IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 276 of 2004. Judgment reserved on : 02.11.2010. Decided on: January 6, 2011 __________________________________________________________ Om Parkash. …. Appellant. Versus State of Himachal Pradesh. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Jagdish Vats, Advocate. For the respondent : Mr.A.K.Bansal, Addl. Advocate General. _______________________________________________________ SURINDER SINGH,J: 1. The present appeal has been directed by the accused, who was convicted in Sessions Case No.44-P/2003 decided on 15/29-6-2004 by the learned trial Court, for the offence punishable under Section 307 of the Indian Penal Code and Section 27 of the Indian Arms Act, whereby he has been sentenced to undergo rigorous imprisonment for five years and to pay fine of `25,000/- under Section 307 of the Indian Penal Code and rigorous imprisonment for a period of Whether reporters of the Local papers are allowed to see the judgment? - 2 - two years and fine of `5,000/- under Section 27 of the Indian Arms Act, with default clauses. It was also ordered that in case the amount of fine is realized, the same be paid as compensation to the complainant for the pain and agony suffered by him. As such, the convict-appellant assailed his conviction and sentence by means of the present appeal. 2. In short, the prosecution case can be stated thus. PW13 injured complainant Parshottam Singh and appellant, hereinafter to be referred as ‘the accused’, are residing in the same village having their houses in front of each other. The accused harboured grudge against him. (ii) It is alleged that on 11.6.2000, at about 10 p.m., said Parshottam Singh had taken meals in his house and after tethering his ox, was going to his room to sleep. The accused started abusing and challenging the complainant to come out. When he opened the door, came out and while coming down from his stair-case, the accused fired a shot from his muzzle - 3 - loading gun from a distance of about three meters. The pallets hit him on the lower portion of his stomach. PW14 Mast Ram and his wife PW15 Asha Devi were the eye witnesses. On receiving pallet injuries, he cried and fell down. (iii) On hearing the cries, the villagers came there and removed the complainant to Hospital for providing immediate medical aid to Palampur. (iv) Statement of the complainant was recorded under Section 154 Cr.P.C. by the police in the hospital at Palampur, which culminated into present FIR under the aforesaid sections. (v) PW1 Dr. H.K. Vashistha medically examined the injured/ complainant and clinically noticed the following injuries on his person:- 1. Two circumscribed round wound measuring 2 ½ cm x ¾ cm over the left inguinal area perennial region present nearby skin is lacerated. Excessive bleeding from the wound. Clothes over the wound burnt. Two gun shot - 4 - wounds are deep and could not be examined deeply due to excessive pain. 2. Swelling and tenderness around the wound present. The injured was referred to R.P.M.C. Hospital for further management of his injuries, instead injured being an Ex- serviceman preferred his treatment in Army Hospital, Yol. He issued MLC Ex.PW1/A and opined the injury No.1 grievous in nature, caused within six hours from the time of examination and it was possible with firing through a double barrel gun and the life of the injured could be saved by giving him immediately medical aid. (vi) During investigation of the case, police took into possession one shirt Ex.P1 and Banyan Ex.P2 of the injured, which was having the holes on the point of corresponding injuries, in the presence of PW2 Nirmal Singh vide memo Ex.PW2/A. Police also obtained sanction Ex.PW12/A from the office of District Magistrate to - 5 - prosecute the accused under the Arms Act. (vii) On 28.6.2000, the pallet Ex.P3 which was removed by the doctor at Army Hospital Yol, where he was operated upon handed it over to the injured Parshottam to which he further handed over to PW17 ASI Karam Chand vide memo Ex.PW3/A, later, which was sent to CFSL, Chandigarh alongwith the Gun Ex.P6 for examination. (viii) Police also took into possession the discharge certificate in respect of the injured from the Military Hospital Yol, vide memo Ex.PW17/C. The gun and the Gun licence were taken in to possession vide recovery memo Exts.PW17/D and E respectively. The site plan Ex.PW17/A of the place of alleged incident was also prepared. 3. Police recorded the statements of the witnesses and after getting the report of the CFSL Ex.PA and also the report of forensic examination - 6 - Ex.PB, case was presented in the Court for the trial of the accused. 4. The accused was charge-sheeted for the aforesaid offences, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor, however, he did not raise any specific defence, rather pleaded innocence. 