Criminal Appeal No. 142-SB of 1998. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No. 142-SB of 1998. DECIDED ON : Ajay son of Suraj Mal Appellant. VERSUS State of Haryana. Respondent. CORAM : Hon'ble Mr. JUSTICE JORA SINGH. Present:- Mr. Vikas Malik, Advocate, for the appellant. Mr. Kartar Singh, Assistant Advocate General, Haryana. JORA SINGH,J. Ajay son of Suraj Bhan, resident of Village Mandothi, District Rohtak, has appealed against the judgment and order dated 7.2.1998 in Sessions Case No. 1 dated 3.1.1997 bearing First Information Report No. 294 dated 16.9.1996, under Sections 307/34 of the Indian Penal Code and Section 25 of the Arms Act, Police Station Sadar Bahadurgar, by Additional Sessions Judge, Rohtak. Vide this judgment, Ajay accused-appellant was convicted under Section 307 of the Indian Penal Code and 25 of the Arms Act and was sentenced to undergo rigorous imprionment for five years and to pay a fine of Rs.1000/- under Section 307 I.P.C. Criminal Appeal No. 142-SB of 1998. 2 In default of payment of fine, he was further ordered to undergo further rigorous imprisonment for four months. He was also sentenced to undergo rigorous imprionment for two years under Section 25 of the Arms Act. However, both the substantive sentences were ordered to run concurrently. Benefit of doubt was given to the co-accused Vijender. He was acquitted of the charges levelled against him. Prosecution story, in brief, is that on 15.9.1996 at about 7.15 P.M. Ram Phal complainant, resident of village Mandothi, was present in front of his house. Ajay and Vijender accused armed with pistol came from the side of Gora of the village. Ajay fired from his pistol to eliminate the complainant by saying that he is to be taught a lesson for getting him (Ajay) arrested earlier. One year before the present occurrence, Ajay accused was got apprehended in a theft case by the complainant and due to that enmity, Ajay and Vijender attempted to eliminate him(the complainant). The shot fired by Ajay accused grazed pass the right shoulder of Ram Phal complainant. Raula was raised. On hearing raula and sound of fire, Harish Chander son of Ram Phal and Krishsan came to the spot, then the accused had fled away from the spot with their respective pistol. Complainant had gone to lodge report to the Police. The Police Party headed by Assistant Sub Inspector Chhaju Ram , met near bus stand Mandothi. Statement of Ram Phal Ex.PB was recorded. After making endorsement, the same Criminal Appeal No. 142-SB of 1998. 3 was sent to the Police Station, on the basis of which, formal First Information Report was registered. SHO Chajju Ram alongwith the police party had gone to the spot. Rough site plan Ex.PH with correct marginal noted was prepared. Statement of the witnesses were recorded. Vide application Ex.PJ, Ram Phal was got medico legally examined from General Hospital, Bahadurgarh. M.L.R. is Ex.PF. Vijender accused was arrested on 25.9.1996, while he was in custody in a case of Police Station, Sampla. Police Station, Sampla had recovered pistol from Vijender. Appellant-accused Ajay was declared proclaimed offender, ultimately he was arrested on 2.2.1997, qua recovery of pistol a separate case was registered. Scaled site plan Ex.PA was got prepared. Sealed parcel of the shirt of the complainant was sent to the Forensic Science Laboratory, Madhuban. Ex.PE is the report of Forensic Science Laboratory, Madhuban and as per report , the hole/tear on front right shoulder of the shirt had been caused by firing with a country made fire arm. After completion of investigation, the accused was challaned. Challan was presented. Copies were supplied to the accused and the same were found correct after scrutiny. As per order of the learned Judicial Magistrate, Ist Class, Bahadurgarh, this case was committed to the Court of Session, for trial. After hearing Public Prosecutor for the State and Criminal Appeal No. 142-SB of 1998. 4 defence counsel for the accused, learned Additional Sessions Judge,Rohtak found that a prima facie case under Section 307 of the Indian Penal Code and 25 of the Indian Arms Act was made out and they were charged accordingly, to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined as many as eight witnesses. The main witnesses to connect the appellant- accused with the crime are Ram Phal, injured-complainant and eye witness Krishan. Ram Phal while appearing as PW2 stated on oath that on 15.9.1996 at 7.15 P.M., he was present in front of the house of Hardwar. Then Ajay and Vijender came there armed with pistol. Ajay fired a shot hitting his right shoulder by saying that he was got arrested earlier. Krishan PW3 has supported the version of Ram Phal by saying that he alongwith Pappu alias Harish on hearing raula and sound of firing had gone to the spot. Ajay had fired a shot hitting Ram Phal. Ajay and Vijender had fled away from the spot. Ram Phal had told that Ajay had fired a shot hitting him. Doctor Om Parkash (PW7) had examined Ram Phal on 16.9.1996 at 12 noon. Injury noted was fire arm injury. After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations levelled against the accused. Accused denied all Criminal Appeal No. 142-SB of 1998. 