHO, Police Station Sunder Nagar, who intercepted the taxi, arrested the accused, recovered the country made pistols, cartridges and two empties, besides several other witnesses, whose testimony is of formal nature, to prove the charge. Accused took the plea that the country made pistols Exts.P14 and P15 recovered from the taxi did not belong to them, but to PW3 Alam Chand, the owner of the taxi and that when they were travelling by the taxi on their way back from Manikaran, Alam Chand started driving the taxi very fast, to which they objected, but Alam Chand told that he had to pick up some other passengers from Manali, who had already booked his taxi and as he was getting late, he could not afford to drive slow. According to them, PW3 Alam Chand demanded extra money, in case the taxi was to be driven slow and also used rude and abusive language. Alam Chand, then, according to the accused, threatened to shoot them with - 7 - country made pistols, which he was carrying in the taxi. They pleaded that they snatched the pistols from PW3 Alam Chand and in that process, on of the pistols went off and the shot hit Alam Chand. It is stated that then they left the scene in the taxi of PW3 Alam Chand as they feared that local people might assault them and that their intention was to report the matter to the police. They stated that they were going to Police Station Sunder Nagar, when the police intercepted them at Lalit Chowk, Sunder Nagar. Trial court has disbelieved the defence version and convicted all the three accused of the offences they were charged with and sentenced them as follows:- Offence under Section Sentence awarded. Section 307 IPC Rigorous Imprisonment for 7 years and fine of Rs.10,000/- each. Section 392 IPC Rigorous Imprisonment for 7 years and fine of Rs.10,000/- each. Section 397 IPC Rigorous Imprisonment for 7 years each. Section 25 of Arms Act Rigorous Imprisonment for 2 years and fine of Rs.5,000/- each. - 8 - It is only the appellant Lakhbir Singh, who has challenged his conviction and sentence by filing Criminal Appeal No.402 of 2005. Others have not challenged their conviction and sentence. State has sought enhancement of sentence by filing separate appeal, i.e. Cr. Appeal No.222 of 2005. We have heard the learned counsel for appellant Lakhbir Singh and learned Deputy Advocate General. It is fairly conceded by the learned counsel for appellant Lakhbir Singh that in view of the defence plea, it stands established that Lakhbir Singh and his co-accused Gurdeep Singh and Gurpreet Singh had travelled by taxi of PW3, Alam Chand, on 9th March, 2004 from Manali to Manikaran and they started back in the same taxi from Manikaran in the evening. He however, submits that the defence plea is probablised by the evidence on record. We do not find any merit in the submission that the defence plea is probablised by the evidence on record. PW3 Alam Chand denied that he was having country made pistols with him. As per suggestion thrown to him, he had only one country made pistol with him, but PW11 Brijesh Sood recovered two such weapons, when he intercepted the accused at Sunder Nagar, who were - 9 - fleeing in the taxi of PW3 Alam Chand. That implies that according to the accused, only one pistol belonged to PW3 Alam Chand. If it is so, they have offered no explanation with respect to the other pistol. Defence plea is improbablised by the fact that the accused fled from the spot in the taxi of PW3 Alam Chand around 6.30 in the evening. They did not go to any Police Station. They were intercepted by the police at Sunder Nagar, a place at a distance of not less than 70 K.M from the place of occurrence. In between the place of incident and Sunder Nagar, there are many Police Posts, Police Stations and police barriers. First was the Police Post, Bhunter and then Police Post Pandoh, then Police Station. Mandi, next was Police Station, Balh and the Police Station, Sunder Nagar was the last of all. Had the accused run away from the spot with the intention of reporting the matter or surrendering to the police, as stated by them, they would have not crossed so many Police Posts and Police Stations. In view of the above stated position, we find no merit in the appeal of Lakhbir Singh convict. The same is, therefore, dismissed. Appellant Lakhbir Singh and his other two co- convicts were in the age group of 18/19 years when the - 10 - incident took place. Looking to their young age, we do not consider that the sentence awarded by the trial court needs to be enhanced. Hence, appeal filed by the State of H.P. is dismissed. Both the appeals stand disposed of. ( Surjit Singh ), J. October 6, 2009. ( Surinder Singh ), J. (Pds)