[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1047/2006 UDAIBHAN SINGH Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 25.09.2006 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK), HINDAUN CITY, DISTRICT KARAULI IN SESSIONS CASE NO. 1/2006 (71/2005) Date: 21/08/2008 HON'BLE MR. JUSTICE K.S. RATHORE Mr. Rajesh Moondia for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the impugned judgment dated 25.09.2006 passed by the Additional Sessions Judge (Fast Track), Hindaun City, Karauli, whereby the accused- appellants has been convicted and sentenced as under:- U/s 307 IPC Rigorous imprisonment for 7 years with a fine of Rs. 2,000/-, in default of payment of fine to further undergo imprisonment for three months. U/s 3/25 of the Arms Act Rigorous imprisonment for 1 year with a fine of Rs. 500/-, in default of payment of fine to further undergo imprisonment for 15 days. Both the sentences were ordered to run concurrently. [2] 2. Briefly stated the facts of the case are that on 07.04.2005 on the basis of the Parcha Bayan of complainant Smt. Shankuntala, FIR No. 56/2005 was registered for the offence under Section 307 IPC at Police Station Nadoti, wherein it was alleged that the house of the accused-appellant Udaibhan and the complainant are adjacent and on 07.04.2005 at about 06.00-06.30 p.m., Udaibhan came to her house with a 12 Bore gun on motorcycle No. RJ-34/M-3907. The husband of the complainant and brother-in-law (Devar) Janak were sitting outside the house. When the motorcycle of the accused- appellant Udaibhan slipped, he, after abusing, fired on a person thrice by gun and the injury inflicted by pellets on the thumb of her husband. Thereafter the accused-appellant went to his house and again opened fire on a boy and also fired on Guddi, who received gunshot injury and was admitted in the SMS Hospital. 3. After registering the case, the police started investigation. The accused-appellants were arrested. At the instance of the accused-appellant gun was recovered. After completion of the investigation, charge-sheet for the offence under Section 307 IPC and Section 3/25 of the Arms Act was filed against the accused-appellant and trial commenced. Thereafter charges for the aforesaid [3] offences were framed against the accused-appellant, who denied the charges, pleaded innocence and claimed trial. 4. The prosecution in support of its case examined as many as 13 witnesses and aslo got exhibited some documents. The accused-appellant in his statements under Section 313 Cr.P.C. stated that he has falsely been implicated in the case. In defence, one witness was examined and some document were also got exhibited. 5. The Additional District & Sessions Judge (Fast Track), Hindaun City, District Karauli, having heard rival submissions of the respective parties vide its impugned judgment dated 25.09.2006 convicted and sentenced the accused-appellant as indicated herein above. 6. The impugned judgment dated 25.09.2006 has been challenged by the accused-appellant on the ground that the prosecution has utterly failed to prove its case against the accused-appellant beyond reasonable doubt as there are several infirmities and contradictions in the statements of the prosecution witnesses and no reliance can be placed upon their testimony. [4] 7. Further challenge to the impugned judgment is on the ground that the trial Court has not properly considered the injury report Ex.P3, X-ray report Ex.P4 and more particularly the statement of PW2 Dr. Shreeram Meena, who prepared the above injury report and X-ray report and has categorically stated in his statement that all the injuries received by injured Guddi are simple in nature. Thus, looking to the nature of injuries, no case for the offence under Section 307 IPC is made out against the accused-appellant and at the most the case will not travel beyond Section 324 IPC. 8. It has also been alleged that the trial Court failed to properly consider the statements of PW3 Shankuntala, PW5 Hari Singh and PW7 Gopal as all these witnesses are relatives and their testimony suffers from contradictions and omissions. These witnesses have deposed in their statements that the accused and the complainant party are real relatives and the accused-appellant had no personal enmity with injured Guddi. 9. Further the trial Court also not considered the fact that the prosecution failed to produce the gun recovered from the possession of the accused-appellant after six months from the date of the incident. [5] 10. Learned counsel appearing for the accused- appellant also submits that the trial Court has not properly considered the statement of PW6 Guddi because if her statement is accepted in whole, then also no offence under Section 307 IPC is made out against the accused-appellant as she has stated in her statement that the appellant fired on Hari Singh but Hari Singh saved himself under the shadow of tree and the fire hit her. Thus, it is clear from the statement of PW6 Guddi that there was no intention of the appellant to kill the injured Guddi. 