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2009 DIGILAW 105 (DEL)

Somesh Pal v. State

2009-01-27

SUNIL GAUR

body2009
SUNIL GAUR, J. 1. Appellant is aggrieved of the impugned judgment of 5th November 1998, vide which he has been held guilty for the offence of attempting to murder Jaiveer Singh and for causing simple injury to Megh Raj and for using country made pistol in committing the aforesaid offences. Trial court vide impugned order of 7th November 1998, has sentenced the Appellant for the offence under Section 307 of Indian Penal Code to undergo rigorous imprisonment for five years with fine of Rs.2,000/- and in default thereof, to undergo rigorous imprisonment for six months. He has been further sentenced to undergo rigorous imprisonment for six months for the offence under Section 323 of Indian Penal Code. Rigorous imprisonment of three years with fine of Rs.5,000/- has been awarded to the Appellant/accused for the offence under Section 27 of Arms Act, 1959 and in default of payment of fine, he has been directed to undergo rigorous imprisonment for six months. Aforesaid sentences have been ordered by the trial court to run concurrently and they are under challenged in this appeal by the Appellant. 2. In brief, the background facts appearing on record are as follows:- On 10th June, 1996, at about 8.30 PM Appellant/accused came to the house of Jaiveer Singh and threatened that he would shoot him by tomorrow evening. Again, on that day, at about 11.15 PM, Appellant/accused knocked the door of the house of Jaiveer Singh, who opened it and came out and Appellant/accused caught hold of him by left arm and asked him as to why he had reported against him to the police and at that time, Appellant/accused was armed with a country made pistol and he declared that he would now shoot him. Thereafter, Appellant/accused fired from his country made pistol at Jaiveer Singh, who ducked and on hearing the noise of fire, Megh Raj son of Jaiveer Singh came at the spot and tried to catch hold of the Appellant/accused, who resisted by giving a blow with the butt of the pistol on the head of Megh Raj and in the meanwhile, people of the mohalla gathered at the spot and the Appellant/accused was apprehended and was given beatings by the public persons, who had gathered there. This incident was reported to the police. Investigation commenced. Megh Raj was got medically examined. This incident was reported to the police. Investigation commenced. Megh Raj was got medically examined. Since Appellant/accused had also sustained injuries in the beatings by public persons, he was also got medically examined by the police. After completion of investigation, charge sheet was filed against the Appellant/accused for the offences under Section 307/323 of Indian Penal Code and under Section 27 of Arms Act, 1959. 3. Before the trial court, Appellant/accused did not plead guilty to the charges framed against him for the aforesaid offences and thus, he was put to trial. The evidence led against the Appellant/accused, mainly consisted of the testimony of first informant (PW-3) and of his son Megh Raj (PW-2), Dr. T.R. Ramtek (PW-7), who had deposed regarding the MLCs of injured Megh Raj and the Appellant/accused. Asstt. Sub Inspector Raj Kumar, (PW-8) is the Investigating Officer of this case. 4. Appellant/accused in his statement before the trial court had denied the prosecution case and had taken the following stand:- It is a false case. PWs have deposed falsely. Jaibir and Megh Raj are my neighbourers. They are having some grudge against me. On the day of incident, Jaibir and his sons Megh Raj, Dinesh, Raju and other relatives had some altercation with me on the question of drain flowing in front of their house. They all had given me beatings and took me to the Police Post Jyoti Nagar where again I was beaten by Megh Raj and police officials due to which I received grievous injuries and I was sent for medical examination. After that I came to know that some katta and the bullets had been planted on me and I had been falsely implicated in this false case. I had nothing to do with the said incident. No incident, as alleged by the prosecution, took place. 5. However, Appellant/accused had not led any evidence in his defence before the trial court. After the trial, Appellant/accused stood convicted and sentenced as noted above. 6. Both the sides have been heard and with their assistance, the evidence on record has been scrutinised. 7. The challenge to the prosecution case by the Appellant/accused is on the ground that the prosecution case is inconsistent and unreliable. After the trial, Appellant/accused stood convicted and sentenced as noted above. 6. Both the sides have been heard and with their assistance, the evidence on record has been scrutinised. 7. The challenge to the prosecution case by the Appellant/accused is on the ground that the prosecution case is inconsistent and unreliable. It is pointed out that although it is the prosecution case that this incident took place outside the house of the complainant/first informant but the bullet had struck at the door of the house of Mahender, which falsifies the prosecution case. It is argued that the Appellant/accused had sustained serious injuries including head injury and the prosecution version of his being beaten by public person is false as the names of the public persons are not forthcoming and the story of Appellant/accused carrying a country made pistol/Katta is false as nothing was recovered in the personal search of the Appellant/accused. It is pointed out that in the seizure memo, there is no reference to the empty cartridge and the finger prints were not lifted from the fire arm and the seal after use returned to the police on the next day whereas the recovered fire arm was sent to CFSL after quite some time and the CFSL report is inadmissible as it has not been duly proved on record. Lastly, it is submitted that on the day of incident, Jaiveer and his son and relatives had some altercation with him pertaining to the drain flowing in front of their house and had given beating to the Appellant/accused and the katta was planted upon him and there is no acceptable explanation for the grievous injuries sustained by the Appellant/accused in the incident, as aforesaid. Thus, the conviction of the Appellant is said to be bad in law and acquittal is prayed for in this appeal. 