5 the allegations and claimed to be innocent. Defence version of Ajay appellant-accused was that he was inimical towards the complainant party. Due to previous enmity, he was implicated in the present case. Opportunity was given to lead defence and in defence, two witnesses were produced, namely Sultan and Nafe Singh. Learned counsel for the appellant argued that there is a delay in lodging the First Information Report. Occurrence was on 15.9.1996 at 7.15 P.M., in the area of Mandothi, whereas the report was lodged at about 10.15 P.M. Delay of about 3-1/2 hours is fatal. Complainant party had a motive to implicate the appellant-accused because one year earlier, appellant-accused was got arrested in a theft case. To teach a lesson to the appellant-accused, he ( appellant-accused) was implicated in the present case. Medical evidence is contrary to the ocular evidence. Mr. Kartar Singh, Assistant Advocate General,Haryana, argued that delay is not fatal. Immediately, after the occurrence injured was shifted to hospital. Injury as per Doctor was with a fire arm. Complainant was not expected to suffer fire arm injury on the shoulder simply to implicate the appellant-accused. One year before the occurrence, appellant-accused was arrested in a theft case. Appellant-accused had a motive to commit the crime. No proof on the file that in the earlier case, appellant-accused was acquitted. Medical evidence is not contrary to the ocular evidence. In case, there is some discrepancy, then ocular Criminal Appeal No. 142-SB of 1998. 6 evidence is to be preferred. Doctor no where stated that injury was self suffered and self inflicted. If no pellet recovered, then story is not to be ignored because complainant stated that when there was a firing, then shot fired had grazed pas the right shoulder of the complainant. No illegality and the evidence was rightly appreciated by the trial Court. As discussed earlier, occurrence was on 15.9.1996 at 7.15 P.M. P.W.8 Chajju Ram, Assistant Sub Inspector was present near bus stand, complainant party had met the police party near bus stand, Mandothi. When statement of the complainant was recorded, the delay of about 3-1/2 years in lodging the First Information Report is not fatal. Accused- appellant was named in the First Information Report. Injury as per Doctor Om Parkash noted on the person of Ram Phal cannot be self-suffered and self-inflicted. Doctor had stated that injury noted on the person of Ram Phal was with fire arm. Before the present occurrence, appellant-accused was inimical towards the complainant. Occurrence was in front of the house of Hardawari. So, there was no idea to leave the real culprit and name the appellant-accused. If the complainant was to implicate the accused falsely, then complainant could easily state that second accused namely, Vijender acquitted by the trial Court had also fired a shot but unfortunately, shot did not hit him. Ram Phal in examination-in-chief stated that Vijender and Ajay were armed with pistol. They came from the side of Gora. Ajay had Criminal Appeal No. 142-SB of 1998. 7 fired a shot. Not a word stated that Vijender had fired shot or exhorted the co-accused to fire a shot or tried to catch hold of him. So delay, if any, was not fatal. Trial Court rightly opined that no prejudice was caused to the appellant-accused with the delay of 3-1/2 years. Second allegation of the appellant-accused was that due to previous enmity, false implication. Ram Phal in examination-in-chief stated that one year earlier to the occurrence, Ajay was got arrested in a theft case and in that case, he was absconding. Suggestion was given to Ram Phal that he did not identify the assailants. Last suggestion to the injured-complainant was that injury was by fall, but Doctor was not cross examined that injury noted on the person of Ram Phal was self suffered or self inflicted or injury was possible by a fall. That means Ram Phal suffered fire arm injury. Only grievance of the appellant-accused that Ram Phal injured failed to identify the assailants. In defence, Sultan appeared and stated that Vijender accused is his grand-son. They were inimical towards the complainant party. In the year 1982, Ram Phal had given injuries to his mother Sriyan. First Information Report was got registered. Ex.DA is certified copy of the First Information Report. Vijender is innocent but he has not stated a word why present appellant-accused was implicated in the present case. As per Ex.DA Ram Phal had caused injury in the year 1982. So due to dispute in the year 1982, there was no idea to implicate the appellant-accused in the year 1996. If Criminal Appeal No. 142-SB of 1998. 