Lakhi Ram and ors. vs State of Haryana

S.S. Grewal, J.

This appeal is directed against the order of Additional Sessions Judge, Sonepat, dated 24.7.1992, whereby Lakhi Ram appellant was convicted under Section 307 of the Indian Penal Code, for firing at Suresh and causing injuries on the palm of his right arm. He was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. He was also convicted under Section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 250/. In default of payment of fine he was ordered to undergo further rigorous imprisonment for one month. Both the substantive sentences of imprisonment were ordered to run concurrently. Umed Singh, Vijinder and Raj pal alias Rajinder appellants were convicted under Section 307 read with Section 34 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/ each. In default of payment of fine, the defaulting appellant was ordered to undergo further rigorous imprisonment for one year.

In brief facts relevant for the disposal of this appeal are that on 2.10.1989, at about 5 P.M. Suresh PW along with his father Piare Lal, Raghbir Singh and Sube Singh were sitting in his Pauli (Baithak). At that time Lakhi Ram accused armed with a single barrel gun, Umed Singh accused armed with a Kasola and Vijinder and Raj Pal alias Rajinder accused armed with Jalleys came there and raised lalkara that they would kill Suresh PW and take revenge from him for quarrelling with Lakhi accused on the previous occasions. Immediately thereafter Lakhi Ram accused fired from his gun hitting Suresh on the palm of his right arm. Thereafter all the four accused ran away from the spot along with their respective weapons. Suresh injured was first removed to Primary Health Centre, Kharkhoda then to Medical College Hospital, Rohtak and got admitted there. On the basis of the Statement of Raghbir Singh PW formal first information report was registered at the Police Station at 11.55 P.M. on the same day. However, statement of Suresh PW was recorded on 4.10.1989 when he was declared fit to make a statement by the doctor. Raj Pal alias Rajinder and Lakhi Ram accused were arrested on 5.10.1989 and on the next day in pursuance of his disclosure statement, Lakhi Ram accused got recovered his licensed gun and belt containing 16 live cartridges which were duly taken into possession through seizure memo. After arrest of the other accused and completion of the investigation, all the four accused were challaned, tried, convicted and sentenced as stated earlier.

The learned counsel for the parties were heard.

The ocular account in the instant case rests on the testimony of Suresh injured, his father Piare Lal and Raghbir Singh first informant who is a Police Inspector and had come to his village on leave on the day of occurrence.

The learned counsel for the appellants assailed the testimony of the eye witnesses mainly on the ground that their testimony is contradicted by the medical evidence on the record. It was submitted that apart from the fact that there are material contradictions concerning the distance from which the firearm used by Lakhi Ram appellant was fired at Suresh PW, the testimony of Dr. Sanjay Narula, who conducted the medicolegal examination of the said injured reveals that the shirt of the injured showed opening with light blackening around and even though this doctor did not observe any blackening of margins or singeing of hair, Dr. M.K. Soni had observed some muscles and tendons in both the wounds i.e. entry and exit wounds were lacerated with charring of muscles at places. On the aforesaid observations, it was submitted that the shot in fact had been fired from a very close range or even while the firearm was pressed against the seat of the injury. Reference in this regard was made to the observations of Dr. Modi in his Medical Jurisprudence and Toxicology, 20th Edition at page 227 wherein it was observed that :

"If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hair is singed, and the clothes covering the part are burnt by the flame, If the powder is smokeless there may be a greyish or white deposit on the skin round the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like shotgun is discharged from a distance of not more than 3 feet and a revolver or pistol discharged within about 2 feet. In the absence of blackening no distinction can be made between one distant shot and another, as regards to distance. Scorching in the case of the latter firearm is observed within a few inches, while some evidence of scorching in the case of shot guns may be found even at 1 to 3 feet. Moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the tract of the bullet in the body."

Reference was also made to the following observations of Dr. B.R. Sharma, in his book on Forensic Science in Criminal Investigation and Trials, 1990 Edition at page 269 concerning determination of range of fire (Muzzle Patterns) :

"When a firearm is pressed against the human target and fired, the muzzle of the firearm leaves an imprint on the target. The existence of the muzzle pattern, therefore, indicates a contact wound. Such wounds are often observed in suicide cases. The whole charge (projectiles, wads, if any, smoke, unburnt or semiburnt powder particles and hot gases) enter into the target. No burning, blackening and tattooing phenomena are observed around the entrance hole. Instead, they are observed inside the wound when carefully examined."

In the instant case, the fact remains that the observations and the opinion of the Medical Experts varies to a much greater extent. Only Dr. M.K. Soni, who operated upon Suresh twice first on 2.10.1989 and secondly on 5.10.1989 deposed that some muscles and tendons in both the wounds were found cut and lacerated with charring of muscles at places. Yet no question was asked from this witness to clarify as to whether such a wound would be caused by a firearm while it was in contact with the skin at the time of firing or from a very close range. Even this doctor admitted that he had not found the tuft of hair removed from the wound were singed and the same were normal. The other medical experts were not questioned on this material aspect of the case. Dr. Sanjay Narula, who conducted medicolegal examination of Suresh has categorically mentioned while describing the injuries in details, that no blackening of margins or singeing of hair were present. He further deposed that he did not see specifically any pellet holes in the shirt except opening and blackening mentioned in the medicolegal report. Thus were facts that this doctor had observed light blackening around the shirt would hardly be of any consequence. From the nature and extent of injuries, it cannot be reasonably inferred that the firearm was used when the same was tightly pressed against the seat of injury which could be caused by firearm from a short distance.