11. It is also contended that compromise was arrived at between the parties but the same was not attested by the Court. Since there was no intention or motive of the accused-appellant, therefore, no case under Section 307 IPC is made out against him. 12. It has also been contended that in the present case no FSL report regarding gun was submitted and pellets were also not recovered and, therefore, in the absence of FSL report the accused-appellant cannot be convicted under Section 307 IPC. 13. In support of his submission that due to lack of medical evidence the guilt cannot be [6] proved, learned counsel for the accused-appellant placed reliance on the judgments rendered by this Court in the case of Gurdeep Singh Vs. The State of Rajasthan, reported in 1995 R.C.C. 19 and in the case of Mool Chand and others Vs. State of Rajasthan, reported in 1997 R.C.C. 139. 14. Per contra, learned Public Prosecutor appearing for the State strongly controverted the submissions made on behalf of the accused-appellant and submits that the accused-appellant is a history-sheeter and as many as 12 criminal cases are pending against him under various Sections and the offence alleged to be committed in the instant case is in continuation of the offence committed by the accused-appellant on the same day along with co-accused Batti Lal, in which he caused firearm injuries on Ramkishore Meena, whereupon FIR No. 57/2005 was registered at Police Station Nadoti for offence under Section 394 IPC and vide judgment dated 25.09.2006 passed by the Additional District & Sessions Judge (Fast Track), Hindaun City, District Karauli in Sessions Case No. 14/2006 (75/2005), the accused-appellant Udaibhan along with co-accused Batti Lal was convicted under Sections 326/34 and 394/398 IPC and sentenced to undergo rigorous imprisonment for 5 years with a fine of Rs. 1,000/- each, in default of payment of [7] fine to further undergo imprisonment for three months under Section 326/34 IPC and to undergo rigorous imprisonment for 7 years with a fine of Rs. 2,000/- each, in default of payment of fine to further undergo imprisonment for six months under Section 394/398 IPC and both the sentences were ordered to run concurrently. 15. It has been further contended by the learned Public Prosecutor that the prosecution is able to prove its case against the accused- appellant beyond reasonable doubt. 16. PW10 Jagmohan, who was Constable at Police Station Nadoti, in his statement has stated that on 07.09.2005 the accused appellant was arrested and a 12 bore gun was also recovered and recovery memo Ex.P14 was prepared. 17. With regard to compromise, it has been submitted by the learned Public Prosecutor that the compromise deed was written under threat of the accused as the accused is a habitual offender and being a habitual offender, there is terror of the accused in the area and the same has rightly not been attested by the trial Court as the offence committed by the accused is not compoundable. [8] 18. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 25.09.2006 as also the material and evidence available on the record. 19. Upon bare perusal of the record, it is clear that apart from the aforesaid offence, on the same day i.e. 07.04.2005 at about 07.00 a.m., accused-appellant Udaibhan along with co-accused Batti Lal opened fire on complainant Ramkishore Meena who suffered grievous gunshot injury on the palm of his right hand, upon which a case for the offence under Section 394 IPC was registered against the accused at Poilce Station Nadoti and the accused-appellant along with co-accused Batti Lal was convicted and sentenced by the trial Court as mentioned herein above. Against the aforesaid judgment dated 25.09.2006, the accused-appellant Udaibhan along with co-accused Batti Lal preferred a S.B. Criminal Appeal No. 1048/2006 and the said appeal of the accused-appellant Udaibhan has also been dismissed by this Court vide judgment dated 21.08.2008 upholding his conviction and sentence awarded vide judgment dated 25.09.2006. 20. Just after few hours of committing the offence in relation to FIR No. 57/2005 which was [9] registered at Police Station Nadoti, the accused- appellant Udaibhan committed this offence at about 06.30 p.m. on the same day. 21. In this case the prosecution also obtained sanction to try the case for the offence under Section 3/25 of the Arms Act and the same was duly accorded by the District Magistrate. 