HARJI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal filed by Harji and Rooparam against the judgment of the Additional Sessions Judge, Sri Ganganagar, dated 15th May 1976, by which Harji was convicted under sec. 307, I. P. C. and secs. 25 (l) (a) and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 500/-, in default of payment of fine to further suffer rigorous imprisonment for three months on the first count and on each of the second and the third counts to undergo rigorous imprisonment for two years and to pay a fine of Rs. 100/-, in default of payment of fine to further suffer rigorous imprisonment for one month. By this very judgment, Roopa Ram was convicted under sec. 307, I. P. C. read with sec. 109, I. P. C. and sec. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 300/-, in default of payment of fine to further suffer rigorous imprisonment for two months on the first count and on the second to undergo imprisonment for two years and to pay a fine of Rs 100/-, and in default of payment of fine to further suffer rigorous imprisonment for one month. All the substantive sentences of imprisonment awarded to both the appellants were ordered to run concurrently. The rest of the accused, namely, Raja Ram, Balwant, Harji and Taru were acquitted of all the charges framed against them.

(2.) THE prosecution case against the appellants was as follows: - THEre was bad blood between Dula Ram and Roopa Ram appellant prior to the 5th day of November, 1974 and criminal cases were instituted against both of them and their relatives at the instance of each other It was alleged that Roopa Ram and his companions had beaten the younger brother of Dula Ram about three or four months prior to the occurrence. Criminal proceedings were initiated against Dula Ram and others also for beating some persons of the party of Roopa Ram appellant. In that case Dula Ram was admitted to bail while the bail application of Dula Ram's brother Rajs Ram and others was pending for determination in the court of the Sessions Judge, Sri Ganganagar THE bail application was fixed by the learned Sessions Judge for arguments on 5th November, 1974 and so Dula Ram, Perma Nand and Gangajal had come to the court of the Session on that day to hear arguments. At about 1230 pm. the same day, i. e. on 5th November, 1974, Dula Ram was talking to Ram Swaroop, Advocate, within the court precincts near the western gate of the boundary, wall of the Sessions Court. At that time Raj a Ram accused (who has been acquitted by the trial Judge) uttered the following words in a loud tone: "mar DUSHMAN KHARA HE". THEreupon, Roopa Ram appellant started his jeep No. 5598 PNT and Harji appellant fired a shot from his gun at Dula Ram which hit the latter on the elbow of his right hand. After firing the shot, Harji boarded the jeep and Roopa Ram appellant drove it away. As a result of the shot, Dula Ram sustained bleeding injury and ran into the Sessions Court. After the assailant had disappeared from there, Dula Ram was taken to hospital by his relative Surja in a rick haw. In the hospital, he was medically examined by Dr. M. P. Agrawal, who found the following injuries on his person: - (1) four wounds of entry, lacerated, oval to circular in shape, inverted edges and with scorching at edges of the wounds. THE sizes of the wounds were 1/3" x 1/3"; 1/3" x 1/3'; 1/2" x 1/4 and 3/4" x 1/2" all through and through the extremity. THEre were multiple comminuted fractures of the underlying bones. THE injury was situated on the anterior aspect of right elbow, lower end of arm and upper end of the fore-arm; (2) Four wounds of exit, lacerated, irregular, everted edges. THEre was fresh bleeding from the wounds sizes of the wounds were l"x1/2"; 3/4" x1/2"; 1/4"x 1/2" and 1/2" x1/2". THE injury was situated on the dorsal aspect of the right elbow, lower end of arm and upper end of fore arm. Meanwhile, the Station House Officer, Sri Ganganagar, received a message upon telephone that a person had been injured in the precincts of the Sessions Court by firing a shot. Upon receiving the above information, the Station House Officer made an endorsement in the daily diary of the police station and rushed to the spot where he came to know that the injured had been admitted in the hospital. THE Station House Officer then went to the hospital at Sri Ganganagar and recorded the statement of the injured Dula Ram, which is Ex. P 1 on the record. On the basis of this statement, a criminal case under sec 307/34 I. P. C. and sec. 27 of the Arms