IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.248 of 2004. Judgment reserved on 16th May, 2011. Date of Decision: 23rd June, 2011. ____________________________________________________ Inderjit alias Jitu ….Appellant. Versus State of Himachal Pradesh ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Anup Chitkara, Advocate. For the respondent : Mr.A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J. The appellant has filed the present appeal feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence passed by the learned trial Court in Sessions Trial No.4 of 2002, for the offence punishable under Section 307 of the Indian Penal Code, whereby he has been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 2,000/- with default clause. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. In short, the prosecution story can be stated thus. PW4 Partap Chand injured was in Katha business. On 10th February, 2001, he had gone to Sarkaghat. On the same day, he returned by bus to Hamirpur, from where he boarded another bus to his native village ‘Kamlah’ and alighted at the road-head at the place known as ‘Jhaniari’ and started going on foot to his village. Incidentally, the appellant, hereinafter to be referred as ‘the accused’ met him on the way. He was having a licensed muzzle-loading gun Ext.P.6 with him and started following Partap Chand aforesaid. When both of them reached near ‘Harbal Garden’ in village ‘Neri’, the accused started abusing Partap Chand and threatened him to kill. In turn, Partap Chand did not pay any heed to such threatening and continued walking. The accused over-took him through a shortcut and reached ahead of him and fired a gun-shot at him from a distance of about 25 feet. The pellets hit his left shoulder. On getting injury, he raised an alarm by which PW4 Udham Singh got attracted. The accused fled away from the spot. Partap Chand revealed about the incident to Udham Singh and asked him to inform the police and requested him to take him to - 3 - hospital. The wife of the injured was informed telephonically. She alongwith her co-villagers also came to the spot. Injured (PW4) was removed to the hospital. (ii) On the same day, the police recorded his statement Ext.PW4/A under Section 154 of the Code of Criminal Procedure. PW17 Dr. Vineeta Sharma on the application of police Ext.PW13/B medically examined the injured. She advised X-ray of left shoulder of the injured and the injured was referred to PW1, the Surgeon for expert treatment and opinion. (iii) PW1 Dr. P.C. Verma got X-rayed the injured under his supervision from PW2 Suresh Kumar, Radiographer and after examining the ski-grams Ext.PW1/A and PW1/A-1 observed that there was fracture of left scapula in the upper part noted a radiopaque foreign body in the upper part of left forearm, encroaching upon the head of humerus. His report is Ext.PW1/B. The blood stained clothes Ext.P.2 to P.4 of the injured were sealed and taken into possession vide memo Ext.PW13/B. Thereafter the injured remained admitted for treatment in the hospital and he was operated upon by PW3 Dr. Dhruv Sharma, Medical Officer of Zonal Hospital, Hamirpur. He explored the injuries of - 4 - injured Partap Chand in the operation theatre on the same day. He neither found any cloth in the wound, nor suit. No pellet could be recovered from the wound. On thorough exploration of the wound, left deltoid muscle was found to be extensively lacerated and there was evidence of oozing of blood from muscle. There was no restriction of movement at the shoulder joint. Further, there was also no evidence of motor/neurological deficit of the left upper limb. In the opinion of the doctor, the injury was possible with a fire-arm and his observation is Ext.PW3/A. (iv) PW13 Inspector/SHO Sansar Chand visited the spot. The accused was arrested and interrogated. During the interrogation the accused made the disclosure statement (Ext.PW9/A) under Section 27 of the Evidence Act with respect to the gun and got recovered vide memo Ext.PW9/C, from behind his house to keep hidden in stacked grass. The sketch map of the gun Ext.PW9/B was prepared. The gun Ext.P.6 and the licence were taken into possession vide memo Ext.PW9/D. (v) The house of the accused was searched by the police in the presence of PW10 Rajesh Kumar - 5 - and PW9 Vipan and bag Ext.P.16 was recovered, which contained gun-powder about 150 grams kept in a bottle Ext.P.13. Tin container Ext.P.15, 25 graphs, 21 caps and two pellets were also recovered. (vi) 25 Grams gun-powder, 5 graphs and two pellets from the recoveries aforesaid were separated, as sample and sealed separately with seal “K” and taken into possession vide memo Ext.PW9/E. (vii) Police prepared site plan Ext.PW13/D of the place of incidence. (viii) Blood samples of the injured were also taken and sent for its examination. The gun and the recovered material were sent for ballistics expert for his opinion and the report of the Ballistics Expert Ext.PW7/A was obtained. The prosecution sanction to prosecute the accused was obtained from the District Magistrate concerned. 