( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 143 OF 1998 Suresh s/o. Ashruba Dhakne .. Appellant Age. 37 years, Occ. Service, R/o. Jalna, Police Line, Dist. Jalna. Versus The State of Maharashtra .. Respondent Smt. S.S. Jadhav, Advocate for the appellant. Mr. N.H. Borade, A.P.P. for respondent/State. CORAM : V.R. KINGAONKAR,J. DATED : 08.12.2010 ORAL JUDGMENT :- 1. This appeal arises out of judgment rendered by learned Sessions Judge, Jalna, in Sessions Case No. 69 of 1994, whereby the appellant has been convicted for offence crap143.98 ( 2 ) punishable under Section 307 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for six months. He is also held guilty for offence under Section 332 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/-, in default, to suffer rigorous imprisonment for three months. 2. The appellant was member of Constabulary and was attached to Tembhurni Police Station in Jalna district at the relevant time. The injured P.W.1 – Ramchandra Rode was then working as Police Head Constable and was P.S.O. (Police Station Officer) at Tembhurni Police Station in the night between 12th and 13th September, 1993. Since, there was one accused detained in the police lock-up, P.S.O. P.W.- Ramchandra Rode assigned guard duty to the appellant and another constable, by name, Rathod. The appellant, however, did not attend the duty as night guard at the scheduled time. i.e. 8 p.m. He came late to the police station and approached Police Constable – Sanap, somewhere around 11 p.m. crap143.98 ( 3 ) He ventilated grievance that Constable Sanap must have managed to assign guard duty to him. Thereupon Constable Sanap, who was assigned wireless set duty, told appellant to approach P.S.O. and talk to him about the grievance. The appellant then approached P.S.O. P.W.-Ramchandra Rode and told that the latter was responsible to assign guard duty to him. The appellant asked P.W.-Ramchandra Rode to give him rifle and bullets. P.W.-Ramchandra Rode handed him 303 rifle and 10 rounds of bullets. Thereafter, P.W.-Ramchandra Rode turned about to take out a register from the cupboard in order to enter transaction of handing over rifle and ten rounds to the appellant, all of a sudden he received a piercing bullet shot injury on his left thigh. The bullet was fired by the appellant and had entered left thigh of P.W.-Ramchandra Rode from one side and exited from another side. On hearing the sound of firing – Constables Rathod and Sanap rushed to the room where the appellant and P.S.O. P.W.- Ramchandra Rode were present. They noticed that P.W.- Ramchandra Rode was lying on the ground in pool of blood. Immediately, P.W.-Ramchandra Rode narrated to them that the appellant had fired at him. The incident was reported to crap143.98 ( 4 ) A.S.I. Naval. Injured P.W.-Ramchandra Rode was rushed to the Primary Health Center. By that time P.S.I. Darade reached to the Primary Health Center and attempted to record statement of injured P.W.-Ramchandra Rode. However, P.W.-Ramchandra Rode did not give any statement at that time. The injured was referred to Civil Hospital, Jalna for further treatment. The 303 rifle, 10 rounds and remaining rounds of bullets were taken into custody from possession of the appellant. On basis of the recorded statement of P.W.-Ramchandra Rode, the F.I.R. was registered. The spot panchanama was drawn. The appellant was arrested on next day. On basis of the material gathered during the course of investigation, he was charge- sheeted for the offence punishable under section 307 of the Indian Penal Code. 3. The appellant pleaded not guilty to the charge framed vide Exh.12. He denied truth into the accusation. According to him, he was assigned duty on 11.09.1993 and it was continued. He asserted that injured P.W.-Ramchandra Rode, Head Constable, approached him at the relevant time with a rifle in his hand. He further narrated that P.W. - crap143.98 ( 5 ) Ramchandra Rode was under influence of liquor and pointed rifle at him by putting barrel on his chest. He further stated that he was scared and all of a sudden, while he and P.W.-Ramchandra Rode indulged in a scuffle, there took place accidental firing of the rifle which resulted into injury on the thigh of P.W.-Ramchandra Rode. According to him, P.W.- Ramchandra Rode later-on fabricated the complaint on next day. Hence, he urged for acquittal from the charge. 4. Heard learned advocate for the appellant and learned A.P.P. Perused record and proceedings with their assistance. 5. The only question of significance, which requires determination in this appeal is, whether the appellant intentionally fired a gun shot on thigh of P.W.-Ramchandra Rode or it was an accidental fire, as claimed by him and whether the alleged offence would come within the ambit of Section 307 of the Indian Penal Code. 6. At the outset, let it be noted the fact that P.W.