Act was registered at the police station and the investigation commenced. In the course of investigation, Tek Chand, Station House Officer, inspected the site, prepared a site-plan and a site inspection memo and took the shirt of the injured and one 12 bore was in to his possession. He arrested the appellants. At the time of his arrest, Harji appellant had a double barrel 12 bore gun in his possesion which was seized by the Station House Officer, vide memo of recovery Ex. P. 4. THE licence of this gun was in the name of Roopa Ram and Harji had no licence for keeping it in his possession. On 16th November, 1974, Harji appellant while under police custody gave the Station House Officer an information that he had concealed one 12 bore country-made double barrel gun inside the heap of fire wood on the roof of Roopa Ram's residential house and that he was ready and willing to get it recovered. THE Station House Officer recorded the above information in a memo Ex. P. 12 and, later on, recovered the gun from the above mentioned place at the instance of Harji and in consequence of his above information. Harji had no licence for this gun also. THEreafter, the Station House Officer searched the house of Roopa Ram and recovered five empty and twelve used cartridges vide memo of recovery Ex. P. 14. THEn he obtained requisite sanction to prosecute Harji under sec. 3/25 of the Arms Act from the then District Magistrate, Sri Ganganagar and presented a challan in the court of the Chief Judicial Magistrate under sections 307, 120 B read with sec. 34, I. P. C. and sections 25 and 27 of the Arms Act, against the accused persons including the two appellants after concluding the investigation.

(3.) LIKEWISE, the evidence of Gangajal that Roopa Ram had given his gun to Harji prior to the commission of the offence is not worthy of credence. Gangajal admitted in his cross-examination that there was litigation going on between him and Roopa Ram prior to the occurrence and, as a consequence thereof, their relations were strained. This witness went to the length of saying that Roopa Ram and another person Raja Ram, who has been acquitted in this case, talked to Harji for five or ten minutes on the road near the jeep Thereafter, Raja Ram came to the court permises and Roopa Ram drove the jeep to the western gate of the premises of the court. Thereafter, Raja Ram again went near the jeep and talked to Roopa Ram and Harji. These facts have not been stated by Dula Ram and Perma Nand in their statements On the other hand, Perma Nand stated in his examination-in-chief that Roopa Ram and Harji got down from the jeep and went near the boundary wall of the court premises where they met Raja Ram. Apart from this, Gangajal was contradicted by portion C to D of his statement Ex. . D. 2 which he gave before the police wherein he stated that Roopa Ram and Raja Ram, while pointing towards Dula Ram, uttered the following words:-DUSHMAN NISHANE ME KHADA HE MAR GOLI". In his statement before the trial court, he merely stated that Roopa Ram, Raja Ram and Harji were talking to each other immediately prior to the firing of the shot but he could not hear their talks When confronted with the above portion of his police statement, Gangajal could not explain the referred-to above material discrepancy in his two statements. He merely stated that he did not tell the police that the words quoted above were uttered by Raja Ram and Roopa Ram at that time. There is another discrepancy of material nature in his two statements. The discrepancy is that in his cross-examination at the trial. Gangajal stated that he knew beforehand that the gun was double barrel gun belonging to Roopa Ram and he clearly stated before the police that the gun was a double barrel one. When contradicted by his previous statement Ex. D 2, he could not say why this fact was not written in his police statement. The evidence of Gangajal cannot be accepted so far as it relates to the part played by Roopa Ram because at the initial stage he implicated Roopa Ram by saying that he instigated Harji to kill Dula Ram by uttering the words "dushman NISHANE ME KHADA HE MAR GOLI" and subsequently changed his version without any reason and rhyme by stating that he could not hear the talks going on between Harji, Roopa Ram and Raja Ram immediately prior to the commission of the offence. It appears that out of enmity between him and Roopa Ram, he made an attempt to entangle Roopa Ram in this case by falsely stating that the gun was handed over to Harji by him.