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PETITIONER: BHAGIRATH & ORS.

       Vs.

RESPONDENT: THE STATE OF HARYANA

DATE OF JUDGMENT:       11/07/1996

BENCH: KURDUKAR S.P. (J) BENCH: KURDUKAR S.P. (J) MUKHERJEE M.K. (J)

CITATION:  JT 1996 (6)   594        1996 SCALE  (5)136

ACT:

HEADNOTE:

JUDGMENT:                  THE 11TH DAY OF JULY, 1996 Present:           Hon’ble Mr. Justice M.K.Mukherjee           Hon’ble Mr. Justice S.P.Kurdukar R.L.Kohli, Sr.Adv.  and R.C.Kohli,  Adv. with  him  for  the appellants D.B.Vohra, K.C.Bajaj,  Advs. for Ms. Indu Malhotra, Adv. for the Respondent.                       J U D G M E N T The following Judgment of the Court was delivered: Bhagirath and Others V. The State of Haryana                       J U D G M E N T S.P.KURDUKAR, J.      This  Criminal   Appeal  is  filed  by  the  appellants (accused) challenging  the legality  and correctness  of the order of conviction and sentence dated 12-4-1989 in Sessions Case No.  77 of  1989 passed  by the  Designated Court under section 307/34  of the Indian Penal Code and also section 27 of the  Arms Act  and section  6(1)  of  the  Terrorist  and Distruptive Activities  (Prevention) Act,  1985  (for  short ’TADA’). 2.   The prosecution  case  may  be  briefly  summarized  as under:-      On 7-7-1986  at about  7.00 a.m., Rajinder (PW5) and is uncle Kishan  Lal (PW6)  were coming out of the house of the latter in order to go to their fields. When they came out of the house,  they noticed  Jai Kishan  (A-2) was armed with a gun and  standing by  the side  of Panchayat Ghar. Rai Singh (A-3) was  standing there  with a  12 bore pistol. Bhagirath (A-1) was  standing behind  the bitora  with a DBBL gun near the Panchayat  Ghar. It  is alleged  by the prosecution that they gave  lalkara to Rajinder (PW5) and Kishan Lal (PW6) to stop and  they would  teach a lesson for filing the criminal appeal against them. Immediately, thereafter all the accused

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stretched their  weapons towards  Rajinder (PW5)  and Kishan Lal (PW).  They raised  a shout whereupon Partap came out of his house.  At that time, Jai Kishan (A-2) fired side of his right shoulder. Bhagirath (A-1) fired a shot from his gun at kishan Lal  (PW6) hitting  him on his right thigh. Rai Singh (A-3) also  fired form his pistol. Due to gun shot injuries, Rajinder (PW 5) and Kishan Lal (PW 6 ) fell down in front of the door.  Pratap raised  a raula  upon which  all the three accused fled away to their houses with their weapons. Partap also fired two shots in the air from the gun of Rajinder (PW 5) with  a view  to save  the injured  persons from  further assault. The  injured were  then taken to Fatehabad hospital for medical  were  then  taken  to  Fatehabad  hospital  for medical treatment.  A ruqqa  Ex.PC was  sent to  the  Police Station alongwith  copies of  M.L.Rs  at  about  10.00  a.m. Inspector Jai  Narain, SHO  (PW  8)  attached  to  Fatehabad Police Station  reached the hospital and after obtaining the opinion of Dr. R.S.Bishnoi (PW 1) about the condition of the injured persons recorded the statement of Rajinder (Ex. PH). Jai Narain,  SHO (PW  8) forwarded the said statement to the Police Station  on which formal FIR Ex. PH/1 was recorded in Police Station,  Fatehabad. Statement  of Kishan  Lal (PW 6) was also  recorded. Jai narain, SHO (PW 8) then recorded the statements of  various persons  and seized  the blood  stain clothes of  the injured.  On 10-7-1986,  Bhagirath (A-1) was arrested and  the licenced  DBBL gun  (Ex.P5) was  recovered from his  possession with  two  live  cartridges.  His  arms licence (Ex.P4)  was also  recovered. After  completing  the necessary  investigation,   a  charge  sheet  was  submitted against all  the appellants  for offences  punishable  under section 307  read with  section 34  of the Indian Penal Code and under  section 25 of the Arms Act and also under section 6(1) of  TADA. The Designated Court found that a prima facie case was  made out  against  the  appellants  under  section 307/34 IPC  and under  section 25  of the  Arms Act and also under section 6(1) of TADA. 3.   The appellants  denied the charge and claimed that they are innocent  and they  have been  falsely implicated in the present case. They further stated that the complainant party bore a  grudge and  enmity against them and, therefore, they have been  falsely implicated  in the  present  crime.  They prayed that they be acquitted. 4.   The prosecution  mainly relied upon the evidence of two injured persons,  namely, Rajinder (PW 5) and Kishan Lal (PW 6) in addition to the evidence of Dr. R.S.Bishnoi (PW 1) who issued the  injury certificates  in respect  of injuries  to these two injured persons. 5.   The trial court after examining the materials on record and after careful perusal of the evidence of Rajinder (PW 5) and Kishan  Lal  (PW  6)  found  the  appellants  guilty  of offences  for   which  they  were  put  up  for  trial.  The Designated Court vide its impugned judgment found Jai Kishan (A-2) guilty  of offence  punishable under  section 307 IPC. Bhagirath (A-1)  and Rai Singh (A-3) were held guilty for an offence punishable  under section  307/34  IPC  for  causing injuries to  Rajinder. Bhagirath  (A-1) was also held guilty and convicted under section 307 IPC alongwith Jai Kishan (a- 2) and Rai Singh (A-3) for offences punishable under section 307/34 IPC  for causing  injuries  to  Kishan  Lal  (PW  6). Additionally Bhagirath  (A-1) was  also held  guilty for  an offence punishable  under section  27 of  the Arms  Act read with  section  6(1)  of  the  TADA.  Consistent  with  these findings, the Designated Court awarded seven years’ rigorous imprisonment to  all the  appellants under section 307/34 of the Indian  Penal Code  for causing injuries to Rajinder (PW

