1 S.B. Criminal Appeal No. 493-89 (Vijay Kumar Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Vijay Kumar Vs. State S.B. CRIMINAL APPEAL NO. 493/1989 Against the judgment dt. 24.11.89 passed by District and Sessions Judge, Sriganganagar in Sessions Case No. 34/1988. Date of Order : 21st July, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr. R.K. Singhal for the appellant. Mr. Panney Singh, Public Prosecutor. BY THE COURT: Challenged is appellant's conviction for the offence of Section 307 IPC and Section 27 Arms Act recorded in Sessions Case No. 34/88 before the court of Sessions Judge, Sriganganagar vide judgment dated 24.11.89. The sentence awarded is three years rigorous imprisonment for Section 307 IPC and to one year rigorous imprisonment with fine of Rs. 100/- for Section 27 of Arms Act. Alleged events as per prosecution are that on 07.04.88 at 8:40 PM, Subhash Chandra PW/1 arriving at P.S. Kotwali, Sriganganagar orally lodged report that at about 8:20 PM he while going home from office as he turned towards south were standing Vijay and Surender - Vijay for killing him fired from pistol at him, palletes of which struck on his left wrist – as he stopped his motorcycle, second fire followed, palletes of which struck and entered his right leg and then both ran away. The complainant further informed that Mukesh Agarwal observed the incident and this incident occurred because 10-15 days earlier his elder father's 2 S.B. Criminal Appeal No. 493-89 (Vijay Kumar Vs. State) son Mangal was beaten by Vijay and others and he (Subhash) accompanied Mangal to police station and 2-3 days thereafter Vijay had threatened him. Also mentioned in this report is that Surender while running away was telling of revenge taken. Registering FIR Ex.P/8 No. 141/88 for the offence of Section 307/34 IPC, in course of investigation S.I PW/5 inspected site and prepared memos Ex.P/8 and 8A - shirt and pant having blood stains and palletes seized and sealed vide memo Ex.P/2 - Appellant and other accused arrested and though information of Vijay kumar Ex.P/12 is said to be for pistol but no recovery. Ex.P/9 is injury report of Subhash Chandra and Ex.P/3 is X-ray reports of injured, according to which metallic pallete were in right thigh and fore arm. After usual investigation, chargesheet submitted for the offence under Section 307 IPC and Section 27 Arms Act. Appellant charged for the offence of Section 307 IPC and 27 Arms Act that he at 8:30 PM on 07.04.88 without license possessing a pistol and using it for killing Subhash Chandra with intention to cause death fired at Subhash Chandra attempted his murder. Other accused Surender were charged for the offence of Section 307, 114 IPC. For prosecution, five witnesses are examined. Subhash Chandra PW/1, the complainant and PW/3 Mukesh depose of happening of incident as above. PW/4 Dr. Ram lal Goyal examining the injuries of Subhash Chandra prepared report Ex.P/9. PW/2 Dr. K.N. Markandey is radiologist proves X-ray report Ex.P/3. S.I. Sadhu Singh PW/5 is the investigating officer. According to appellant witnesses are telling lie and he had a quarrel with Mangat and so Subhash being brother of Mangat has falsely implicated him. Learned counsel for the appellant argued that (i) injuries are 3 S.B. Criminal Appeal No. 493-89 (Vijay Kumar Vs. State) simple – so is clearly deposed by medical officer (ii) it was dark night with no evidence of any light (iii) named one eye witness not produced – PW/2 is also a interested witness (iv) admittedly complainant PW/1 has some enmity and every chance is that appellant is falsely implicated (v) as per doctor, injury caused by single shot whereas, finding of learned trial Judge is of two shots. Learned counsel for the appellant argued that even if there was fire shot, no intention for any grievous injury can be gathered because no injury is on vital part and injuries are simple one so the act maximum can be punishable under Section 324 IPC and as the appellant was about 18 years of age at that time, who remained under trial for several months, so punishment of undergone is sufficient. Learned Public Prosecutor submitted that though injuries as per doctor are simple but of fire arm and appellant fired, so he is rightly convicted. Regarding injuries, Dr. Goyal states that he being Medical Jurist examining Subhas Chandra at 11 PM on 07.04.88 prepared report Ex.P/9 and found were injuries (i) gunshot (entry) multiple – 1/8 x 1/8 inch x ? at back of right wrist (ii) gunshot (multiple) 1/8 x 1/8 inch x ? - right thigh and middle and upper and frontal area. Injuries caused within 6 hours by fire arm and referred for X-ray. Further says that injuries were simple on non-vital part and can be caused by single fire. Radiologist Dr. Markandey Pw/2 state that on 08.04.88 right fore arm and right thigh of Subhash Chandra were x-rayed before him and on the basis of plates Ex.P/4, 5 & 6 he prepared report Ex.P/3 and it was observed that in right thigh and also in right fore arm were multiple radio opaque foreign body metallic shadows. Also says that injury can be caused while riding on motor cycle and fire from right side. The above description proves the injuries. Further is also proved 4 S.B. Criminal Appeal No. 493-89 (Vijay Kumar Vs. State) that injuries were of fire arm as foreign metallic bodies were present in the body – so injuries tending to be extent of grievous one – could have been caused by single fire arm but that possibility do not eliminate two shots which is to be determined by other evidence. In this context, relevant also is that the Investigating officer has stated that 12 bore cartridge of LG has 8-10 palletes whereas, cartridge SD has palletes upto 100. As per deposition of Subhash Chandra PW/1, about 15-20 days prior to the incident, son of his elder father Mangat Ram was beaten by Vijay Kumar and Surender and he accompanied Mangat Ram to police station for