8 complainant had the intention to implicate the accused falsely then complainant could easily state that Vijender had fired a shot hitting his shoulder. On cross examination, DW Sultan stated that he did not notice injury being caused to Ram Phal. In the earlier case, for causing injury to his mother, Ram Phal was acquitted. So, story is not unnatural. Nafe Singh DW2 is the uncle of Ajay appellant- accused. Nafe Singh in examination-in-chief stated that complainant party was inimical towards the accused party. Two years back, Kartar son of Ram Phal had given jaili blow on his back. Report was lodged. Ex.DB is the copy of DDR, but on cross examination, Nafe Singh admitted that he has no knowledge about the occurrence of the present case. He did not witness the occurrence. He does not know, who caused injury to Ram Phal. As per DDR Ex.DB, no action was taken by the police. No complaint was instituted. Nafe Singh is not the eye witness. Ex.DB shows that there was previous enmity amongst the parties. Kartar son of Ram Phal had given jaili blow to Nafe Singh. In the year 1982, Ram Phal had given ballam blow to the mother of Sultan DW1. In the earlier litigation, Ram Phal was acquitted qua injury on the person of Nafe Singh. No action by the police. A private complaint was not instituted that means appellant-accused party had motive to commit the crime. One year earlier to the present occurrence, Ajay appellant-accused was got arrested by Ram Phal. Nothing to opine that due to previous enmity, appellant-accused was implicated falsely, rather appellant- Criminal Appeal No. 142-SB of 1998. 9 applicant had better motive to commit the crime. Learned Lower Court rightly held that previous enmity was the route cause of present occurrence. Last contention of the defence counsel was that medical evidence is contrary to the ocular evidence. Dr. Om Parkash appeared as PW7 and had noted the following injury on the person of Ram Phal:- “ One bruise present on right shoulder joint 5 cm x 3 cm reddish coloured. On the centre of burise, there was one abrasion of size 2-1/2 x 1 cm blackish brown coloured. The bruise was on the top of shoulder joint and antero-posterilor aspects. Corresponding tear was present on the shirt. There was slight blackening of the shirt around the tear. X-ray of shoulder joint and opinion of Forensic medicine expert was advised. Nature of injury was subject to X-ray and forensic lab report and kind of weapon was also subject to forensic lab report/opinion. The probable duration of the injury within 24 hours. Carban copy of MLR is Ex.PF. It is correct and signed by me. I have brought the original. I handed over the shirt of the injured in sealed parcel to the police.” Ram Phal was examined on 16.9.1996 at 12 noon. No pellet was recovered from the body but as per complainant fire shot from the pistol which had grazed pas Criminal Appeal No. 142-SB of 1998. 10 the right shoulder of the complainant. No question of recovery of pellet from the body. Doctor no where stated that injury noted on the person of Ram Phal could be self suffered and self inflicted. Doctor rather opined that injury was caused by fire arm but was simple in nature. If we presume that medical evidence is contrary to the ocular evidence, then preference is given to the statement of eye witnesses, expert opinion is not to negative the statement of injured eye witness and second eye witness. Learned counsel for the appellant-accused cited no authority in defence that if there is delay of 3-1/2 hours and some discrepancy in medical evidence and ocular evidence, then on this ground story is to be ignored. Trial Court rightly discussed all the points submitted by the learned defence counsel. No other contention was put forward. Occurrence had taken place on 15.9.1996. Appellant-accused was convicted and sentenced vide judgment/order dated 7.2.1998. Appellant-accused was about 18 years old. Date of birth of the appellant-accused is 1.6.1977. Co-accused was acquitted by the trial Court. Only single fire with revolver. Shot was not repeated. Appellant- accused remained in custody for about one year and three months. So, instead of directing the appellant-accused to undergo imprisonment as ordered by the trial Court, appellant-accused is directed to undergo imprisonment already undergone. Criminal Appeal No. 142-SB of 1998. 11 In view of the above said modification on the point of sentence, the appeal is without merit, is dismissed. ( JORA SINGH ) Anoop JUDGE