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5) and  Kishan Lal  (PW 6). Bhagirath (A-1) was sentenced to undergo rigorous imprisonment for two years under section 27 of the  Arms Act read with section 6(1) of the TADA. All the substantive sentences  were ordered  to run concurrently. It is this  order of  conviction  and  sentence  which  is  the subject matter of challenge in this criminal appeal. 6.   Mr. R.L.Kohli,  learned  Senior  Counsel  appearing  in support of  this appeal  urged that the evidence of Rajinder (Pw 5)  and Kishan  Lal (PW 6) is totally unreliable. It was contended that  both these  witnesses bore an enmity against the  appellants  and,  therefore,  they  have  been  falsely implicated in  the present  crime. It was submitted that Rai Singh (A-3)  and Jai Kishan (a-2) were earlier tried for the offence of  murder of  Ra, Kumar,  father of Rajinder (PW 5) and ultimately  both of  them were  acquitted  by  the  High court. Against this  order of acquittal, Rajinder (PW 5) has filed the appeal in this Court which was pending at the time of the  incident. It is because of this enmity, Rajinder (PW 5) and  Kishan  Lal  (PW  6)  have  falsely  implicated  the appellants in the present crime. 7.   After going through the evidence of Rajinder (PW 5) and Kishan  Lal   (PW  6),   we  find  that  their  evidence  is trustworthy and  cannot be  rejected on the ground put forth on behalf  of the appellants. It is true that Jai Kishan (A- 2) and  Rai Singh (A-3) were tried for the offence of murder of Ram  Kumar father  of Rajinder  (PW 5) but that by itself could not  be sufficient  ground  in  the  present  case  to disbelieve the evidence of these two injured witnesses. In a case of  this nature,  all that is required is to scrutinies the evidence  of such  witnesses very carefully. Motive is a double edged  weapon. it  is also  well  settled  that  when prosecution relies upon the evidence of the eye witnesses to prove the  incident, motive assumes a secondary role. In the present case,  the  testimony  of  eye  witnesses  if  found acceptable  and,   therefore,  adequacy  of  motive  is  not relevant. In  out considered  view, the  motive sought to be relied  upon  by  the  appellants  in  no  way  affects  the credibility of  the injured witnesses. We, therefore, see no substance in the first contention. 8.   It was  then urged on behalf of the appellants that the manner in  which the  incident of  firing was alleged by the prosecution is  totally imaginary  and having  regard to the distance and  the spot  of firing, it was inconceivable that the  injuries  of  this  nature  could  be  caused.  It  was contended on behalf of the appellants that according to both the injured  witnesses, Bhagirath  (A-1) was standing behind the bitora  from  where  he  fired  through  DBBL  gun.  The prosecution evidence  further  shows  that  Bhaigarth  (A-1) fired from  the height  of 5’.  If firing  is done from that angle and  range, counsel  urged that it would be impossible to cause  the injury in question. This submission again does not appeal  to us because Rajinder (PW 5) and Kishan Lal (PW 6) have  given necessary  details how  all the three accused stretched their guns and fired at them which caused injuries on their  persons. It  cannot be forgotten that the incident in question  took place  at about  7.00 a.m. in the month of July, 1986  when there  was sufficient day light to identify the accused. Dr.R.S. Bishnoi  (PW 1) had also testified that the injuries  on Rajinder  (PW 5) and Kishan Lal (PW 6) were fire arm  injuries. There  is nothing in the evidence of Dr. R.S. Bishnoi  (PW 1)  to discard  the evidence of both these injured witnesses,  namely, Rajinder  (PW 5)  and Kishan Lal (PW 6). 9.   It may  also be stated that the FIR in the present case was lodged  at the  earliest opportunity without any loss of

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time and  in the  said  FIR  the  names  of  all  the  three appellants  (accused)   were  mentioned  with  reference  to specific role  and the  place from  where they used the fire arm.  The   First  Information   Report  in   all   material particulars corroborates the evidence of Rajinder (PW 5). 10.  It was  then urged  that the  prosecution has  come out with a  story, that  Partap had  fired twice and, therefore, the probability  of injuries  having been caused to Rajinder (PW  5)  Kishan  Lal  (PW  6)  cannot  be  ruled  out.  This submission against  is devoid  of any  merits  because  when Partap came  out of  his house and was his uncle and brother were being  the target  of firing, he opened the fire in the air to  scare away  the appellants. The trial court accepted the prosecution  story in  this behalf  and in the facts and circumstances of  the case, we do not see any reason to take a different view of the said evidence. 11.  Lastly, it  was urged  on behalf of the appellants that having regard  to the  injuries sustained by Rajinder (PW 5) and Kishan  Lal (PW  6), the sentence awarded to each of the appellant is  totally disproportionate.  We do  not see  any substance in  this contention.  The appellants fired through their gunds  at Rajinder  and Kishan  Lal and  it was  their fortune that  pellets did  not hit  on the vital part of the body. It  is clear  from the  evidence on  record  that  the appellants did  attempt to  commit the  murder  of  Rajinder opinion, this is not a case where any leniency in respect of the sentences is called for. 12.  In the  result,  the  appeal  fails  and  the  same  is dismissed. The  appellants, who are on bail, shall surrender to their  bailbonds forthwith  to serve out the remainder of sentences.