1. The appellant Rajju Pathak @ Raj Kumar has filed the instant criminal appeal against the judgment and order of the conviction and sentence dated 31.7.2006 passed by the Additional Sessions Judge, FTC No.2, Jalaun at Orai, in S.T. No.127 of 2005 State Vs. Rajju Pathak @ Raj Kumar and others, relating to Case Crime No.15 of 2005 under Section 307, 452 IPC, Police Station Rampura, District Jalaun, and also in S.T. No.128 of 2005 relating to Case Crime No.30 of 2005 under Section 25 Arms Act, Police Station Rampura District Jalaun. The appellant has been convicted and sentenced to undergo ten years rigorous imprisonment with fine of Rs.5,000/- under Section 307 IPC, two years rigorous imprisonment with fine of Rs.1000/- under Section 452 IPC and also one year rigorous imprisonment with fine of Rs.1,000/- under Section 25 Arms Act. In default of payment of the aforesaid fine, the appellant has been sentenced to further undergo six months additional simple imprisonment. All the sentences have been directed to run concurrently. The co-accused Gyan Singh has been acquitted of the said charge vide impugned judgment and order giving benefit of doubt.
2. According to the first information report lodged by Kishun Dutt Tiwari, on 13.3.2005 at 5:30 p.m., the facts of the prosecution case are that the first informant Kishun Dutt Tiwari aged about 55 years was sitting inside his house and was talking with Jamuna Saran Srivastava and Chhuna @ Shiv Naresh. Around 4:00 p.m., one accused Gyan Singh also came there, just then the appellant Rajju Pathak @ Raj Kumar aged about 35 years armed with Tamancha (Katta) came in the courtyard of the house of the first informant and discharged fire from his Katta at the first informant Kishun Dutt Tiwari with an intent to kill him. The fire shot hit in the forehead of the injured and co-accused Gyan Singh and one unknown accused also made fire. The trio ran away extending life threat and hurling abuses. The incident took place as a result of old enmity. The first information report of the incident was lodged against the appellant and one Gyan Singh under Sections 307, 452, 504, 506 IPC. The weapon of offence namely Tamancha of 315 bore and two live cartridges were recovered from possession of the appellant by the police. The investigation was made by the Investigating Officer who after completion of the investigation submitted charge sheet under the aforesaid sections.
3. The trial Court framed charge under Section 307/34, 452, 504, 506 IPC against the appellant and one Gyan Singh. The appellant was further charged under Section 25 Arms Act.
4. The appellant pleaded not guilty and claimed to be tried on the said charges.
5. The prosecution examined the injured as well as informant Kishun Dutt as PW-1, Smt. Rajendri Devi PW-2 in the eyewitnesses account. The prosecution also examined Dr. L.K. Niranjan as PW-3, Dr. M.C. Verma PW-4, S.I. Ram Dularey PW-5, H.C. Virendra Singh PW-6, S.I. R.B. Shukla (Retd.) PW-7.
6. According to the evidence of the injured Kishun Dutt PW-1 on the day of the incident, the witness was sitting in the courtyard of his house and his wife Rajendri Devi, Jamuna Saran Srivastava and Chhunna were also sitting and talking there. On the day of the incident around 4:00 p.m., co-accused Gyan Singh and one Amit Dubey came there and sat on the cot expressing their desire to purchase Sesame tree of the witness. After about 15 minutes, the appellant Rajju Pathak @ Raj Kumar armed with Tamancha came there and fired one shot from Tamancha at the head of the witness. The fire shot hit in the forehead of the witness. The wife of witness and others who were sitting there tried to catch the appellant, Gyan Singh and Amit Dubey but trio ran away making fire from their Tamanchas. This injured was taken to the police station by motorcycle where the witness gave the written report of the incident which has been proved as Exhibit Ka-1 by the witness. This injured witness was taken to the District Hospital, Orai where his medical examination was conducted and injury report Exhibit Ka-2 was prepared.
7. The Investigating Officer took blood stained Baniyan of the injured and prepared memo as Exhibit Ka-3. The injured was referred to Regency Hospital, Kanpur where he underwent operation and pellet from injury was taken out. According to the testimony of this PW-1, the appellant Rajju Pathak @ Raj Kumar fired at the witness with an intent to kill him due to old enmity and pending litigation.
8. It is evident from cross examination of this injured PW-1 that he was prosecuted in the murder case of Smt. Kaushal Kishore (Bhabhi of the witness) and 10-15 cases were pending against this witness at the time of the incident. The witness has clearly admitted at page no.16 of his evidence recorded before the trial Court that there were two groups in the village, one group was of the witness and another group was of the appellant. The witness has identified Tamancha used in the said offence as Exhibit-1 saying that one fire shot made by the appellant from it hit in the head of the witness and while leaving the place, the appellant fired two or three shots.