- crap143.98 ( 6 ) Ramchandra Rode received bullet injury on the left thigh in the relevant evening. The appellant had done duty on the earlier day too. It is conspicuous from the version of P.W. 4-Kishav Sanap (P.C.B. No.955) that the appellant along with Constable Rathod were assigned the guard duty at the guard room in the police station. His version purports to show that the appellant had initially approached him and enquired as to why he was given guard duty. His version further purports to show that he advised the appellant to talk to the P.S.O. and thereafter the appellant went towards P.W.- Ramchandra Rode, who was then working as P.S.O. Soon thereafter P.W. Keshav Sanap heard sound of firing accompanied by screams of P.W.-Ramchandra Rode, who was saying “save me, save me, Dhakne fired at me”. 7. The version of P.W. Keshav Sanap is significant for two reasons. He does not claim to be eye witness to the incident. He has no animus against the appellant. He categorically stated that injured P.W.-Ramchandra Rode immediately spelt out name of the appellant as the person who fired at him. This conduct of P.W.-Ramchandra Rode is most crap143.98 ( 7 ) significant. It is admissible in view of the fact that his immediate utterances are part of same transaction and would amount of res-gestate. He denied the suggestion that the appellant was not named as the assailant by injured P.W.- Ramchandra Rode. 8. Perusal of testimony of P.W.-Ramchandra Rode reveals that the appellant was annoyed due to assignment of the guard duty in the relevant night. No only that, he had come late to attend duty, but had accused that P.W.- Ramchandra Rode was responsible to give him guard duty. His version purports to show that son after he handed over 303 rifle and 10 rounds to the appellant and while he was facing towards cupboard, all of a sudden he sustained bullet injury on the left thigh. He immediately fell down on the ground and started raising shouts. His version purports to show that Police Constable Rathod and Sanap came towards him. He corroborated F.I.R. (Exh.26). His cross-examination reveals that on earlier day i.e. 11.09.1993, the guard duty was assigned to the appellant from 8 p.m. to 8 a.m. He admits that guard duty is required to be changed after span of 24 crap143.98 ( 8 ) hours. He admits that he gathered that guard duty was assigned to the appellant when he was not present at the police station to accept such duty. That assignment was given by A.S.I. Naval and not by P.W.-Ramchandra Rode. He admitted that during his supplementary statement, he had stated that the appellant had put rifle on the table which was fired at him. He admitted that the appellant was on guard duty for 24 hours before the assignment of such similar guard duty to him in the evening of 12th September, 1993. He denied the suggestion that he had loaded the rifle and forced the appellant to do the guard duty. He further denied the suggestion that during course of scuffle between himself and the appellant, there was mis-firing of the rifle and as such he received the injury. 9. There is no tangible material on record to infer that P.W.-Ramchandra Rode was in drunken condition and had pointed 303 rifle at the appellant in order to force him to do guard duty. The defence of scuffle between them is not corroborated by any other material. The version of P.W.2- Devidas Rathod reveals that the appellant went to P.W.- crap143.98 ( 9 ) Ramchandra Rode and demanded the rifle and rounds of bullets. Immediately, after the conversation between the appellant and P.W.-Ramchandra Rode, he heard sound of firing and as such rushed to the room, where he noticed P.W. Ramchandra Rode lying on the ground. Immediately, P.W.-Ramchandra Rode was found saying “save me, save me, take me to hospital, Dhakne fired at me”. Thus, it is explicit that immediately injured P.W.-Ramchandra Rode named the appellant as the person who had fired gun shot at him. Nothing of much importance could be gathered inspite of searching cross-examination of P.W.- Devidas Rathod. 10. The evidence on record sufficiently proved that the story of the prosecution is well founded. It is true, no doubt, that the injured i.e. P.W.-Ramchandra Rode, did not immediately give his statement, when P.W.7-P.S.I. Darade contacted him at the Primary Health Center. However, P.W.7 – P.S.I. Darade states that it was due to medical advice that he could not record statement of P.W.-Ramchandra Rode in that night. The conduct of P.W.