IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.442 of 2008 Decided on: July 13, 2009. Mahboob Khan …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. Kulbhushan Khajuria, Advocate. For the Respondents : Mr. Ramesh Thakur, Assitant Advocate Generala. Surjit Singh, Judge (oral) Appellant is aggrieved by the judgment dated 30th June, 2008 of learned Sessions Court, Chamba, whereby he has been convicted of offences, under Sections 452 and 307 IPC and Section 27 of the Arms Act, 1959, and sentenced as follows: Section 452 IPC Rigorous imprisonment for two years and fine of Rs.5000/-; in default of payment of fine simple imprisonment for a further period of three months Section 307 IPC Rigorous imprisonment for seven years and fine of Rs.10,000/-; in default of payment of fine simple imprisonment for a further period of six months Section 27 of the Indian Arms Act Rigorous imprisonment for three years and fine of Rs.5000/-, in default of payment of fine simple imprisonment for a further period of three months. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Case was registered at Police Station, Chamba, against the respondents and two other persons, namely Neeraj Singh and Sikand Kumar, at the instance of PW-18 Des Raj. Said Des Raj reported to the police on 20.1.2006, around 10.00 PM, that on that very day, around 8.00 PM, when he and his son PW-2 Vipin Rana were present in the office of PW- 17 K.K. Gupta, Advocate, clerk of said K.K. Gupta, Advocate, came there and told that Mehboob Ali Khan with two boys was hiding himself near the stairs, leading to the office, and they were having two fire arms, which looked like revolvers. Upon this, Shri K.K. Gupta, Advocate, whose office is on the first floor of a building by the side of a road, peeped outside and saw the appellant (Mehboob Ali Khan), in the company of two boys. He advised PW-18 Des Raj to inform the police as he (Des Raj) and the appellant were having inimical relations. 3. In the meanwhile, appellant came to the verandah of the office of PW-17 Shri K.K. Gupta, Advocate and asked his Munshi (clerk) to supply a sheet of paper. Upon this, Shri K.K. Gupta, Advocate, asked the appellant that he had not come to get a sheet of paper only, but for some other purpose. PW-2 Vipin Rana then came out of the office with a view to catching hold of the appellant. Appellant fired two shots, one from each of the two fire arms, which he was having. Fire arms looked like revolvers, but, in fact, they were country made fire arms, known as ‘Kattas’ in common parlance through which cartridges having pallets are usually fired. One of the two shots hit PW-2 Vipin Rana on the left upper arm, causing six …3… wounds, one measuring 2x1x½ cm and the remaining 1x1x1 cm. each. 4. PW-2 Vipin Rana was pulled inside the office and door was shut. Thereafter the appellant jumped down the breast wall of the road and escaped. His two companions also ran away. After that injured Vipin Rana was taken to hospital by his father PW-18 Des Raj. His medical examination was conducted. He was referred to Govt. Medical College-cum- Hospital, Tanda in Kangra District, for removal of pallets. Doctor gave the opinion that had the shot hit Vipin Rana on some vital part of his body, it could have proved fatal. Police investigated the case. Country made revolvers (Kattas) were recovered from the appellant. Those were sent to Ballistic Expert, who gave the opinion that both the weapons could be fired through and that the wads, recovered from the spot and sent to him, could have been of .12 cartridges, which could have been fired through either of the two weapons. On completion of investigation, report, under Section 173 Cr. P.C. was filed against the appellant. 5. Case was committed to the Sessions Court by the concerned Magistrate, after complying with the legal requirements. Appellant and his two companions, named above, were charged with the offences, under Sections 307 and 452 IPC and Section 27 of the Arms Act. They pleaded not guilty and were, therefore, put on trial. 6. Prosecution examined Vipin Rana as PW-2, his father Des Raj as PW-18, Dildar Ali Shah as PW-3, Advocate …4… K.K. Gupta as PW-17, besides other witnesses, to bring the charge home to the appellant. 7. Prosecution could not lead evidence, indicating that the two co-accused of the appellant were the persons, who were with him on the relevant evening. Therefore, the trial Court acquitted them. Present appellant was, however, held guilty and convicted and sentenced, as aforesaid. 8. I have heard the learned counsel for the parties and perused the evidence. 