5. Shri Jagdish Vats, learned counsel for the appellant took up the following points in arguments :- (i) there was inordinate delay in sending the FIR to the Illaqua Magistrate and no explanation to this effect was offered, thus the possibility of ante timing the FIR and fabricating a case against the accused after due deliberation can not be ruled out; (ii) PW17 ASI Karam Chand, the Investigating Officer stated that when he reached the spot after - 7 - receiving the telephonic message from the Pradhan of the Gram Panchayat, none of the prosecution witnesses disclosed the name of the accused rather the name of appellant as assailant was later added in the FIR. (iii) the pallet recovered from the body of the injured did not match with the gun in question, as per report of the Central Forensic Science Laboratory; (iv) the distance from where the accused is alleged to have fired the complainant was about 40-45 feet but according to the doctor as well as forensic report, the gun was fired from a very close range; and (v) there has been inordinate delay in sending the gun to the Central Forensic Science Laboratory, for examination, which weighs against the prosecution. - 8 - 6. To appreciate the above arguments of the learned counsel for the appellant, I also sent for the clothes of the injured Parshottam Singh, to which he was wearing at the time of alleged occurrence, which were produced before the Court on 20.12.2010. My observations were as under:- (i) “White shirt with black broad checks bears about 2” group fire, centre totally blown off and one mark of pallet is on the right side in the centre; (ii) At this stage, it is visibly difficult to find out that the area where the shot had hit was charred/ burnt or not; and (iii) There are corresponding pallet holes on the leaf green under-waist, but area is not blown off, it has only the pallet holes.” 7. Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and ventilated that if there has been any defect in the investigation of - 9 - this case that benefit could not be given to the accused, if otherwise the statement of the injured and his witnesses are found trustworthy. It was also argued that it was a muzzle loaded gun and in ordinary circumstances, it is difficult to the expert to give a positive finding that the projectiles in the in the muzzle loaded gun packed/ filled in by the accused on the gun powder are the same, due to the lack of individual characterized marks, like the cartridges manufactured in the gun factory used in 12 bore gun, the pattern of which is superimposed on the melted portion of the rim of the cartridges, because of breach loading. 8. I have given my thoughtful consideration to the rival contentions of the parties and have closely and cautiously scanned the evidence of the prosecution. 9. PW13 Parshottam Singh, is an injured witness. His statement is of a paramount importance, because he would never save real culprit and substitute him by another, more specifically when he has an attempt on his life with a fire arm, where the chances of death is more than any other - 10 - weapon. He testified that on 11.2.2000, around 10.30 p.m., after tethering his ox, he was going to his room to sleep. At that time, he was wearing Shirt Ex.P1 over Banyan Ex.P2 and underwear. The accused started abusing him and asked him to come out. When he came out of his room and was climbing down the stairs, respondent fired at him with his muzzle loaded gun. It was a moon-lit night and electric bulb of his shop was also on. He identified the accused clearly. The electric bulb light was going upto the house of PW14 Mast Ram. He is a retired personnel from the Army. He has fairly good idea of distance and specifically stated that the accused had fired at him from a distance of about three meters. He also stated that the pallets hit his lower portion of the stomach. At that time, PW14 Mast Ram and PW15 Asha Devi were also standing in their courtyard. On receiving the gun shot injury, he fell down and cried. He further stated that his Shirt and vest got burnt at the sight of the pallet injuries. Many people gathered there. He stated that PW16 Kishsori Lal carried him on his back and arranged for the vehicle. Master Gopal - 11 - and his wife accompanied him upto the hospital. He was taken to the Hospital at Palampur, from where he was referred to the Zonal Hospital Dharamshala. Since he refused to go to Dharamshala being Ex-servicemen and expressed his desire to be treated in Military Hospital at Yol, where he was operated upon. He made statement to the police Ex.PW13/A. On surgical operation, a pallet (PW3) was extracted from his body, which was handed over to the police. On 28.6.2000, his clothes were taken into possession by the police, to which he identified as Shirt Ex.P1and vest Ex.P2, underwear Ex.P4. 10. PW13 further stated that after the retirement, when he settled down in the village, he made efforts to construct a road with a machine, by which the accused suffered a set-back., thus he nourished a grudge against him. 11. He was subjected to the meticulous cross- examination. He was confronted with the statement Ex.PW13/A wherein it was not found recorded that he saw the occurrence in the light of the electric bulb outside in his shop. He - 12 - categorically denied that there was no light and it was all dark. He also admitted that there was a passage between the house of Mast Ram and his house and in between there was a khud which was approximately 35 feet wide and there were only three stairs descending towards his house. The distance between Danga and stairs is only five meters. He denied that at the place where Mast Ram was standing, there were descending stairs towards his house and he was facing back. He denied that he deliberately gave less distance as aforesaid at the instance of the police. He was also confronted with the statement aforesaid that on receiving the pallet injuries, he cried when he was hit by Om Parkash, whereas this fact was not found mentioned. He categorically denied that appellant Om Parkash was not present there nor he had fired at him. He further stated that at the time of medical examination, he also named the accused having fired at him to the medical doctor. 