9. Smt Rajendri Devi PW-2 is wife of PW-1. She has narrated and repeated the same facts as stated in the evidence of PW-1 and also first information report of the incident. According to her, it was the appellant who fired shot from Tamancha at her husband, which hit in the head portion of her husband. She has also admitted old enmity of the appellant with her husband saying that she could not tell the distance from which the fire was made at her husband.
10. Dr. L.K. Niranjan, PW-3 has proved injury report of the injured saying that he examined the injured Kishun Dutt on 13.3.2005 and following injury was found on his person:-
1. Firearm wound of entry size of 2cm x 0.5 cm x bone deep on left side of forehead, 2cm above from left eyebrow, marginal abrasion present and scorching all around the wound was found, blood was oozing and palpable pellet was on right side of forehead. X-ray was advised and injury was kept under observation.
11. According to the evidence of the doctor, the said injury was likely to be caused on 13.3.2005 around 4:00-4:15 p.m. by firearm. Injury was on vital part.
12. Dr. M.C. Verma PW-4 who was radiologist took x-ray of the head of the injured. One cylinderical and one small rounded radio opaque shadow of metallic density was seen in the x-ray and there was fracture of frontal bone. This witness has proved x-ray report as Exhibit Ka-5.
13. S.I. Ram Dularey PW-5 was Investigating Officer of the case who started the investigation and recorded statement of the witnesses and prepared site plan Exhibit Ka-6 and also took one empty cartridge 315 bore from the spot through memo Exhibit Ka-7. According to this witness, he took the appellant on police remand by the order of the Court dated 1.4.2005 and then Tamancha of 315 bore and two live cartridges were got recovered at the pointing out of the appellant from inside the heap of bricks placed in the agriculture plot of Mahendra Dhobi on 2.4.2005 at 11:00 a.m. and recovery memo Exhibit Ka-3 was prepared. This witness also prepared site plan of the place of the recovery of Tamancha as Exhibit Ka-10 and sent the same to the forensic laboratory and after completion of the investigation, submitted charge sheet as Exhibit Ka-9.
14. H.C. Virendra Singh PW-6 has been examined by the prosecution to prove chik FIR as Exhibit-11 and G.D. Entry thereof Exhibit Ka-12 and chik FIR under Section 25 Arms Act as Exhibit Ka-13 and G.D. entry thereof Ka-14.
15. Sri R.B. Shukla, PW-7, S.I. (Retd.) investigated the case under Section 25 Arms Act and after completing the investigation, submitted charge sheet Exhibit-Ka 16 and sanction of the District Magistrate, Exhibit Ka-17 was obtained.
16. The appellant while examining under Section 313 Cr.P.C. denied the whole prosecution story and stated that the first informant/injured Kishun Dutt was engaged in the manufacturing of the illegal Tamanchas and during inspection of the manufactured Tamanchas, the fire shot was accidentally discharged which hit the injured Kishun Dutt causing the said injury. He has been falsely implicated on account of enmity in this case.
17. Awadh Bihari DW-1 was examined in the trial Court. This DW-1 tried to prove that he did not hear any sound of fire shot nor any kind of noise on the day of the incident from house of the injured. This DW-1 is immediate neighbour of the injured Kishun Dutt having adjoining house. This DW-1 has further deposed that hearing some cries, people were going to the house of the injured and this witness also went there at 4:00 p.m. and saw that Kishun Dutt had sustained injury in his head but at that time, the appellant was not present there at the house of the injured. DW-1 has further tried to establish that he had not seen the appellant Rajju Pathak @ Raj Kumar going to or coming out of the house of the injured. When this defence witness supported the candidate of his own caste in the election, since then he was not on visiting terms to the house of the injured as their relations had become sour. Since this defence witness had some enmity with the injured prior to the alleged incident, his evidence does not inspire confidence.
18. Heard Sri Ajat Shatru Pandey, learned counsel for the appellant and learned AGA for the State. I have carefully gone through the evidence available on record.
19. It appears from the report of the Forensic Science Laboratory dated 16.5.2005 which is Exhibit Ka-18 that the weapon of offence namely .315 bore Tamancha with two live cartridges in one sealed bundle and one empty cartridge of .315 bore in another sealed bundle were sent to the Forensic Science Laboratory, which were examined. The used empty cartridge was found to have been fired from the said recovered firearm.
20. In this case, the injured Kishun Dutt PW-1 has supported the prosecution case in his evidence. His evidence has further been supported by the testimony of his wife Smt. Rajendri Devi PW-2. Learned counsel for the appellant has not been able to point out any kind of material discrepancy or contradiction in their evidence. There is no reason to disbelieve their testimony. The testimony of the injured witness and presence of the firearm injury on his forehead coupled with fracture of the head bone are sufficient to establish the presence of the appellant on the spot on the date and time of the occurrence. His evidence as well as evidence of his wife PW-2 is truthful, natural, probable and is fully reliable and trustworthy as credibility of the same has not been shaken in any way.