22. The prosecution witnesses are able to prove the guilt and act of the accused-appellant beyond reasonable doubt that he opened fire on Guddi and Gopal in which they received gunshot injuries. May be the injuries sustained by Guddi are observed as simple in nature, but looking to the intention to cause the gunshot injury, the accused-appellant has rightly been convicted and sentenced for the offence under Section 307 IPC and as 12 Bore gun recovered from the accused-appellant was without licence, the prosecution is able to prove the guilt of the accused-appellant under Section 3/25 of the Arms Act. 23. I have also gone through the judgments referred by the learned counsel for the accused- appellant. 24. In the case of Gurdeep Singh Vs. The State [10] of Rajasthan (supra), this Court has observed that “Medical evidence not showing the injuries to be dangerous to life or sufficient in the ordinary course of nature to cause death- Held: Mere fact that a firearm was used to cause injury will not necessarily bring the case u/s. 307 IPC. It cannot be presumed that the accused intended to cause death simply because he used a firearm to cause hurt. The intention of the accused person has to be ascertained and established from the nature of the act actually committed by him or from the surrounding circumstances.” 25. As observed herein above, the offence alleged to be committed in the present case was in continuation of the first offence committed by the accused-appellant with co-accused Batti Lal for which FIR No. 57/2005 was registered at Police Station Nadoti. With regard to intention of the accused-appellant to cause death, the accused- appellant used firearm and he being a habitual offender and very casual in using firearm to threaten and kill the persons, the prosecution in this case has proved the intention of the accused- appellant beyond reasonable doubt. 26. In another judgment rendered by the Division Bench of this Court in the case of Mool [11] Chand and others Vs. State of Rajasthan (supra), referred by the learned counsel for the accused- appellant, this Court has held that “Trial Judge placing reliance on testimony of eye-witness- Doctor opined cause of death of deceased was gun- shot injury- No pellet or bullet was found during post-mortem- Country made pistol and fire cartridges were recovered and seized from the information of appellant- Not send for ballistic report- Testimony of eye-witness not supported by expert evidence- Total inconsistent with medical evidence- Incident took place in broad-day-light but no witness of locality produced- Held prosecution has failed to prove the case beyond reasonable doubt.” 27. Applying the ratio decided by the Division Bench, here in the present case, there are eye- witnesses and PW13 Dharamveer Singh, SHO arrested the accused-appellant and gun was also recovered. The eye-witnesses have supported the prosecution story and merely because the country made pistol was not sent for ballistic report, it cannot be held that the prosecution failed to prove its case against the accused-appellant beyond reasonable doubt, on the contrary, the prosecution witnesses, as observed herein above, proved the guilt of the accused-appellant beyond reasonable doubt. [12] 28. Thus, looking to the overall facts and circumstances of the case and considering the fact that there are as many as 12 criminal cases pending against the accused-appellant under the various Sections and he is a habitual offender, no case of any interference in the impugned judgment dated 25.09.2006 is made out. The accused-appellant has rightly been convicted and sentenced under Section 307 IPC and Section 3/25 of the Arms Act. 29. In the result, the present criminal appeal fails being devoid of merit and the same is hereby dismissed. The impugned judgment of conviction and order of sentence dated 25.09.2006 passed by the Additional District & Sessions Judge (Fast Track), Hindaun City, District Karauli is upheld. 30. Since the appeal of the accused-appellant has been dismissed, the order dated 06.07.2007 passed by this Court suspending the sentence of the accused-appellant also stands rejected, though the accused-appellant could not furnish the bail bonds in compliance of the order dated 06.07.2007 as he is in custody in connected S.B. Criminal Appeal No. 1048/2006. 31. An application Inward No. 6993 dated 07.08.2007 has also been filed on behalf of the [13] accused-appellant for deferring the appearance of the accused-appellant before this Court as he is in custody in S.B. Criminal Appeal No. 1048/2006. Upon dismissal of the appeal, the aforesaid application also stands rejeceted. (K.S. RATHORE), J. /KKC/ (Hearing/reserved)