12. PW14 Mast Ram, the alleged eye has corroborated his version to a great extent. He - 13 - stated that after tethering his animals, complainant was present in the courtyard and the accused was standing on the road abusing the complainant and challenging him :- " बाप का पुƣर है तो बहार आ जा" (“BAAP KA PUTAR HAI TO BAHAR AA JAA”) He further stated that on this, complainant came outside. While descending the stairs of his house came in the courtyard near the stairs. The accused went ahead towards him and fired a gun shot and then said that he did not know as to who had fired at the complainant. Though the learned Public Prosecutor made the prayer to cross- examine him with reference to the statement recorded under Section 154 Cr.P.C., which is not made by him, but in fact, he should have been cross-examined with reference to his statement recorded under Section 161 Cr.P.C. It appears both the Court below as well as the learned Prosecutor were not serious and attentive about the above fact, which is not expected from them at all. However, he admitted in the cross- examination conducted by the learned Public - 14 - Prosecutor his suggestion that the electric bulb outside the shop was on at that time and it was also moon-lit night. He further stated that there are only two houses near his house, one pertaining to him and another to the complainant, which are at a distance of 50-60 yards. He also admitted Parshottam Chand suffered gun shot injury, but denied the fact of firing gun shot by Om Parkash. He also admitted that the accused shouted when he was standing near him that:- "मैंने परषोƣम की ऐसी तैसी फेरनी है, वोह कहाँ है" (“MAINE PARSHOTTAM KI AISI-TAISI PHERANI HAI, WHO KAHAN HAI.”) He further testified that Parshottam suffered bull- shot injury on the stomach and at that time, he was wearing shirt and the underwear. He got afraid and went inside his room. He further stated that his wife was cleaning the utensils in the courtyard. He admitted that he told police that his house was at a distances etc. He also admitted that the police reached the spot after half an hour and interrogated him, his wife and Anil son of Moti Lal and police made the enquiries from them - 15 - about the incident. They narrated the incident to the police, but their statements were not recorded, however, they disclosed the facts of the case in the morning. He further stated that as he could not give information to the police, they caught hold of him from the ear and threatened that he should state as per their directions. However, he denied that he made the statement under the threat to the police. 13. PW15 Asha Devi stated that at the relevant time, she was cleaning the utensils in the courtyard and heard the sound of the gun fire. She enquired from her husband, but he came inside and accused Om Parkash was abusing Parshottam, her husband was crying. She also stated that she did not know as to who fired the gun shot. She was declared hostile and cross-examined by the learned Public Prosecutor, then she stated that she saw the gun in the hands of Om Parkash. She admitted that there were only two houses on the spot and the house of Om Parkash accused has been at a distance of 50 yards. She did not know whether any other villager was having gun and - 16 - admitted that no quarrel was taking place except that of Om Parkash. She also admitted that Kishori picked up Parshottam from the spot and removed him to the hospital in a vehicle. She admitted that electric light of the shop of the injured was on. The light of the bulb was coming upto their courtyard of the house and it was also a moon-lit night. She further stated that accused Om Parkash was challenging the complainant that:- "अगर असल माँ का पूत है तो बहार िनकल" (“AGAR ASSAL MAAN KA POOT HAI TO BAHAR NIKAL”.) She further stated that neither she has any dispute with the accused nor the complainant. She admitted that the distance from the Danga of her house to the house of Parshottam is about 55 feet. Police had visited the same night on the spot, within a half an hour and made the enquiries from them. She denied that she heard sound and presumed to be a voice of Om Parkash accused. 14. PW16 Kishori Lal stated that at the relevant time, he was taking the meals and heard the sound. Thereafter, he proceeded towards that - 17 - side, on the way, he met many people of the village, who had gathered in the Khad of village Garla-Dei. Parshottam was lying and crying on the spot. On inquiry, he told him that Om Parkash had fired at him. The blood was oozing out from the injury. He lifted him and the underwear of the complainant fell down on the spot. Shirt and Vest of the complainant were having the pallet holes. He took him to the hospital in a vehicle. He is also a witness to the memo Ex.PW2/A whereby the shirt and under-vest were taken into possession by the police. In cross-examination, he admitted that he was not present when the gun shot had fired at the complainant. 15. PW7 C. Raghubir Singh had taken the case property and sent it to the Forensic Science Laboratory, Junga through C. Tilak Raj and gun Ex.P6 to the Central Forensic Science laboratory, Chandigarh through C. Ashwani Kumar, for the examination. 