21. The testimony of the injured has been fully corroborated by medical evidence. No contradiction has been pointed out between medical evidence and ocular evidence by the learned counsel for the appellant. Thus, apart from it, recovery of the aforesaid Tamancha with two live cartridges and one empty cartridge at the pointing out of the appellant without having any valid licence is also proved beyond doubt from the evidence on record.
22. In the case of Anil Rai Vs. State of Bihar (2001) 7 SCC page 318 (SC), it has been observed that testimony of any inimical witness cannot be discarded merely on the ground of enmity if it is otherwise convincing and consistent and enmity is proved to be the motive of the crime. However, possibility of falsely involving some person in the crime or exaggerating the role of some of the accused by such witness should be kept in mind and ascertained on the facts of each case.
23. In the case of Kamaljit Vs. State of Punjab AIR 2004 SC page 69, it has been observed that minor variations between medical evidence and ocular evidence do not take away primacy of the later.
24. In the case of Rama Kant Rai Vs. Madan Rai and others AIR 2004 SC page 77, it has been observed that evidence of eyewitnesses is to be tested for its inherent consistency and inherent probability of the prosecution story. If eyewitness account is even credible and trustworthy, medical evidence pointing to alternative possibility is not to be accepted as conclusive.
25. The main contention of the learned counsel for the appellant is that single shot was fired by the appellant which hit in the forehead of the injured and some pellets of the fire shot were under skin of the forehead and only one head bone was fractured. Hence, there was no intention of the appellant to cause death and the said injury was not sufficient in the ordinary course of nature to cause death of the injured.
26. In the case of State of Maharastra Vs. Balram Bama Patil and others 1983 Cr.L.J. (SC) page 331, it has been observed that it is not necessary that the injury actually caused to the victim of assault should be sufficient under ordinary circumstances to cause death of the person assaulted. Section 307 IPC makes a distinction between an act of accused and its result, if any. What the Court has to see is whether the act irrespective of its result was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC. It is sufficient in law if there is present an intent coupled with some over act in execution thereof.
27. Some contentions of the learned counsel for the appellant are that no supplementary report in the light of x-ray report was prepared and was made available on record. That in this case, there was admittedly old enmity, two independent eyewitnesses Shiv Nath and Jamuna Saran Srivastava were not examined. That the incident took place in the open space. That the place of standing of the injured and also of the appellant were not shown in the site plan.
28. I have considered these submissions and compared them with the evidence on record.
29. As per x-ray report, there was fracture of frontal bone of the head of the injured and injury was griveous in nature. Hence, absence of the supplementary report is not sufficient to give any benefit to the appellant. The prosecution case has been completely and fully established from the evidence of PW-1 and his wife PW-2 and then supported by medical evidence. Hence non-examination of the so-called independent witnesses is of no help to the appellant in the facts and circumstances of the case. There is no material omission in the site plan and all relevant points have been shown therein by the Investigating Officer. If there is any such minor discrepancy or omission, the benefit of the same can not be given to the appellant.
30. As per statement of the appellant recorded under Section 313 Cr.P.C., the injured sustained firearm injury on his person due to accidental discharge of fire shot from any one of Tamanchas allegedly manufactured by the injured himself. Thus, there remains no doubt that firearm injury found on the forehead of the injured was caused by Katta/Tamancha which was recovered at the pointing out of the appellant by the police and the said fire was found to have been made from Tamancha of the appellant by the Forensic Science Laboratory leaving no room of doubt on the veracity or genuineness of the prosecution case. Thus, the impugned judgment and order recording conviction and sentence of the appellant under Section 307, 452 IPC and 25 Arms Act, is upheld.
31. Learned counsel for the appellant has submitted that the appellant is in jail since 29.3.2005 and he is aged about 35 years and considering the facts and circumstances of the case and the fact that one shot was fired by the appellant which hit on the forehead of the injured, some leniency in sentence should be adopted.
32. Learned AGA opposing this submission, has taken me through the last two pages of the impugned judgment. It appears from page no.28 of the impugned judgment that the appellant Rajju Pathak @ Raj Kumar has criminal history and he has been convicted in some murder case in S.T. No.90 of 2003 State Vs. Pawan Upadhyay and others by the Special Judge (E.C. Act) and sentenced to imprisonment for life. This fact has not been disputed by the learned counsel for the appellant.
33. The incident took place in the year 2005. The appellant fired one shot from his Tamancha at the injured without repeating the same and only one firearm injury in the forehead was caused. The appellant is in jail since 29.3.2005 namely for more than seven years in this case. The sentence awarded to the appellant should in the interest of justice as per the learned counsel for the appellant be modified and the same should be reduced to the period undergone by the appellant.
34. In the result, while upholding the conviction recorded by the trial Court vide judgment and order dated 31.7.2006, this Court reduces the sentence awarded to the appellant to the period of imprisonment already undergone by him. The appeal is to that extent allowed and order modified. The bail bonds of the appellant are discharged. The appellant shall be set at liberty if he is not wanted in any other case.
Dt. 6.4.2012 rkg