lodging the report. Due to this after 5-6 days, Vijay had threatened him. I.O. The PW/4 mentioning copy of Roznamcha report Ex.P/5 states that Mangat Ram has lodged such a report. PW/1 states that he at 8 – 8:30 PM while coming from office on motorcycle after boundary wall when took turn towards south at half Falang, were standing Vijay and Surender. Vijay fired and injured him at right wrist and as he stopped, Surender told Vijay that as he has escaped, so to fire again and then Vijay shot second fire by which he sustained injuries on right thigh – Mukesh and Ratan lal coming from opposite site on cycle shouted and these persons ran away – then Subhash immediately going with Mukesh on motorcycle, lodged report Ex.P/1 at P.S. In cross-examination PW/1 asserts that after first fire, keeping the empty cartridge in pocket, Vijay dired again and some palletes also struck motorcycle which not taken not of by I.O. Mukesh Kumar PW/3 and also PW/1 Subhash Chandra both say about Ratan lal being with PW/3 but he is not named in FIR and further it appears that Ratan lal was only a casual acquiantee of PW/1, so Ratan lal being not among prosecution witnesses cannot be of significance, 5 S.B. Criminal Appeal No. 493-89 (Vijay Kumar Vs. State) particularly, if no other reason is to doubt version of PW/1 and PW/3. In this context, argument also is advanced that as per memo of site inspection and as per evidence also, no cartridge was found at the place of occurrence neither was found any blood. For this suffice may be to mention that for injuries, doctors have mentioned and proved as above and non-finding of empty cartridge and blood cannot be fatal for prosecution. Here, it may also be mentioned that if evidence is otherwise worth belief, then fire a single or two cannot lead to throwing out the prosecution case. Whatever it be, proved is that injuries were caused by fire arm i.e shot from gun. PW/1 lodged the report at P.s. Kotwali and the then Incharge registered FIR Ex.P/1 and handed over investigation to S.I. PW/5. The information is oral and it does not find mention of speaking by Surender for making second fire – running away of these persons on shouting of Ratan lal and Mukesh – distance of firing etc - but all these are too triffling matter so contentions based on these cannot be accepted. Mukesh Kumar PW/3 corroborating PW/1 state that after first fire Vijay Kumar keeping empty catridge in pocket reloaded revolver and fired second shot and he carried Subhash to P.S on motor cycle which driven by him. No reason appears to doubt evidence of this witness. PW/1 was very much injured by fire arm and the injuries corroborate testimony. Arguments regarding identification for want of appropriate light and non-examination of Ratan lal are not tenable. Similarly, fact that recovery of weapon could not be made, cannot help appellant – because of non-recovery maximum probability can be regarding lethalness or nature of the fire arm which is to be examined with fact of nature of injuries. Injury caused is by fire arm which fact is 6 S.B. Criminal Appeal No. 493-89 (Vijay Kumar Vs. State) much relevant for determining intention but dispute allegedly two fires, injuries not caused on vital part. Here fire arm was used but the injuries as per Medical officer though multiple one 4 but simple. Doctor PW/4 who very first examined PW/1, categorically says that injuries were simple. With this is the fact that injured sitting on motor cycle first went to police station and only thereafter, for treatment. The evidence of Radiologist PW/3 proves presence of radio opaque metallic shadows but nothing to show any bone injury, rupture like. It is also to be presumed that these foreign articles, in normal course of medical treatment were to be taken out and actually was done so. Obviously inference can be that injured suffered for 21 or more days. These facts of the case prove that grievous injury was voluntarily caused by fire arm but intention to cause death is indeed hard to infer. Every possibility of fire arm being there meant only for bird hunting or so like. This view is also supported by the fact that all the injuries were simple of little dimension and on non-vital part and no bone injury as per doctor which also shows lethality of weapon of fire arm. In the circumstances, every possibility is that fire arm relatively was of minor impact of very low lethality. For the reasons above, appellant is to be convicted for the offence of Section 326 IPC and not Section 307 IPC. Learned counsel for the appellant argued that incident is of 23 years ago and at the time of incident, appellant was of 18 years who remained in custody for several months in course of trial. Learned Judge discussing reasons for quantum of sentence has mentioned about the age of appellant being less than 21 years at the time of conviction. It appears that appellant remained in imprisonment for a period of five months, so in the totality of circumstances, sentence for the period already undergone and fine of Rs. 25,000/- shall be just and proper. 7 S.B. Criminal Appeal No. 493-89 (Vijay Kumar Vs. State) Accordingly, partly accepting the appeal, the conviction of appellant for the offence of Section 307 IPC and Section 27 Arms Act is altered to Section 326 IPC and Section 27 Arms Act. Appellant for the offence of Section 326 IPC is sentenced to the period already undergone and fine of Rs. 20,000/-, in default to undergo two months rigorous imprisonment. For the offence of Section 27 Arms Act, appellant is sentenced to the period already undergone with fine of Rs.5000/-, in default to undergo 15 days simple imprisonment. Appellant shall deposit the fine of Rs. 15,000/- by 31.08.2009 and remaining amount by 30.09.2009 failing which the appellant to present and surrender on above date to undergo imprisonment and learned trial court shall also secure so by issuing warrant of arrest. (C.M. TOTLA), J.