9. Learned counsel for the appellant does not deny the incident. Rather he concedes that the evidence on record, particularly the testimony of PW-2 Vipin Rana, his father PW-18 Des Raj, PW-17 K.K. Gupta, Advocate and PW-3 Dildar Ali Shah, proves the occurrence. He, however, submits that from the testimony of these very witnesses, it is clear that this is not a case of attempted murder, but of causing hurt by means of a fire weapon. He has drawn my attention to the testimony of PW-1 Dr. S.K. Mahajan as also the statements of above named four witnesses, to bring his point home. 10. PW-2 Vipin Rana stated that when he came out on seeing the appellant, the latter placed the barrels of both of his revolvers on his chest and that his father was standing behind him at that time. He also stated that he turned back to avoid being hit by the possible shot and it was then that two shots were fired at him by the appellant. Now if the appellant had placed the barrels of his revolvers on the chest of PW-2 Vipin Rana, it could not have taken a fraction of second, to …5… press the trigger and to pump the entire volley of pallets into his chest, if the intention of the appellant were to kill him. But he did not fire the shot when the barrels of weapons were allegedly placed on the chest of Vipin Rana. 11. PW-17 K.K. Gupta, Advocate, stated that when the appellant came to verandah of his office and asked for a sheet of paper, he (the witness) told him (the appellant) that he had not come to get a paper sheet only upon which PW-2 Vipin Rana, who was sitting on a chair in front of him, went outside and tried to catch hold of Mehboob Khan and that he and other persons present in his office also followed Vipin Rana. He stated that the appellant fired two shots and that second shot was fired 2-3 minutes after the first one had been fired. 12. PW-1 Dr. S.K. Mahajan testified that pallets, which hit the left upper arm of the injured, had been fired from a distance less than two mertres, as he had noticed charring around the wounds on the left upper arm. 13. It has come in the evidence that PW-2 Vipin Rana was wearing a full sleeve sweater and a shirt and the pallets hit his arm, after piercing through the said sweater and the shirt and still there was charring around the wound, which suggests that distance should have been much less than the optimum limit, testified by PW-1 Dr. S.K. Mahajan. The fact that the shot did not hit Vipin Rana on any vital part of his body, but only a few pallets hit him on his left upper arm, despite the fact that the shot was fired from a very close range as also the fact that the appellant, per testimony of …6… PW-2 Vipin Rana, had the opportunity to shoot him from very close range, when he allegedly placed barrels of his revolvers on his chest, negate the prosecution version that the appellant had the intention of killing Vipin Rana. Further, the fact that the second shot, which was fired at a gap of 2-3 minutes, did not cause any harm to anybody, strengthens the aforesaid view. It appears that shots were fired by the appellant only to scare away PW-2 Vipin Rana who came out to overpower him, as testified by PW-17 K.K. Gupta, Advocate. 14. In view of the above stated position, submission made by the learned counsel for the appellant that this is not a case of attempted murder, but only a case of voluntarily causing hurt by means of fire arm, appears to be well founded. Evidence on record does not show that injuries sustained by PW-2 Vipin Rana were grievous in nature. According to PW-1 Dr. S.K. Mahajan, one wound was superficial and remaining five were 1x1x1 cm deep. Even though surgery was required to remove some of the pallets, which was carried out in Government Medical College-cum- Hospital, Tanda, in Kangra District, that by itself would not take the wounds to the category of grievous hurt, in the absence of any specific evidence. That means, the injuries, which were caused by the appellant, were simple in nature. 15. As a result of the above stated position, appeal is partly accepted. Conviction of the appellant for the offence, under Section 307 IPC is set aside and instead the appellant is convicted of offence, under Section 324 IPC. His conviction …7… and sentence for the remaining two offences, viz., under Section 452 IPC and Section 27 of the Arms Act, 1959, are maintained. As regards the offence, under Section 324 IPC, the appellant is sentenced to undergo imprisonment for two years and to pay a fine of Rs.2000/-. Appellant has been in jail since 20th March, 2006. That means, he has already been in jail for more than three years, the maximum sentence, on any one of the three counts, i.e. three years rigorous imprisonment for offence, under Section 27 of the Arms Act as awarded by the trial Court. It is, therefore, ordered that he be released, immediately, in case his detention is not required in any other case. Appeal stands disposed of. July 13, 2009 (ss) ( Surjit Singh ), J.