3. After completing the investigation, Challan was presented against the accused in the Court for his trial for the offences punishable under Section 307 of the Indian Penal Code and Section 27 of the Indian Arms Act. - 6 - 4. After complete trial, the accused was acquitted for the offence punishable under Section 27 of the Indian Arms Act for want of legal and proper sanction, however, convicted and sentenced for the offence punishable under Section 307 of the Indian Penal Code as aforesaid, hence the present appeal by the accused. 5. Shri Anup Chitkara, learned Counsel for the accused vehemently argued that the prosecution failed to connect the accused with the offence charged. He also argued that the alleged incident took place in ‘Jangal Ropa’, which area is prone to hunting. The possibility of the accidental gun- shot to the injured cannot be ruled out and further that the accused in order to wreck-vengeance against him on account of previous enmity lodged present FIR after due deliberations, but, however alternatively argued that it was a case under Section 324 of the Indian Penal Code and prayed for leniency. To buttress his arguments, he cited the judgment of Apex Court rendered in Sarju Prasad v. State of Bihar, AIR 1965 SC 843, which was relied upon by the High Court of Punjab and Haryana in Surjan Singh v. Suraj Pal, 1993(3) R.C.R. (Criminal), 410. - 7 - 6. On the other hand, Shri A.K. Bansal, learned Additional Advocate General while supporting the impugned judgment of conviction and sentence, forcefully argued that the evidence of the injured is worth inspiring confidence and the enmity as alleged by the accused is far-fetched. He further argued that by the act of the accused followed by his intention brings this case within the ambit of Section 307 of the Indian Penal Code, therefore, no interference is called for. 7. I have given my best consideration to the rival contentions of the parties and have carefully and cautiously reappraised the evidence on record. 8. PW4 Partap Chand injured without mincing any word categorically stated that it was the accused and the accused only who had fired at him abruptly without any rhyme and reason through his gun Ext.P.6. On raising alarm PW5 Udham Singh reached the spot for his rescue. In cross-examination, he categorically denied any dispute with respect to the land with the accused. He also stated that the accused wound-up from his village 25 years ago. According to him, some dispute remained confined only in local Panchayat and the Police Station, but not in any Court. - 8 - 9. Though, PW5 Udham Singh did not support the case of the prosecution in its totality being a co-villager of the accused, but stated that on hearing the call from the injured he reached the spot and noticed the injury on the left shoulder of PW4 Partap Chand, who was sitting on the middle of the path and told him that someone had fired at him. He stands confronted with his statement under Section 161 of the Code of Criminal Procedure and admitted that the wife of the injured as well as his co-villagers reached the spot and took him to the hospital and further that the villagers were, however, informed by him about the incidence. In cross-examination, he stated that the place of occurrence is surrounded by jungle and hunters kept themselves hiding in the jungle. 10. PW6 Smt. Savitri Devi, wife of the injured, stated that on having been informed about the gun-shot received by her husband, she went to the spot alongwith 3-4 other villagers, whereas PW9 Vipan Kumar stated that he was informed by some boys in the evening that the injured was fired at by the accused and to inform the wife of the injured telephonically to which he did. He also reached - 9 - the spot alongwith other villagers and informed the police telephonically. 11. In the presence of PW8 Shiv Kumar, the police had also taken into possession, Sweater Ext.P.2, Shirt Ext.P.3 and Baniyan Ext.P.4 of Partap Chand injured vide memo Ext.PW4/A. PW9 Vipan Kumar admitted in the cross-examination conducted by the learned Public Prosecutor with respect to the disclosure statement Ext.PW9/A given by the accused in his presence pursuant to which he got recovered the gun which was sealed on the spot in a cloth parcel vide memo Ext.PW9/D. The gun license was also taken into possession by the police. He also admitted having taken the sample of the gun-powder and the pellets as aforesaid, which were separately sealed. The sealing and sampling process took place in thrashing ground and he proved the memo Ext.PW9/E. He also identified the gun Ext.P.6 during the trial to be that of the accused alongwith the bag (Ext.P.16) of gun-powder, caps and pellets to which it contained. In cross-examination he stated that he did not know from where the gun was brought by the police to thrashing ground. The witness took 3-4 minutes time to answer the question put to him as - 10 - observed by the trial Court. He admitted that the documents were prepared in the thrashing ground and his signatures and other witness, i.e. PW10 Rajesh Kumar, Up-Pradhan were obtained, who also did not support the prosecution case. Despite the fact that both the witnesses turned hostile, it stands proved that the gun in question was licenced one in the name of the accused which was sealed on the spot and was sent to the Ballistic Expert for its examination. 