State of H.P. vs Ravinder Kumar

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 17.1.1995 delivered by the learned Sessions Judge, Shimla in Sessions Trial No. 6-S/7 of 1991 whereby he acquitted the accused of having committed offences punishable under Sections 450 and 307 of the Indian Penal Code read with Section 27 of the Indian Arms Act.

The undisputed facts are that the accused was a tenant in the premises owned by Mr. J.S. Rurki, father of the injured Manju Kapoor. Mr. Rurki had filed an eviction petition against the accused and an eviction order had been passed against him. Therefore, the relations between the parties were strained. According to the prosecution on 18.6.1988, at about 9.30 a.m. Mrs. Veena Rurki, wife of Mr. J.S. Rurki, accompanied by her daughter Manju Kapoor asked the accused why he had not vacated the premises. On this, the accused told her that he had obtained a stay order from the Court. He started abusing Mrs. Veena Rurki and threatened to kill her and her daughter Manju Kapoor. Veena Rurki and Manju Kapoor returned to their flat in the second floor of the building owned by her husband. The accused was a tenant on the first floor. According to the prosecution, the accused immediately followed Mrs. Veena Rurki and her daughter Manju Kapoor and fired a shot from his licensed revolver and the gunshot hit the breast of Manju Kapoor. As a result of this Manju Kapoor fell down. Mrs. Veena Rurki and her son Neeraj immediately closed and bolted the door from inside. She also raised hue and cry. In the mean time, the accused fired two more shots. Jatinder and Haminder knocked at the door of Mrs. Veena Rurki. Her son Neeraj went to inform the police. It is alleged that this incident was also witnessed by one Mr. Bhatti who was staying in the house of Mrs. Veena Rurki as a guest. Mrs. Veena Rurki also gave telephonic information about the incident to the police. It transpired that one of the other shots fired by the accused hit the railing of the staircase and the splinters hit the leg of one Dr. Deep Kishore, who was a tenant in the ground floor of the building. Thereafter, the statement of Mrs. Veena Rurki was recorded u/s 154 Cr.P.C. and on this basis F.I.R. was lodged. Manju Kapoor who was pregnant was treated and remained in the hospital. Her pregnancy was terminated. The police arrested the accused. The pistol and the licence of the revolver used by the accused were taken into possession. The police also took into possession wooden pieces which fell down when the shots were allegedly fired by the accused in the house of Mr. J.S. Rurki. Spot map was prepared and the area got photographed. On the basis of the investigation, report u/s 173 Cr.P.C. was filed. Since the offence was exclusively triable by the Court of Sessions, the Magistrate committed the case to Sessions Court. After trial, the accused was acquitted. Hence the present appeal.

The accused has not denied the fact that the shot fired from his revolver hit the injured Manju Kapoor. However, according to him the incident did not take place in the flat of Mr J.S. Rurki on the second floor but actually took place in the flat of the accused on the first floor. The accused filed a written statement Ext. DA setting forth his version and even in his statement u/s 313 Cr.P.C. has stated that his version given in the written statement is correct. According to the written statement of the accused, Mr Rurki had hired some goons to forcibly evict him from the premises rented out to him. These goons alongwith Neeraj son of the complainant entered his tenanted premises. One person caught hold of him and the others started throwing his luggage out. He then fired one shot from his revolver which hit the ceiling of his room. Then one of the persons caught hold of him and during this scuffle, the revolver went off and the bullet hit Manju Kapoor. Manju Kapoor and others then left his flat. The accused remained standing near the door of his house. He heard the sound of some persons coming up. He fired another shot to scare away the persons, since he apprehended mischief from such persons. This bullet hit the iron rod of the railing of the staircase and the splinters hit Deep Kishore. According to the accused, he used to teach Manju and treated her like a daughter. He also stated that the investigation was unfair and the facts which he brought to the notice of the police were not actually noted by the police. The learned court below accepted the plea of the accused and acquitted him. Hence this appeal by the State.

We have heard Mr. Vivek Singh Thakur, learned Additional Advocate General and Mr. Ajay Kumar Dhiman, learned Counsel and have gone through the entire records of the case.

