IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 554-SB of 1997 Hanuman … Appellant Versus State of Haryana … Respondent and Criminal Revision No.969 of 1997 Balwan … Appellant Versus Hanuman and another … Respondents Date of decision: 12th January, 2010 CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Atul Lakhanpal, Senior Advocate with Mr. Surinder Batra, Advocate for the appellant. Mr. Deepak Jindal, Deputy Advocate General, Haryana for the State. Mr. Sudhir Sharma, Advocate for the complainant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) By this common order, (1) Criminal Appeal No.554-SB of 1997 titled ‘Hanuman v. State of Haryana’ and (2) Criminal Revision No.969 of 1997 titled ‘Balwan v. Hanuman and another’ shall be decided together. Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 Hanuman aged 25 years was nominated as accused in case FIR No.124 dated 04.03.1995 registered at Police Station Sadar Hisar under Section 307 IPC. The Court of Additional Sessions Judge, Hisar vide judgment dated 10th July, 1997 found him guilty of offence under Section 307 IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for six months. Hanuman had caused injuries to Balwan from a fire arm (country-made pistol). In both the appeals filed by Hanuman, he has assailed the judgment passed by the Court of Additional Sessions Judge, Hisar and has prayed that conviction and sentence imposed by the trial Court be set aside. Balwan has filed criminal revision and has prayed that sentence awarded upon Hanuman be enhanced. In the Revision Petition, no notice was issued, however, it was ordered that the same be heard along with criminal appeals preferred by Hanuman. Right of audience has been granted to Mr.Sudhir Sharma, Counsel for the petitioner. A Medico legal report pertaining to Balwan, along with a ruqa regarding admission of Balwan in hospital, was received in Police Station Sadar Hisar. On receipt of the same, ASI Dharam Vir presented himself at General Hospital, Hisar and recorded statement Ex.PV of Balwan. In his statement, Balwan stated that he is engaged in labour work. On 4th March, 1995 at about 1.30 p.m., he was going to the house of his uncle Shiv Narain. The house of accused Hanuman alias Musta adjoins the house of Shiv Narain. While, Balwan was going to the house of his uncle, accused met him in the lane and told that the complainant had got the liquor recovered by the police from him and his brother Daya Nand, therefore, he will teach him a lesson. The complainant replied that accused was wrongly suspecting, in fact he had not got any liquor 2 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 recovered. The accused started abusing and at once went inside his house and from the Chobara of his house came on the roof of the house of Ram Kumar son of Dei Ram. From the roof of the house, Hanuman fired three shots from a country-made pistol. The shots were aimed at the complainant with intention to cause his murder. One fire shot hit and pierced through the right knee of the complainant. The occurrence was witnessed by Partap son of Issa Ram and Mange Ram son of Girdhari Lal, who were standing in the lane. On the asking of the witnesses as to why the accused had fired shots, accused decamped from the spot along with the weapon and the injured was brought by Partap and Mange Ram to his house, from where father of the injured complainant got him admitted for treatment at Civil Hospital, Hisar. Statement of the injured was recorded by ASI Dharam Vir on 4th March, 1995 at 6.00 p.m. at General Hospital, Hisar. On the basis of the statement Ex.PV, formal FIR Ex.PV/11 was registered. The above said FIR was investigated and report under Section 173 was submitted. The case and the accused were committed to the Court of Sessions and were entrusted to Additional Sessions Judge, Hisar. The appellant on 29th August, 1995 was charged for offence under Section 307 IPC. The charge stated that on 4th March, 1995 in the area of Arya Nagar, Hanuman had fired at Balwan from illicit pistol with such intention or knowledge and under such circumstances that if by that act he had caused the death of Balwan he would have been guilty of murder and thus he committed offence punishable under Section 307 IPC. The appellant pleaded not guilty and claimed trial. Prosecution examined Dr.B.L. Bagari, Medical Officer, General Hospital, Hisar as PW-11. He had examined the injured Balwan on 4th March, 1995 at 2.10 p.m. and found following injuries: 3 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 1. There was a lacerated wound 4 x 1 ½ cm on the anterior aspect