IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.434 of 2002 Reserved on : June 18, 2009 Date of decision : June 19, 2009 Sher Singh …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Vinay Thakur, Advocate. For the Respondent : Mr. Ramesh Thakur Assistant Advocate General. Surjit Singh, J Appellant is aggrieved by the judgment, dated 4th July, 2002, of the learned Sessions Court, whereby he has been convicted for offences, under Section 304 (second part) of the Indian Penal Code and Section 25 of the Arms Act, 1959, and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, for the offence, under Section 304 (second part) of the Indian Penal Code and to undergo imprisonment for one year and to pay a fine of Rs.1,000/- for the offence, under Section 25 of the Arms Act, and has also been ordered to pay a sum of Rs.50,000/-, as compensation, to PW-1 Smt. Veena Kanwar, widow of the man killed by the appellant. So, he has preferred this appeal. 2. Case of the prosecution, as per evidence on record, is like this. Deceased Rajinder Singh was a son of the appellant. He married PW-1 Veena Kanwar against the wishes of the Whether reporters of the local papers may be allowed to see the judgment? …2… appellant and other family members. After the marriage, the deceased, alongwith his wife PW-1 Veena Kanwar, started living separately in the same building, in which the appellant resided. Often, the deceased used to quarrel with the appellant. He would use abusive language against the appellant and at times even threatened to stab him with a knife. Appellant lodged reports with the police against his deceased son twice, once on 3rd January, 1999 and again on 26th February, 1999, in which he complained that the deceased had quarreled with him and even assaulted him and threatened to stab him to death. 3. On 22nd March, 1999, around 7.30 p.m., appellant allegedly fired a shot, through his gun Ex. P-2, at deceased Rajinder Singh. The shot hit the deceased in his lower abdomen. On hearing the sound of gunshot, PW-1 Veena Kanwar, wife of the deceased, rushed to the spot. She saw the appellant with a gun in his hand. She arranged to rush her injured husband to the hospital, but he succumbed to the injuries on way to the hospital. 4. Report was lodged with the police and a case under Sections 302 of the Indian Penal Code and Section 25 of the Arms Act was registered against the appellant. Gun was recovered from the appellant. Also, an empty cartridge of gun, Ex. C-1, was recovered. Gun and the cartridge were sent to the Ballistic Expert, who, vide report Ex. PW-10/F, reported that the cartridge Ex.C-1 had been fired through the gun Ex. P-2. Appellant was challaned in the Court of concerned Judicial Magistrate. Case was committed by the Judicial Magistrate to …3… the Sessions Court. It was assigned to the Additional Sessions Judge, who charged the appellant with the offences, under Section 302 of the Indian Penal Code and Section 25 of the Arms Act, and on his pleading not guilty tried him. 5. Appellant did not deny that he had fired the shot, which hit his son Rajinder Singh in the abdomen and caused his death. He took the plea that he did so, in exercise of his right of private defence of person, because the deceased was advancing towards him with a knife, in his hand, to attack him and had he not fired the shot, he would have most likely killed him. Learned trial Court accepted the defence plea, but observed that the appellant exceeded his right of private defence of person. Consequently, the trial Court convicted the appellant of offences, under Section 304 (second part) of the Indian Penal Code and Section 25 of the Arms Act, and sentenced him, as aforesaid. 6. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General. 7. Learned counsel for the appellant does not deny that the appellant fired the shot, which killed his son Rajinder Singh. He, however, submits that the view taken by the learned trial Court that the appellant exceeded his right of private defence of person is not correct and that in the facts and the circumstances of the case, as also the situation in which the appellant was, at the relevant time, justified his act and so he is entitled to acquittal. I do not find any merit in the submission. Appellant could have prevented the deceased from attacking him, by …4… aiming the shot at his legs, below knees, or even at the hand, in which he was holding the knife. 8. Another submission made on behalf of the appellant was that leniency be shown to him, in the matter to punishment and the sentence of substantive imprisonment be reduced to the detention of about four months, already undergone by him during investigation and trial of the case, because of his being old age and also because of the fact that he has lost his own son, even though on account of his own criminal act. He submitted that appellant was 65 years of age, when the offence was committed. Ten years have passed since the commission of the crime and now he is supposed to be 75 years old. Sending him to jail, at this age, would be too harsh for him. It will also be traumatic for him, as also his wife, because she has already lost her son and now her husband, in his late 70s and, hence, dependent upon others for his physical care, would be going to jail. Appellant himself is also suffering the pangs of self-guilt, because of his happening to kill his own son. I do not think the aforesaid are good grounds for reducing the sentenced. Learned trial Court has already taken a lenient view and sentenced the appellant only to three years imprisonment. Hence, the plea for reducing the sentence is also rejected. Consequently, the appeal is dismissed. June 19, 2009(sd) ( Surjit Singh ), J