Mr. Vivek Thakur has urged that it has been proved on record that the incident took place in the manner stated by the prosecution. The accused had followed Mrs. Veena Rurki and her daughter Manju Kapoor to the first floor. He stated that since the accused had admitted the fact that Manju Kapoor was injured due to gun shot from the revolver owned by him, the case stands proved against the accused and he should be convicted and sentenced for having committed offences punishable under Sections 450 and 307 IPC.

On the other hand, Mr. Ajay Kumar Dhiman, learned Counsel appearing for the accused urged that since the accused had been acquitted, the presumption of innocence is available to the accused under criminal law. He also contended that the learned Sessions Court had given valid reasons for acquitting the accused and submitted that the judgment calls for no interference. He further urged that the accused did not run away, which shows that he is an innocent. He stated that no blood samples from the staircase were taken, which proves that the incident happened in the premises of the accused. Lastly, he submitted that the accused had no intention to kill Manju Kapoor.

Mrs. Veena Rurki appeared as PW-9. According to her she and her daughter Manju Kapoor asked the accused as to why he had not vacated the residence. The accused told that he had obtained stay orders from the court and started abusing her and her daughter. He also threatened to kill them. According to her, she and her daughter returned to her own flat on the second floor of the building. The accused who was residing in the first floor followed them immediately with a pistol in his hand. Then he entered the room and fired a shot at her daughter Manju Kapoor and the bullet hit Manju Kapoor on her breast. Before the accused could fire again she shut the door and her son bolted the door. She then raised an alarm. Dr. Deep Kishore who was going to the office heard her cries and came back. She heard two more shots. Thereafter Jatinder and Haminder asked her to open the door. Her son went to Shimla and Boileauganj Police Stations to report the matter. She also telephoned the police and requested that her daughter, who was in serious condition, be taken to the hospital immediately. Manju Kapoor was sent to the hospital in a car. Dr. Deep Kishore had a bullet injury on his leg. Another shot had hit the wall. According to her, Jatinder had bolted the door of the room of the accused from outside and the accused was, therefore, locked in his room. Then the police came to the spot and recorded her statement Ext. PH u/s 154 Cr.P.C. and took into possession splinters of the pellets, three pieces of cement and got the place photographed. In cross-examination, she denied the suggestion that she had threatened the accused that he would be forcibly evicted if he did not vacate the premises. She denied the suggestion that she brought 3-4 goondas to forcibly evict the accused and that these goondas alongwith her son forcibly entered the premises of the accused. She also denied the suggestion that one of the goondas caught hold of the accused and the other persons started throwing his luggage outside. She also denied the suggestion that these persons assured the accused that they would take his luggage to a safer place. She denied the suggestion that during this melee the accused managed to get hold of his revolver and fired one shot in the air. She also denied the suggestion that Manju came inside the room and asked the accused to free her brother. She further denied the suggestion that one of the persons caught hold of the hand of the accused and during this scuffle a shot got accidentally fired and hit Manju inside the room of the accused. She also denied the suggestion that thereafter the accused was standing close to the door in order to guard his room and on hearing the sound of the persons coming towards him then he again fired which hit the iron rod and then hit Deep Kishore. She denied the suggestion that the accused used to teach injured Manju Kapoor. According to her the incident had happened in her room where she, her daughter, son and Mr. Bhatti were sitting.

PW-10 Manju Kapoor is the injured. In examination-in-chief she has reiterated what has been stated by the mother. According to her when her mother asked the accused when he was vacating the accommodation, the accused used filthy language against them. They came back to their flat on the second floor. The accused followed them and fired a shot with a pistol. A gun shot hit her breast. She became unconscious and regained consciousness in the hospital. She remained hospitalized for 11/2 months and her pregnancy was terminated due to this injury. Some of her ribs were also removed. In cross-examination she stated that they simply asked the accused to vacate the house and nothing else. She also stated that in her presence the accused had never been asked to vacate the premises. She stated that she was standing inside the room and her mother was standing at a little distance from her. The door was opened and they had just entered the room when the shot was fired. She knew the accused since he was residing as a tenant in her father''s building. It is pertinent to mention that other than this cross-examination, the injured has not been subjected to any other cross-examination. No suggestion has been put to her that the goondas had come and they were throwing out the luggage of the accused. No suggestion has been put to this witness that the incident occurred in the flat of the accused in the manner set out by him in his written statement.