of right thigh 8 cm away from right knee. Edges were inverted and abraded on the medical size. Blackening was present, fresh bleeding was present and was painful and vertical placed. Corresponding cut present on the back. 2. There was a lacerated wound 4 x 2 cm in the lateral aspect of right thigh 8 cm away from the right knee. Edges everted. Fresh bleeding was present and was painful. Corresponding cut was present on the back. X-ray right thigh was advised for injuries No.1 and 2. According to this witness, injuries were caused by fire arm and the duration of the injuries was with six hours. Injury No.1 on the person of Balwan was an entry wound and injury No.2 was exit wound. In cross examination, the doctor stated that injury was on the frontal portion of the thigh. The doctor further stated that thigh is considered as non-vital part of the body. In the present case, since the blackening was found, this witness was subjected to cross examination to determine the distance of the shot. The doctor had to say as under: “It is correct that if a shot is fired from a close range, then there will be burning on the cloth. It is correct that doctor Modi at page 239 in Medical Jurisprudence in 20th Edition has observed ‘at a distance of 1 to 3 ‘ small shot make a single aperture with irregular and lacerated edges corresponding in 4 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 size to the bore of the muzzle of the gun.’ It is also correct that if a shot is fired from a distance of 6’ the central aperture is surrounded by separate openings in an area of about two inches in diameter made by a few pellets of the shot which spread out before reaching the mark. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke. In this case, taking into consideration blackening in the wound, the shot has been fired from the distance of 1 to 3 feet.” Dr.Arun Gupta PW-1 had radiologically examined Balwan on 7th March, 1995. He found no bony injury or any radio opique shadow of metallic density. K.C. Khurana, Statistical Assistant from Govt. Hospital Hisar appeared as PW-4 and proved bed head-ticket of Balwan. He stated that the injured was admitted in the hospital on 4th March, 1995 and was discharged on 13th March, 1995. Shamsher Singh Draftsman PW-3 had prepared scaled site plan Ex.PC. The scale used was 1 inch = 15. The witness stated that he had gone to the roof of the house of Ram Singh. However, he denied that the distance between point A and point B is 48 feet. Karan Singh, Head Constable PW-5, Constable Mohd. Hanif PW-7, Head Constable Khyali Ram PW-8, Constable Pardeep Kumar PW-9 and Head Constable Deva Singh PW-10 tendered their affidavits, Ex.PE, PG, PH, PJ and PK respectively to prove link evidence. Head Constable Kanwar Singh PW-6 brought the FIR register and proved that Daya Nand brother of the appellant was accused in case of recovery of 100 bottles of illicit liquor. This witness was examined to prove motive. Amar Singh PW-12 stated that on 8th March, 1995, he was joined by the police party at bus stand Arya Nagar and Hanuman 5 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 appellant was interrogated by the police party. Accused suffered disclosure statement Ex.PR, in which he stated that the pistol, by which he had fired on Balwan along with three empty cartridges, was concealed in the fields of Nanu Ram in the roots of Kikkar tree. Thereafter, the weapon and empties were taken into possession and were wrapped in a cloth. In pursuance of disclosure statement suffered by the accused, he got recovered pistol Ex.P2 and empties Ex.P3 to P5. The rough sketch of the pistol Ex.PS was prepared. Memo of possession and recovery Ex.PT was prepared. However, in cross examination, this witness admitted that Balwan injured was his grandson. This witness further submitted that Thanedar had told the accused that in case he makes the disclosure statement regarding pistol he would be saved from being given torture. Balwan injured appeared as PW-13 and reiterated what was stated in the FIR. This witness deposed that after the accused had given abuses, Mange Ram and Partap Singh met him and asked about the incident. He told them regarding altercation which had taken place. The accused Hanuman went on the roof of house of Ram Kumar, raised a Lalkara and fired a shot from the roof of the house, which hit the injured Balwan on right leg above the knee. Thereafter, the accused had fired another two shots, which had not hit the injured. Mange Ram PW-14 corroborated the testimony of PW-13 Balwan and stated that accused Hanuman had fired three shots. ASI Dharambir PW-15 