8. On the quantum of sentence, it is urged that Appellant/accused has already remained behind bars for about two years and the Appellant/accused was aged just 24 years at the time of this incident and has got family to support and in view of the fact that Appellant/accused had also sustained injuries in this incident, his sentence needs to be reduced to the period already undergone by him. Reliance has been placed upon a decision of the Apex Court reported in (2007) 1 SCC (Cri.) 25, to contend that custodial sentence of two years in a case of attempted murder by fire arm was held to be adequate. Nothing else is urged on behalf of the Appellant/accused. 9. Mr. Amit Sharma, learned Additional Public Prosecutor for the State rebuts the aforesaid contentions of the defence and submits that the conviction of the Appellant/accused is based on the evidence on record and the sentence imposed is adequate one and there is no merit in this appeal. 10. After having gone through the evidence on record, I find that it has come in the evidence of first informant (PW-3) that when the Appellant/accused had fired, his face was towards the house of Mahender and therefore, it is natural that the fired bullet had hit the door of the house of Mahender. There is no ambiguity or inconsistency about it in the prosecution case. There was no need of getting Mahender examined in evidence because it is nobodys case that Mahender had witnessed this incident. 11. It emerges from evidence on record that the public persons who had gathered at the spot and had apprehended the Appellant/accused and had given beating to him and they were not only the neighbours of the first informant but were also the neighbours of the Appellant/accused and therefore, nothing turns on non- disclosure of their names. The so called infirmities pointed out by the defence in the prosecution case, pales into insignificance, in view of the fact that even the Appellant/accused does not dispute his presence at the spot and about happening of this incident, in which, he was also injured. Apprehension of the Appellant/accused from the spot, supports the prosecution case and recovery of the country made pistol with live cartridge sufficiently incriminates him. The plea of the Appellant/accused of planting of the country made pistol upon him lacks credibility as it is not shown as to why the local police would falsely plant a country made pistol with live cartridge upon the Appellant/accused. 12. Although, the motive aspect has not been clearly brought out in the evidence, but in the face of the direct evidence of the injured (PW-2) and his father (PW-3), no undue importance can be attached to the lack of motive for this incident. 12. Although, the motive aspect has not been clearly brought out in the evidence, but in the face of the direct evidence of the injured (PW-2) and his father (PW-3), no undue importance can be attached to the lack of motive for this incident. In fact, it has come in the evidence of the first informant Jaiveer (PW-3) that the Appellant/accused had told him that he had made a complaint to the police and Jaiveer had replied that he had not yet made complaint to the police, but he would make a complaint to the police. This was sufficient provocation for the Appellant/accused to have fired at Jaiveer (PW- 3), who had saved himself by ducking down. 13. Now, it is to be seen as to whether the prosecution version is reliable or the counter version put forth by the Appellant/accused in his statement under Section 313 of Cr. P.C. is plausible. When the plea of the Appellant/accused is tested on the touchstone of the probability factor, it does not sound to be plausible as it is not stated by the Appellant/accused as to what was the dispute about the drain and as to why the first informant or his son would be the aggressors. 14. The important thing to be borne in mind in determining the question whether an offence under Section 307 Indian Penal Code is made out, is the intention and not the injury. Even if, injury is not caused, still offence under Section 307 of the Indian Penal Code is made out, if the intention is there to kill. Present case illustrates this very well. Although, Appellant/accused was under the influence of liquor as per his MLC, but being intoxicated is no defence and on this account, Appellant/accused cannot claim any benefit. Facts and circumstances of this case, as evidenced by the first informant and his son, clearly proves that the Appellant/accused had the intention to kill Jaiveer, who was lucky to dodge the bullet fired by the Appellant/accused from his country made pistol. 15. In my considered view, trial court has rightly relied upon the prosecution version and has rejected the plea of the Appellant/accused as being improbable. Therefore, the conviction of the Appellant/accused is found to be well merited and is hereby upheld. 16. 15. In my considered view, trial court has rightly relied upon the prosecution version and has rejected the plea of the Appellant/accused as being improbable. Therefore, the conviction of the Appellant/accused is found to be well merited and is hereby upheld. 16. After having gone through the case of Bipin Bihari vs. State of M.P. (2007) 1 SCC (Cri.) 25, I do find that in a fire armed injury case, conviction for the offence under Section 307 of Indian Penal Code was maintained by the Apex Court and the custodial sentence of two years was not found to be harsh one. 17. In the light of the facts and circumstances of this case, there is some scope for reduction in the substantive sentence of rigorous imprisonment for five years imposed upon the Appellant/accused, as this court finds that the Appellant/accused is now in his thirties and has family to support and has remained on bail for a decade or so, and has already suffered detention in this case for a period which is little less than two years, i.e., 1 years, 10 months and 21 days and as per his nominal roll, his conduct in jail has been found to be satisfactory and the fact that Appellant/accused has already faced the agony of trial and the appeal proceedings in this case since June, 1996, and therefore, to my mind, it is a fit case for reducing the substantive sentences of the Appellant/accused to the period already undergone by him. However, the fine imposed upon the Appellant/accused for the offence under Section 307 of IPC is correspondingly enhanced to Rs.10,000/-. It is made clear that in case the Appellant/accused fails to deposit the enhanced fine within two weeks from today, he shall have to undergo SI for a period of six months only. 18. Subject to the deposit of the enhanced fine, bail bond and surety bonds of the Appellant/accused be cancelled. 19. This appeal stands partly allowed to the extent indicated above.