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2013 DIGILAW 247 (HP)

STATE OF H. P. v. Hem Raj Walia

2013-04-05

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGMENT SURINDER SINGH, J. - 1. THE challenge in this appeal is to the acquittal of the respondent for the offence punishable under Section 307 of the Indian Penal Code. 2. HEARD and gone through the record. Precisely, the allegations of the prosecution are that complainant Sanjay Kumar was working in a wine shop as salesman. On 16.02.2004 at about 9.30 p.m while going to 'dhaba', when he reached near Purba Chowk, Titu son of the accused started talking to him. The accused along with his another son was sitting in the jeep. In the meanwhile, the accused put a blanket on him. He was dragged inside the vehicle and took him in the vehicle towards Palampur. The scooter of injured Sanjay Kumar was also taken in the jeep towards Palampur. Finally, injured Sanjay Kumar was dropped at Daru Nallah, where the accused with a view to kill him, fired a gun shot, which hit him on the left of his chest. He fell unconscious. Thereafter, he went to his in-laws house, where his wife Promila (PW-19) was present. The injured was taken to hospital. The police was also informed on receipt of rukka Ext. PW6/B from the hospital, Head Constable Ram Chand visited the hospital to record the statement of the injured. Finding fit to make statement, he recorded statement of the injured Ext. PW10/B under Section 154 of the Code of Criminal Procedure, on the basis of which FIR Ext. PW10/A was formally registered. 3. PW-6 Dr. Vinay Mahajan, had medically examined the injured and noticed: 1. One lacerated wound 12cm X 8cm in size. Irregular margins, fresh bleeding on touch. It was dark red in colour. Sub cutaneous tissue and fat were visible with over hanging skin tag 5X4 CM in size. With the hole 1X1 CM in size over the skin tag. Tin pieces on Indian currency note embedded on the wound, on the left side of chest in the infra mammary region extending up to left anterior axillary line. X Ray was also advised by me. Thereafter, he also examined the clothes worn by the injured and noticed that the injured was wearing blue sweater with light grey lower tag with a tag of 'Aman' on the left side. There were two holes (tear) on the left side of the sweater in front of the left side of chest. X Ray was also advised by me. Thereafter, he also examined the clothes worn by the injured and noticed that the injured was wearing blue sweater with light grey lower tag with a tag of 'Aman' on the left side. There were two holes (tear) on the left side of the sweater in front of the left side of chest. Hole No. 1 was 1X1 inch in size with ragged margins soiled with blood. Tear No. 2 triangular in shape 15 CM apart from tear No. 1. Tear No. 2 was lateral to tear No. 1. Tear No. 2 was also soiled with blood. The corresponding injuries were also found on the shirt and banyan worn by the accused. In the opinion of the doctor, it was a gun shot injury. He issued a Medico Legal Certificate Ext. PW6/A. 3. THE accused was arrested and his gun was taken into possession having fired pallets in the chamber, which was sent for chemical examination along with two live cartridges. As per ballistic report Ext. P-A, the gun in question was in working order. The empty cartridges opined to have been fired from the said gun and two other cartridges were opined to have been re-loaded in the said gun. 4. AFTER completing the investigation, challan was presented against the accused for his trial. He was accordingly charged for attempted murder, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined 19 witnesses, besides, examining PW-17 Sanjay Kumar, PW-8 Lata, PW-19 Promila, the wife of the accused and PW-6 Dr. Vinay Mahajan. 5. PWS Lata and Promila turned hostile, as they did not support the prosecution case. PW-6 Dr. Vinay Mahajan opined that there was only one injury on the person of injured having gutter formation on the skin tag which was not having blackening, tattooing etc., having been caused by a bullet and not by a cartridge. Further, the learned trial Court taking note of the material deviation of the injured from his earlier statement under Section 154 of the Code of Criminal Procedure, in his statement when examined in the Court, acquitted the accused. 6. WE have re-assessed and re-examined the evidence on record. The very important document in the instant case is the Medico Legal Certificate of the injured. 6. WE have re-assessed and re-examined the evidence on record. The very important document in the instant case is the Medico Legal Certificate of the injured. By the time when the injured was taken to hospital and was examined, the police had not come to the picture at all. It was only after the examination of the injured was conducted, the doctor aforesaid had sent the rukka Ext. PW6/B to the police informing about the incident. The doctor recorded the history in the Medico Legal Certificate that he was fired by someone at about 9.00 p.m on 16.02.2004. He did not give the name of the accused. Even name of the accused has not been mentioned in the rukka Ext. PW6/B. 7. THE statement Ext. PW-10/B, which injured gave to the police, on their arrival requires consideration. According to this statement, it is stated that on the aforesaid date at about 9.00 p.m when he was at liquor vend, a servant of dhaba owner brought meals to him. He finding the dal less went to that dhaba but found that the dhaba was closed. Thereafter, he returned to the liquor vend which was also found locked. While advancing towards the liquor vend, when he reached near the chowk, he saw the accused and his son Titu. They were having conversion with each other. In the mean time, accused came out from the jeep parked nearby carrying a blanket in his hand and threw it upon him. Thereafter, he was pushed inside the vehicle. The elder son of the accused was already sitting in the said jeep and they drove it towards Palampur. It was further alleged that some more persons were also