Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 84 (HP)

GAFOOR KHAN v. STATE OF H. P.

2003-04-22

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This appeal arises out of the judgment of conviction recorded by the learned Additional Sessions Judge, Sirmaur District at Nahan, dated 14-16th January, 1999. 2. It appears, appellant Gafoor Khan, hereinafter referred to as the "accused", was tried for offences punishable under Section 307 of the Indian Penal Code and 27 of the Indian Arms Act. 3. Briefly stated prosecution case was: Accused is resident of village Meerpur Kotla. Complainant Shamsher Singh is resident of Chechi Majra of Tehsil and District Nahan. Hari Ram of village Meerpur Kotla engaged Shamsher Singh, complainant (PW-3) for ploughing his fields with his tractor. Shamsher Singh on 18th April, 1997 at about 6.00 a.m., went to the fields of Hari Ram alongwith his tractor No. HNA-9243 for the purposes of ploughing fields. After about 15 minutes, accused appeared with a gun in his hand and a cartridge belt around his waist. Accused loaded his gun, entered the field and asked the complainant to stop ploughing the field. When complainant asked him as to why he was being stopped. Accused told him that he would fire on his chest and if he manage to escape from first shot then he would fire other. Accused fired the bullet. Complainant jumped from the tractor. Accused loaded another cartridge. In the meanwhile, complainant fled away for safety towards village Arand Wala and therefore, accused did not fire the second bullet. It was also the case of the complainant that he lateron came to know that the accused tried to put his tractor on fire. 4. On the appreciation of the evidence learned trial Judge concluded that accused had fired the gun shot at the complainant who, however, providentially escaped. Accused was accordingly convicted for an offence punishable under Section 307 of the Indian Penal Code. So far the offence punishable under Section 27 of the Indian Arms Act was concerned, learned trial Judge held that no evidence was led by the prosecution on this aspect of the case and acquitted the accused. 5. Aggrieved, the accused is in this appeal. 6. I have heard Mr. Kuldip Singh, learned Senior Counsel for the appellant and Mr. Ashok Chaudhary learned Additional Advocate General for the respondent-State. I was also taken through the record by the learned Counsel. 7. 5. Aggrieved, the accused is in this appeal. 6. I have heard Mr. Kuldip Singh, learned Senior Counsel for the appellant and Mr. Ashok Chaudhary learned Additional Advocate General for the respondent-State. I was also taken through the record by the learned Counsel. 7. Section 307 of the Indian Penal Code provides for the punishment for attempt to murder which may extend to imprisonment for ten years of either description and fine. Section 307 reads : "307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] Illustrations (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section. (b) A, with intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of [the first paragraph of] this section. (d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in As keeping; A has not yet committed the offence defined in this section. A places the food on Zs table or delivers it to Zs servant to place it on Zs table. A has committed the offence defined in this section". 8. A places the food on Zs table or delivers it to Zs servant to place it on Zs table. A has committed the offence defined in this section". 8. A bare perusal of the provision shows that in order to attract Section 307 of the Indian Penal Code it is necessary for the prosecution to establish that bad the victim met with death the offence would have been one under Section 302 of the Indian Penal Code. Illustration-(c) to Section 307 makes it clear that the prosecution must prove : (a) accused fired the gun at the complainant. (b) he did so with intention of murdering the complainant. 9. In case any of the ingredient is missing, an offence under Section 307 of the Indian Penal Code would not be made out. 10. In the present case what the complainant, appearing as PW-3, states that accused appeared on the fields, asked him to stop and fired a gun shot. In his own words "when accused first fired, I jumped out from my tractor". He does not say that the accused aimed the shot at him. If shot was aimed at the complainant, atleast some pellets should have hit the tractor. Admittedly, no pellet was found by the Investigating Agency from the fields nor is it the case of the prosecution that any pellet hit the tractor. If a person fires in the air or not aiming at a particular person, then admittedly firing of a gun would not attract the provision of Section 307 of the Indian Penal Code. In fact, complainant candidly admitted in his cross-examination "fire did not hit my tractor". This apart, if the gun shot was really aimed at the complainant, he would have raised alarm and called for help like any ordinary human being. He would have us believe that he ran towards village Arand Wala which is about three kilometres from the spot instead of going to nearby houses or to the house of the complainant. 