12. To prove report Ext.PW7/A, the prosecution examined PW7 Dr. B.P. Singh, Junior Scientific Officer. In his opinion, the gun aforesaid was in working order and it was fired through. According to him, the firing material, viz gun-powder, pellets and caps could be fired through this gun. He further observed that the holes in the clothes of the injured were tested chemically for the presence of firing discharge residue. On chemical examination, firing discharge residue were detected, in and around the holes marked H/1 to H/3 caused by firing. After examination, gun Ext.P.6 was sealed and returned. The wearing apparels Ext.P.2 to P.4 of the injured were also returned alongwith other articles sent for examination. - 11 - 13. PW14 Dr. Tithi, Junior Scientific Officer found the blood of human origin on the wearing apparels Ext.P.2 to P.4 of the injured which was of group “B”. He proved the report Ext.PW14/A. 14. On the net analysis of the aforesaid evidence and close scrutiny of the record, it can safely be concluded that gun Ext.P.6 pertaining to the accused was fired through. Injured Partap Chand is proved to have received the gun-shot injury on his left shoulder. 15. The injured was X-rayed by PW2 Suresh Kumar, Radiographer. He prepared the ski-grams Exts.PW1/A and PW1/A-1 and handed over to PW1Dr. P.C. Verma, who observed that there was fracture of left scapula in the upper part and there was radiopaque foreign body in the upper part of left forearm, encroaching upon the head of humerus and proved his report Ext.PW1/B. PW3 Dr. Dhruv Sharma also categorically stated that the possibility of receiving such injury by fire-arm cannot be ruled out and also stated that he did not extract any pellet from the wound at the time of operation. 16. The injured categorically stated that the accused had fired at him from the distance of 20- - 12 - 25 feet. Though, he stated that accused had threatened to kill him, but it is not understood what was the intervening circumstance, the shot missed the vital part of the body. The injured also did not say that he had aimed the gun on his head. The enmity as alleged is far-fetched. However, there is no cogent evidence on the file to prove the requisite intention of the accused to kill Partap Chand or to prove his knowledge that if he by his act had caused death, he would be guilty of murder. The pellets injury received by Partap Chand was on the non-vital part of his body. 17. For the liability under Section 307, the prosecution has to prove the following facts: (1) that the accused did an act; and (2) that the act was done with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder. 18. Mere circumstance that a firearm was used to cause injury to victim would not be sufficient to establish that the accused had committed an offence under Section 307. Further, evidence has to be led by the prosecution to establish the intention of the accused to cause death, or his knowledge as envisaged under Section 300 of the Indian Penal Code and the burden of proof is on - 13 - the prosecution and not on the accused. (Please see Sarju Prasad v. State of Bihar, 1965 SC 843). 19. In view of law laid down by the Apex Court referred above and keeping in view the facts of this case more specifically when the injury on the person of Partap Chand was on non-vital part of his body, the possibility of the accused who was armed with a gun, did not intend to cause any injury on any vital part of the body. He happened to meet the injured by chance. There appears to be a wordly feud prior to the alleged incident between the two, as the accused had used abusive language. Therefore, in retaliation he must have intended to cause injury to PW4 above. 20. In view of above discussion, in my opinion, the case under Section 307 of the Indian Penal Code is not made out against the accused, but, however, it is a case of causing voluntarily grievous hurt by gun-shot by the accused, which fractured left scapula in the upper part of forearm encroaching upon the head of humerus, as deposed by PW1 Dr. P.C. Verma, to this effect and his testimony remained unchallenged. Therefore, the conviction of the accused is converted from 307 of the Indian - 14 - Penal Code to be that under Section 326 of the Indian Penal Code. 21. Insofar as the sentence is concerned, keeping in view the extenuating and mitigating circumstances and also the fact that the accused faced the torture of trial and the time when the incident took place, the ends of justice would be met in case the accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of ` 2,000/- and in default of payment of fine to further undergo simple imprisonment of one month. In addition, the accused/convict is hereby ordered to pay the compensation to the tune of ` 15,000/- to PW4 Partap Chand. In case the amount of compensation is not paid, it shall be recoverable as fine. 22. The fine of `2,000/- stood already deposited in the trial Court vide receipt No.016581 dated 17th June, 2004. 23. The accused shall be entitled for the benefit of Section 428 of the Code of Criminal Procedure. 24. The accused is on bail as per order passed by this Court on 11th June, 2004. He is hereby ordered to surrender before the learned trial Court within a - 15 - period of one month from today, failing which the learned trial Court shall take coercive steps to procure his presence and commit him to prison to serve out the sentence in conformity with this judgment. 25. The appeal is partly allowed to the above extent it stands disposed of. 26. Send down the record forthwith. June 23, 2011. (Surinder Singh), (rc) Judge.