-Ramchandra Rode cannot be regarded as unnatural. For, he was frightened due to the crap143.98 ( 10 ) sudden firing of the bullet on his person. He was seriously injured. The blood was gushing from the place of bullet wound. He was fired from a short distance. He was perplexed and panicked due to the sudden assault. Considering the immediate conduct of P.W.-Ramchandra Rode, it will have to be said that when he had cried out the name of the appellant as his assailant, failure to immediately record his statement in writing by itself cannot be regarded as a serious flaw. 11. It need not be reiterated that except bald version of the appellant, there is no corroboration to the story of scuffle between him and injured P.W.-Ramchandra Rode. In- fact, if such a scuffle would have occurred, other police constables might have heard about the scuffle. There is sufficient corroboration to the version of P.W.-Ramchandra Rode regarding sudden firing of gun shot on him by the appellant. My attention was invited to the fact that P.W.7- P.S.I. Darade noticed that the rifle was found on the table when he went to the police station. It does not, however, go to show that the mis-firing had taken place while handing over the rifle to the appellant across the table. The defence crap143.98 ( 11 ) story is highly improbable in the teeth of the eye-witness account available. The learned Sessions Judge rightly held, therefore, that the appellant fired gun shot at injured P.W. - Ramchandra Rode in the relevant evening. 12. Now, I shall consider whether the proved facts would constitute the offence under Section 307 of the Indian Penal Code. There was no previous enmity between the appellant and P.W.-Ramchandra Rode. The grouse of the appellant was that he was being assigned guard duty in continuation of the earlier guard duty. The appellant was annoyed due to continuous working on guard duty. There was no prelude to the incident of firing. The appellant had not verbally threatened P.W.-Ramchandra Rode that he will eliminate the latter. The circumstances do not show that intention of the appellant was to cause death of P.W.- Ramchandra Rode. The most important circumstance is that the gun shot was directed on the lower extremity of P.W.- Ramchandra Rode and not any vital part of his body. It must be inferred, therefore, that the intention of the appellant was to teach a lesson to P.W.-Ramchandra Rode to whom he held crap143.98 ( 12 ) responsible for continuous assignment of guard duty to him and to give a signals to others that the constable may revolt, if he is pushed to the wall. Under these circumstances, the offence proved against the appellant will come within ambit of Section 326 of the Indian Penal Code and not under Section 307 of the Indian Penal Code. 13. Coming to the question of substantive sentence, it is important to note that the learned Sessions Judge did not ascribe any particular reason as to why the substantive sentence of five years was awarded to the appellant. He observed that the right punishment may bring administration to criminal justice to ridicule. This observation seems to be out of context because the appellant is not hardened criminal as such. The incident is out-come of sudden and impulsive reaction of the appellant. It was due to continuous strain of the guard duty that the appellant was annoyed. He had lost control over himself. These aspects are not properly appreciated by the learned Sessions Judge. It is a common knowledge that excessive strain on the Constabulary is sometime counter-productive. The mental crap143.98 ( 13 ) stress caused to the appellant, on account of continuity of guard duty, perhaps triggered his spontaneous reaction and as such some sympathetic view is required to be taken while awarding the substantive sentence to the appellant. 14. Taking overall view of the matter, the appeal is partly allowed. The conviction and sentence awarded to the appellant for offence punishable under Section 307 of the Indian Penal Code is set aside. Instead, he is convicted for offence punishable under Section 326 of the Indian Penal Code and is sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 5000/- (Rupees Five Thousand Only), in default, to suffer simple imprisonment for one year more. The remaining part of final order rendered by the Sessions Court is maintained, maintaining the conviction and sentence for offence punishable under Section 332 of the Indian Penal Code. The appellant shall surrender to the bail within a period of three weeks and if he will not surrender within given period, learned Sessions Judge shall issue arrest warrant and make arrangement for the sufferance of the remaining substantive sentence by giving due set off for the crap143.98 ( 14 ) period which the appellant had already undergone in detention during the course of the investigation and the trial. [V.R. KINGAONKAR,J.] snk/2010/DEC10/crap143.98 crap143.98