Mr. S.S. Bhatti was examined as PW-12. He admitted that he is a friend of Shr. J.S. Rurki, father of the injured. According to him he was sitting in the drawing room of the flat of Mr Rurki on the second floor of the building. He heard the sound of a gunshot between 9.30-945 a.m. On hearing this, he rushed towards the door and found that Mrs. Rurki and her son Neeraj Neeraj were closing the door and that Manju Kapoor had received bullet injuries on her breast and was lying on the ground. Mrs. Rurki told him that Mr. Singha had fired a shot at them. Thereafter he heard two more shots from the lower flat and then two boys came and asked Mrs. Rurki to take Manju Kapoor to the hospital. He denied the suggestion that Manju had received the injury in the room of the accused and was thereafter brought to the room by Mrs. Rurki. He also denied the suggestion that two shots had already been fired when she was brought to the room.

Neeraj, son of Mrs. Veena Rurki was not examined. The next important witness is Mr Deep Kishore, who had also suffered injuries. He was working as Senior Scientist in Indian Agriculture Research Institute. He resided in the ground floor of the house of Mr. J.S. Rurki. In his testimony he stated that on 18.6.1988 at about 9.30 or 9.45 a.m. he had left for his office and when he had hardly gone 50 steps from his house he heard a loud bang from the side of the staircase of the building belonging to Mr. Rurki. He stopped and heard Mrs. Veena Rurki crying (Mar Diya Mar Diya, Larki Ko Mar Diya). The witness then called his wife. While climbing the staircase, they saw the accused running to his room from the side of the upper floor. He also received a bullet injury on his leg. The shot was fired at him. After firing the shot, the accused went inside his room. The witness pushed his wife and asked her to run away from the place. He also went out immediately. He was then taken to the hospital. He also denied that he had heard two shots and stated that initially he heard only one shot. He stated that he did not see the luggage of the accused lying in the lawn. He also denied the suggestion that Mrs. Rurki had called 3-4 persons from outside to forcibly evict the accused from his room. After receiving the injury, this witness did not go to the room of Mrs. Rurki.

The other witness who was relevant is PW-13 Jatinder. He stated that on 18.6.1988 he heard Mrs. Rurki shouting that Mr. Singha had fired a shot. He is a neighbour and immediately went towards the scene of occurrence and found Manju in an injured condition. According to him he went to the room of the accused and bolted the room from outside and thereafter asked Mrs. Rurki to take Manju Kapoor to the hospital. A suggestion was put to the witness which he denied that he alongwith Mrs. Rurki and her family members threatened the accused to evict the premises on 16.6.1988. He also denied the suggestion that he alongwith 3-4 other persons were forcibly taking out the luggage of the accused from his room. He denied the suggestion that the occurrence took place in the room of the accused.

Mr. Swaran Singh, PW-16, is the other important witness. According to him he is neighbour of Mrs. Rurki. When he was leaving for his office he saw that a lot of people had gathered outside the house of Mr. J.S. Rurki. He noticed blood on the stairs of the house of Mr. Rurki. He then met Mrs. Rurki and on enquiry she told that the accused had fired the bullet at her daughter and that one tenant had also been injured by a bullet. By that time, both the injured had already been taken to the hospital. The police recovered a pistol and live cartridges alongwith licence vide Memo Ext.PW-16/A and Ext.PW-16/B. The blood stained earth was also taken into possession vide Memo Ext.PW-16/C. In his presence wood and cement pieces were also taken into possession. In cross-examination he stated that he saw blood on the stairs leading to the floor of Mr. Rurki.

PW-1 Dr Nirdosh treated the injured Manju Kapoor and according to him the injuries on the person of Manju Kapoor were dangerous to life. PW-2, Dr. V.K. Bhardwaj examined Mr. Deep Kishore. It is pertinent to mention that though a suggestion was put to Mrs. Veena Rurki that she alongwith some goondas were throwing out the luggage from the room of the accused, no such suggestion was given to Manju Kapoor. No suggestion has been given to Manju Kapoor about the manner of the occurrence, as taken in defence by the accused. In fact, even while giving suggestion to Mrs. Veena Rurki that goondas were being used, none of the goondas has been named. However, when Jatinder appeared in Court a suggestion was put to him that he was one of the persons accompanying Mrs. Rurki who was throwing out the luggage of the accused. In case Jatinder had been one of such persons, he being a neighbour living adjoining to the house of Mrs. Rurki, it would not have been difficult for the accused to have named him while cross-examining the other witnesses of the prosecution.