with him. They also took their scooter in the same vehicle and the accused and his other accomplices took him to Mansimbal-Satreher road and was stopped near the house of one Saini near Daru Nallah. Thereafter, accused asked him to go to his in-laws. In the meantime, accused with intent to kill him fired a gun shot at him with his gun. The injured jumped from the place as he had sustained gun injury on his chest and fell unconscious. By the time, he gained conscious he found that a tarpaulin was laid upon him and in and around, there was nobody. In the meantime, accused with intent to kill him fired a gun shot at him with his gun. The injured jumped from the place as he had sustained gun injury on his chest and fell unconscious. By the time, he gained conscious he found that a tarpaulin was laid upon him and in and around, there was nobody. Then he went to Mansimbal and met his wife Promila (PW-19) and narrated about the incident to her. It was thereafter he was taken to hospital at Palampur in a vehicle. But when he was examined in the Court as PW-17, he materially deviated from his earlier version and gave another story of the incident. According to him, it was 17th February, 2004 when he was proceeding to the house of his in-laws from Purba on scooter. When he reached at Mansimbal, he found a vehicle like trax parked in the middle of the road. Since there was no place to cross the road from any side, he stopped his scooter and blew horn, then three persons came out from the vehicle. Two of them stood on the one side and one of them was accused Hem Raj. He asked him whether he was going to Mansimbal. On giving his reply in positive, firstly, the accused proceeded towards the vehicle, picked up the gun and thereafter placed the gun on his chest and fired on him. As a result of which he sustained injury on his chest. Thereafter, he fell down. He was covered in a plastic tarpaulin placed upon him. Both sons of the accused took his scooter to some distance and threw it there and accused took the jeep towards Thakurdwara. After sometime the injured got up and accused came to the spot in his vehicle. He hid himself behind the bushes towards the fields. The accused picked up tarpaulin, finding the injured not there, looked in and around for him, when he did not locate him, he left in his vehicle from the spot. It was thereafter he went to his in-laws house and called his wife and revealed about the incident to her. He has further stated that earlier when his marriage was solemnized, the accused used to stay at the house of his in-laws, to which he objected. On account of this, he was inimical towards him and two-three times he was got beaten by 2-3 boys. He has further stated that earlier when his marriage was solemnized, the accused used to stay at the house of his in-laws, to which he objected. On account of this, he was inimical towards him and two-three times he was got beaten by 2-3 boys. 8. IN cross-examination he was confronted with his earlier statement Ext. PW-10/B recorded under Section 154 of the Code of Criminal Procedure. He could not explain the material contradictions, which were pointed out in the said statement. He simply stated that this statement was already recorded by the police and his signatures were obtained. It was not read over and explained to him, rather the police informed that they would read the entire statement later on. This explanation was not found plausible by the learned trial court and we also find the material contradictions in his earlier statement Ext. PW10/B and thereafter he has deposed in the Court during the trial. He has gone far away from the pivotal of the main story to which he projected initially, making the prosecution story dubious. Further the injured did not name the accused when he was being medically treated by the doctor. In his cross-examination, though he denied that some fight took place with some unknown persons at village Bhatlu, but this fact has been admitted by his wife Promila (PW-19) in clear and unambiguous words that accused had told her about some fight at Bhatlu with some one. She did not make even a single whisper that her husband Sanjay (PW-17) received the injury in question because of the gun shot fired at him by the accused. Even Lata (PW-8) did not lend any strength on this aspect to the prosecution case. 9. FURTHER, the case has been totally demolished by Dr. Vinay Mahajan (PW-6) by saying that injury in question could only be caused by a bullet and not by a cartridge. The allegations of the injured were that the gun was put on his chest and it was fired through by the accused. Had it been so, the injury in question should have blackening, tattooing etc. but no such thing was noticed by the doctor aforesaid. Rather he stated as aforesaid that there was gutter formation on the skin tag, which could only be caused by a bullet and not by a cartridge. The injury in question was not through and through. Had it been so, the injury in question should have blackening, tattooing etc. but no such thing was noticed by the doctor aforesaid. Rather he stated as aforesaid that there was gutter formation on the skin tag, which could only be caused by a bullet and not by a cartridge. The injury in question was not through and through. In that situation, if the gun (12bores) shot was fired through by placing the same on the chest, the bullets and rounds should have been loaded in the body of the injured. But no such bullets or rounds were found extracted on the person of the injured. No X-ray examination, which is alleged to have been conducted, was placed and proved on record. 10. THEREFORE, on critical examination of the entire evidence discussed above, we do not find that prosecution has been able to prove the case against the accused beyond a reasonable doubt. As such, there are no grounds to convert the acquittal of the accused into conviction. The appeal sans merits and is dismissed. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceeding of this case. Send down the records. Appeal is dismissed.