on receipt of medico legal report Ex.PL of Balwan Singh, went to the General Hospital, recorded statement of Balwan Ex.PV, made endorsement thereupon Ex.PV/1, on the basis of which formal FIR Ex.PV/2 was recorded. He inspected the spot, prepared rough site plan Ex.PW and had recorded statement of witnesses Partap Singh and Mange Ram under Section 161 Cr.P.C. This witness had taken the clothes of the injured into possession. Thereafter, he effected the 6 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 recovery of pistol, details of which have been given. This witness also proved disclosure statement and the recovery memo. Thereafter, statement of the accused Hanuman was recorded under Section 313 Cr.P.C. and all incriminating circumstances were put to him. He denied the same and pleaded false implication. I have heard Mr. Atul Lakhanpal, Senior Advocate assisted by Sh.Surinder Batra, Advocate, appearing for the appellant. Mr.Lakhanpal has referred to site plan Ex.PC prepared by Shamsher Singh Draftsman PW-3 and has submitted that the distance of the place where the accused fired shot from the place where the injured received injury is 48 feet. Further referring to site plan and the statement of witnesses, learned counsel has contended that accused has allegedly fired a shot while standing on the roof and the injured was standing in the street. Therefore, the shot was fired from a considerable distance. Whereas, in the medical evidence, PW-11 Dr.B.L. Bagari had noticed blackening. Relying upon cross examination, learned counsel has pleaded that blackening can occur from a distance of 1 to 3 feet only. Therefore, medical evidence contradicts the ocular version and no reliance can be placed upon the testimony of PW-13 Balwan and PW-14 Mange Ram. This Court cannot become oblivious of the fact that as per the witnesses, three shots were fired. Only one shot had hit the knee of the injured Balwan PW-13. First, an altercation had taken place in the street. The possibility cannot be ruled out that the first shot was fired in the street and other two shots were fired from the roof. The first shot, which had hit the witness, is from very close range and had hit only the knee. There is only one injury suffered and in the medico legal report injury No.1 noticed is an entry wound and injury No.2 is an exit wound. In these circumstances, this Court has to ponder that if a shot is fired from a 7 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 very close range and then also accused chooses the lower part of the body, i.e. knee of the injured, what offence will be made out ? This question is to be examined in the context that the two shots had not hit the injured. They were fired from a considerable distance of 40 feet. The shots had lost their velocity and had not remained lethal. The witnesses have also not specifically stated that other two shots were aimed at the injured. The matter of fact remains that only one shot had hit the injured Balwan and that too at the knee from a close distance. This Court also cannot ignore the fact that in the present case, occurrence had taken place on 4th March, 1995 at 1.30 p.m. Even though, the injured had made a statement to Dharamvir ASI PW-15 on 4th March, 1995 at 6.30 p.m. After registration of the case, special report was dispatched on 5th March, 1995 at 8.00 a.m., therefore, taking the delay into consideration, it cannot be ruled out that firing of two other shots was introduced to exaggerate the version. Dr.B.L. Bagari PW-11 stated that nature of injuries was kept under observation. He further stated that on 30th March, 1995, police made an application to him, on which he opined that as per the X-ray report, injuries which were kept under observation, were simple in nature. Thereafter, the doctor had sought Surgeon’s opinion. K.C. Khurana PW-4 from the bed head-ticket proved that injured was admitted on 4th March, 1995 and was discharged on 13th March, 1995, therefore, injured remained admitted in the hospital for a period of less than 20 days. In these circumstances, the Court will have to determine as to what offence is made out. The Hon’ble Apex Court in ‘Sital Singh v. State of Punjab’ 1983 Criminal Appeal Reporter 291, held that where a gunshot injury is caused to the deceased on the upper thigh without pre-meditation, the same shall constitute an offence under Section 304 Part-I IPC and not under Section 302 IPC. In ‘Hari Kishan & State of Haryana v. Sukhbir 8 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 Singh and others’ 2003(4) RCR (Criminal) 105, Single Judge of this Court observed as under: “17. The Hon’ble Supreme Court in Sarju Prasad v. State of Bihar, AIR 1965 Supreme Court 843, held that to attract the provisions of Section 307 IPC, it is necessary for the prosecution to establish that intention of the accused in causing the injury was of any of the three kinds referred to in Section 300 IPC and unless the prosecution discharges the burden, the offence under Section 307 IPC cannot possibly be brought home. In the said case, the accused had caused an injury with the knife in a vital region but no vital organ of the injured was cut as a result of injury. However, he was convicted by the Court below for an offence under Section 307 IPC. The Hon’ble Supreme Court held that the state of mind has to be deduced from the surrounding circumstances. Besides also the existence of a motive to cause death would be a relevant consideration. Taking the totality of the circumstances, it was held that there was no intention of murder or to cause any injury which may result in death could be inferred. Accordingly, it was held that the prosecution had not established that the offence committed fell squarely under Section 307 IPC and that in its opinion, it amounted to an offence under Section 324 of the IPC. In the case of Kundan Singh v. State of Punjab, AIR 1982 Supreme Court page 62, the victim received simple injuries from gun shots fired by the accused. The injured were in the courtyard of their house, when the accused fired the gun shots. It was held that the accused could not have intended to injure them. The conviction of the appellant for the offence under Section 307 IPC was held to be not justified and it was altered to that of an offence under Section 324 of the IPC since the victim received simple injuries.” In the present case, Balwan Singh PW-13 had stated that after the accused had given him abuses, Mange Ram and Partap Singh were attracted at the spot. On their asking as to what had happened, he disclosed to them that an altercation had taken place. Therefore, abuses 9 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 and an altercation prompted the accused to fire shot. The occurrence had taken place on the spur of moment, without any pre-meditation. Only one shot had hit the injured and that too from a close range on the lower portion of the body, at knee. It can be safely inferred that when from a close range shot was fired, the accused had purposely fired shot at knee and had avoided to cause fire-shot injury on the head and the chest. This Court cannot become oblivious of the fact that when a shot is fired from a distance of 1 – 3 feet, accused has always an option to fire the shot at the vital part of the body. The accused from close distance, having opportunity, had fired the shot at the knee. Firing of other two shots has been discounted by this Court as a blemish, due to delay in reaching of the special report. Otherwise also, two shots had not hit the injured. Merely because a fire arm has been used, will not bring the case under Section 307 IPC. Reliance has been placed upon ‘State of Punjab v. Parveen Kumari and others’ 1991(3) RCR (Criminal) 422. Therefore, this Court is of the view that the offence will not fall under Section 307 IPC but under Section 308 IPC. In these circumstances, accused is acquitted for the offence under Section 307 IPC, but is convicted under Section 308 IPC and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.25,000/-, in default of payment of fine to further undergo rigorous imprisonment for four months. The amount of fine so deposited, shall be disbursed as compensation to the injured Balwan. With the observations made above, Criminal Appeal No. 554-SB of 1997 is disposed of. Criminal Revision No.969 of 1997 has been filed by injured Balwan praying that sentence imposed upon the accused by the trial Court be enhanced. This Court has already held that the offence fall under Section 308 IPC and has reduced the sentence awarded to 10 Criminal Appeal No.554-SB of 1997 & Criminal Revision No.969 of 1997 accused Hanuman to three years rigorous imprisonment. However, this Court has imposed fine of Rs.25,000/- to be paid as compensation to the injured Balwan. In the revision petition preferred by Balwan, no notice was issued to the accused and the same was ordered to be heard along with Criminal Appeal No. 554-SB of 1997. In these circumstances, no interference is warranted in the present revision petition and the same is disposed of with the observation that the fine so deposited shall be disbursed as compensation to the injured Balwan. [KANWALJIT SINGH AHLUWALIA] JUDGE 12th January, 2010 rps 11