11. According to Phool Singh (PW-2), an eye witness, on the date of incident at about 6.00 a.m. he was on his way to village Toka for his work. When he reached near school building, he heard sound of gun shot fired from the river side where the fields of Hari Ram were located. He also saw a tractor parked in the field. When he reached near school building, he heard sound of gun shot fired from the river side where the fields of Hari Ram were located. He also saw a tractor parked in the field. However, he did not see Shamsher Singh, though he did see accused coming from the fields. It is his evidence that accused was not carrying anything in his hand. The witness was cross-examined by the learned Public Prosecutor, but without any tangible result. 12. Hari Ram (PW-1), who had engaged Shamsher Singh to plough his fields, states that at about 6.15 a.m. he was on his way to his fields where Shamsher Singh was ploughing fields with his tractor and when he heard sound of gun fire. On reaching his fields he found Shamsher Singh missing. However, he saw Gafoor Khan, accused, with a gun in his hand. He inquired about Shamsher Singh from Gafoor, who expressed his ignorance as to where Shamsher Singh had gone. It is his evidence that he did not ask the accused as to why he fired his gun.- 13. Thus, the only evidence against the accused is the statement of complainant Shamsher Singh which is not sufficient to convict the accused, particularly when he does not say that the gun when fired was aimed at him. 14. This apart, learned Senior Counsel for the accused draws my attention to the fact that gun of the accused was taken into possession by the Investigating Agency from the house of the accused alongwith four live cartridges on 18th April, 1997 vide Memo Ex. PD and accused produced an empty cartridges shell before the police on 20th April, 1997 vide Memo Ex. PE. Both the empty cartridge and the gun were sent to the Director, Central Forensic Science Laboratory, Chandigarh on 1st May, 1997. The report of the Forensic Science Laboratory shows that the gun in question was single barrel breech loading gun and was in working order. The barrel swab was examined for fire-arm discharge and was found with positive result. In the opinion of the Senior Scientific Officer (Ballistics), the gun had been fired through. The empty cartridges were compared for characteristic firing pin and breech face impression marks under comparison microscope with positive result. The barrel swab was examined for fire-arm discharge and was found with positive result. In the opinion of the Senior Scientific Officer (Ballistics), the gun had been fired through. The empty cartridges were compared for characteristic firing pin and breech face impression marks under comparison microscope with positive result. It was the opinion of the Senior Scientific Officer that the empty cartridges were fired through the gun which was sent to the Central Forensic Laboratory by the Investigating Agency and recovered from the house of the accused. 15. The argument of the learned Senior Counsel is that the report does not disclose as to when was the gun fired last. It could have been fired, submits learned Senior Counsel, even after the recovery of the gun from the house of the accused and before he was arrested and therefore, the opinion of the Senior Scientific Officer of Forensic Science Laboratory does not show that the gin was fired on the date any time of incident. So far the empty cartridge is concerned, learned Senior Counsel submits that according to the Investigating Agency, accused was arrested on 20th April, 1997, his search was taken and according to the Memorandum of Search prepared by the Police, nothing was recovered from him. Had accused carried any empty with him, it would have been recovered by the police on the personal search of the accused. Accused in any event would not have carried empty with him. In the circumstances, the possibility of cartridges having been fired by the Investigating Agency at a later date cannot entirely be ruled out. 16. Learned Senior Counsel also draws my attention to the fact that Senior Scientific Officer, who carried the test, in column No. 2 of his report Ex. PO, has marked the 12 bore fired empty cartridge as Ex. C/5, whereas in the report it is recorded that the crime cartridge examined was Ex. C and not C/5, therefore, submits learned Senior Counsel, the possibility of some other cartridges having been examined by the Senior Scientific Officer of the Forensic Science Laboratory cannot be ruled out. 17. To conclude, in the present case, the prosecution has not been able to prove any intention on the part of the accused to kill the complainant or to cause such bodily injury as would cause death in the ordinary course of nature. 17. To conclude, in the present case, the prosecution has not been able to prove any intention on the part of the accused to kill the complainant or to cause such bodily injury as would cause death in the ordinary course of nature. The report of the Forensic Science Laboratory also does not link the accused with the commission of offence under Section 307 of the Indian Penal Code. 18. No other point is urged before me. 19. In the result, the appeal is allowed. The impugned judgment of conviction of the accused passed by the learned trial Judge is set aside. The accused is acquitted. His bail bonds are discharged. Gun Ex PI alongwith live cartridges taken into possession from the premises of the accused shall be returned to the accused if he possesses valid licence. Appeal allowed.