The opinion expressed by Dr. Modi in his Medical Jurisprudence and Toxicology, referred to above, relates to exceptional cases whereas in majority of cases the presence of blackening, singeing and scorching around the entrance wound would be expected where the firearm is used either while it is in close contact with the seat of the injury or is fired from a very close range.

It is true that Raghbir Singh PW admitted under stress of cross examination that Lakhi Ram opened single barrel fire from a distance of 25 to 30 feet, whereas both Piare Lal and Suresh PWs who were also examined on the same day as Raghbir Singh, gave distance from which Lakhi Ram accused fired his gun as 5/6 feet. It is also pertinent to note that all the three eye witnesses were examined on the same day, the Medical Experts were examined on a later date. As Suresh injured received the injury from the front side, he would be in a much better position to judge the distance from which he was fired at. I would, thus, prefer the testimony of both Suresh and Piare Lal PWs on this point. Taking into consideration the length of the gun used in this case, the distance of the muzzle from Suresh PW would be at about 3 feet or so. The injuries received by Suresh PW thus could very well be caused from such a short distance and not by contact of the muzzle of the gun with the seat of the injury, as in the latter case the damage caused would be much more extensive than that observed by the Medical Experts in the present case. In view of the aforesaid discussion mere omission on the part of the Investigating Officer not to observe any pellet on the nearby wall where the occurrence took place or presence of any wad would hardly be of much consequence. In view of the facts and circumstances, referred to above, the medical evidence on the record lends independent corroboration to the ocular account rather than contradicting it, as pleaded by the learned defence counsel.

There is delay of about six hours in lodging the first information report in this case which was lodged by Raghbir Singh who himself was a police Inspector. In the circumstances of the present case it would be prudent to seek independent corroboration concerning the presence and participation of the accused at the time of the occurrence. The presence of Suresh and Piare Lal PWs in the Baithak when the occurrence took place as well as Raghbir Singh PW who has given a valid reason for his presence at the time of the occurrence, is natural probable and convincing. No other infirmity worth the name has been pointed out in the testimony of the three eye witnesses including Suresh injured whose testimony is credible and trustworthy and finds ample corroboration from the medical evidence.

According to the defence, the presence and participation of Lakhi Ram accused near the place of occurrence is admitted. The plea taken by Lakhi Ram accused is to the effect that he came near the Baithak when he found Rajpal alias Rajinder, surrounded by Suresh, his brother Mohinder Singh and few others who were outsiders and they wanted to bodily lift Raj Pal. He tried to intervene and was also surrounded by those persons and in the process, trigger of his gun went off accidentally and Suresh suffered injuries and he was falsely implicated. Rajpal alias Rajinder accused has adopted the statement of his coaccused Lakhi Ram. However, the defence plea has to be either accepted or rejected as a whole. Even otherwise there is no reliable evidence on the record to establish the presence of Raj Pal alias Rajinder appellant or that he shared the common intention of his coaccused Lakhi Ram for attempting to commit the murder of Suresh. The defence version is clearly an after thought and is a cock and bull story which does not inspire any confidence and I have not the least hesitation in rejecting the same.

No independent corroboration to the ocular account is forthcoming so far as presence and participation of Umed Singh, Raj Pal alias Rajinder and Vijinder appellants at the time of the main occurrence is concerned. It is true that Suresh PW deposed that Umed Singh had raised a lalkara exhorting his other coaccused to kill him, whereas, both Piare Lal and Raghbir Singh PWs deposed that all the accused had raised lalkaras. In the absence of corroboration on material aspects of the prosecution story, the very presence and participation of Umed Singh, Vijinder Singh and Raj Pal alias Rajinder appellants at the spot at the time of the occurrence seems highly doubtful. In this part of the country, there is an unfortunate tendency to rope in an innocent with the guilty and as an abundant caution giving the benefit of doubt, I hereby acquit Umed Singh, Vijinder and Raj Pal alias Rajinder appellants.

So far as Lakhi Ram appellant is concerned, he has been rightly convicted under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act by the learned trial Court. His conviction under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act by the learned trial Court is maintained. However, the sentence awarded by the trial Court under Section 367 of the Indian Penal Code to Lakhi Ram appellant is highly excessive. Taking into consideration the fact that he underwent agony of trial for about 22/3 years in the trial Court and his appeal remained pending in this Court for more than 11/2 years, the manner in which the occurrence took place and other material circumstances, the sentence of imprisonment for ten years awarded to Lakhi Ram appellant is reduced to rigorous imprisonment for four years under Section 307 of the Indian Penal Code. The sentence of fine or in default thereof under Section 307 I.P.C. awarded to Lakhi Ram appellant is maintained. The sentence of imprisonment awarded to Lakhi Ram appellant under Section 27 of the Arms Act and fine or in default thereof is also maintained. Both the substantive sentences of imprisonment shall, however, run concurrently. Out of the fine, if realised, the entire amount shall be paid as compensation to Suresh injured.

This appeal is partly allowed to the extent indicated above.