16. PW1 Dr. H.K. Vashistha, clinically examined the complainant Parshottam and found the pallet injuries as stated above and issued MLC Ex.PW1/A. - 18 - In cross-examination, he stated that he could not mention the distance of the fire was from a close range, but admitted that the clothes Exts.P1 and P2 of the injured were burnt over the wound and also that the burning of the clothes was caused by gun fire temperature. He further admitted that if the shot is fired from a close range, the clothes could also be burnt and voluntarily stated that the clothes would burn in case, the shot is fired from a short distance due to heat generated by the pallets, but he did not have special qualification in the field of forensic science. He also stated that the address of the injured was given by the person accompanying him, but the name of assailant was not mentioned in the MLC. He also did not ask the name of the assailant nor the person accompanying him gave the history. He also admitted that the close range means upto three feet. 17. A perusal of the report of the Central Forensic Science Laboratory Ex.PA reveals that the barrel swabs and washings of the DBML gun had shown residues of firing discharge. In the opinion of the - 19 - expert, the gun was fired through and the gun in question was in the working order. They also examined the holes in the Shirt Ex.P1 and Vest Ex.P2 for the presence of discharge of residues and the fire residues were detected. Thus, the expert came to the conclusion that the hole marks H/1 and H/2 present on the Shirt and Vest respectively were caused due to the gun fire within a close range, however, no opinion could be formed regarding the linkage of fired lead piece under reference with the DBML Gun due to the lack of individual characteristic marks. 18. The Investigating Officer PW17 ASI Karam Chand while corroborating the prosecution case denied in the cross-examination that the FIR was prepared by him on 13.6.2000 in the early hours of the morning. He denied that he had received the telephonic call on 11.6.2000 during the night from PW10 Anil Sihal, but he did receive the telephonic call from Shri Narinder, Pradhan, Gram Panchayat Garla-Dei at 10 p.m., thereafter he proceeded to the spot. He also admitted that on reaching the spot having interrogated PW10 Anil Sihal, PW14 - 20 - Mast Ram and his wife PW15 Asha Devi, did not record their statements. However, he denied that they refused to answer the questions in the morning, as he liked. He also denied having caught Mast Ram from the ear in the presence of his wife and other villagers to make the statement, to which he wanted from him. He also admitted that nobody disclosed on 11.6.2000 as to who had fired at the complainant. Thus he went again on 12.6.2000 on the spot. He denied that in the presence of Anil Sihal, accused was badly beaten up in the Police Station. He stated that pursuant to the disclosure statement given by the accused, he had recovered the gun in question. No explanation was offered by him with respect to sending the gun late to Central Forensic Science Laboratory, Chandigarh. He denied that the gun was fired from a close range, according to him, it was about five meters. 19. PW12 Kapil, Licence Clerk from the office of the Deputy Commissioner, Dharamshala has proved the prosecution sanction Ex.PW12/A and also stated that the licence in question pertaining - 21 - to the DBML was in the name of accused Om Parkash. He did not know what were the documents perused by the Magistrate at the time of giving sanction. 20. However, a perusal of the sanction orders ExPW12/A makes it explicitly clear that the District Magistrate had perused the police report and verified the facts. The brief count of the facts have also been given by him in the sanction order and there is also a reference about looking into the record of the case and arriving at the decision, thus, granted the sanction in accordance with law to prosecute the appellant under the Arms Act and I did not find any defect therein. 21. On the critical examination of the aforesaid evidence, I find overwhelming evidence on record that at the relevant time accused Om Parkash was abusing the complainant and challenged him to come out. There is no evidence to this effect that the other people in the village were having muzzle loaded guns and they were having bad relations with the complainant. At the relevant - 22 - time, when the accused was in rage, Mast Ram and his wife were present in the courtyard. The accused was approaching towards the stairs of the injured and immediately thereafter there was a sound of the gun fire. PW14 Mast Ram and PW15 Asha Devi have also supported the case of the prosecution in material particulars. Though they turned hostile for the obvious reasons as they are also persons of the same village. PW16 Kishori Lal had reached the spot immediately after the incident. On enquiry from the complainant, he named the appellant as assailant. The gun Ex.P6 was opined to have been fired through. Although, the pallet Ex.P3 in question could not be connected with it, but it was having fired and discharge residues and other pallets could not be extracted from the body of the complainant. 22. A perusal of the Shirt Ex.P1 shows that at the points of the corresponding injury on the body of the complainant, it was totally blown off at place of corresponding injury. The Ballistic Expert on its examination opined that there were fire discharge resides because of the close range. The cotton - 23 - banian (under-vest) Ex.P2 had only the corresponding pallet injuries, but area was not blown off. It had only the pallet holes. The Shirt has polyester yarn and because of the heat of the pallet, the entire area got blown off due to heat of pallets. Since the under-vest was of cotton, thus, it was not blown off like the Shirt, which leads me to a conclusion that muzzle loading gun is a primitive weapon fired from the distance of about five meters. The injured also categorically stated that it was a Muzzle Loading Gun fired from a distance of about three meters. As per