The learned trial court has been swayed mainly by one fact that PW-16 Swaran Singh has stated that he noticed the blood on the stairs of Mrs. Rurki and that the blood was on the stairs leading to the floor of Mrs. Rurki. There is nothing on record to show that Manju Kapoor was not taken to the hospital by the same stairs. There is no material on record to show otherwise. Even otherwise this is a minor discrepancy, the blood may have been noticed on the lower staircase where Deep Kishore had suffered injuries. Be that as it may, the ocular evidence in this case is that of the injured Manju Kapoor, her mother Mrs. Veena Rurki, the guest Mr. Bhatti and Mr. Deep Kishore who all have clearly stated that the incident occurred on the top floor. Mr. Deep Kishore, who is a senior Scientist, has clearly stated that while going upstairs he saw the accused coming from the house of Mrs. Rurki and going into his house and he fired at him. This statement leaves no manner of doubt that the incident took place on the top floor.

The version of the accused that 3-4 goondas had entered into the room with Mrs. Rurki does not appear to be true. If that had been true then the luggage and goods of the accused would have been found outside his flat. None of the witnesses has stated that any luggage was found outside the flat. This belies the defence version.

Another reason to disbelieve the defence is that the pieces of wood and cement, which fell off due to the bullet hitting the wall, were found on the top floor of the house and not on the floor of the accused.

The accused has also not given any explanation as to how he got the revolver immediately. Normally a revolver is kept at a safe place and an ordinary person would not keep the revolver in an open place. No explanation has been come from the accused as to how the revolver was with him and from where he picked up the same.

We may mention that while the matter was being argued in Court the accused was personally heard and he stated that he had entered into an agreement with some person to sell the revolver and, therefore, had kept the revolver in the drawing room itself. Though this has been argued, but no suggestion in this behalf has been put to the witnesses. This defence was not taken in the trial court and cannot be permitted to be raised at this stage.

We are dealing with an appeal against acquittal. We may note the principles relating to the powers of the Appellate Court while dealing with an appeal against acquittal which have been enumerated by the Apex court in Chandrappa and Others Vs. State of Karnataka, The apex Court held as follows:

Bare reading of Section 378 of the present code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and law are open to determination by the High court in an appeal against an order of acquittal.

It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

Thereafter the Apex Court culled out the following principles:

From the above decisions, in our considered view, the following general principles regarding powers of appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law''

(3) Various expressions, such as, ''substantial and compelling reasons'', good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusion'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

In the present case we are constrained to observe that the learned trial court acquitted the accused on wholly imaginary and conjectural grounds. The evidence, which has been discussed in detail above, clearly shows that Manju Kapoor suffered injuries in the flat of her father and not in the room of the accused. The story of the defence that since he was not vacating the premises, goondas were brought to evict him cannot be believed to be correct. The eviction order had admittedly been passed against the accused. Why should a landlord who has obtained an eviction order resort to such illegal methods of eviction. Even otherwise, as mentioned above while cross-examining the injured Manju Kapoor, no suggestion in this regard has been put to her. The learned trial court has totally misread the evidence in holding that the incident occurred in the room of the accused. If the television and refrigerator of the accused had been thrown out, they would have been found outside his house, but there is no such evidence.

The learned trial court has also gravely erred in holding that the investigation was biased and not impartial. We fail to understand on what basis the learned trial court come to this conclusion. The only fault in the investigation is that the F.I.R. Ext. PW-18/E should have been recorded on the basis of the telephonic information Ext.PW-18/C and the police should not have waited to record the statement of Mrs. Veena Rurki u/s 154 Cr.P.C. before recording the F.I.R. But such defect in the investigation cannot by itself become a ground to acquit the accused. The law is well settled that the accused cannot be acquitted only on the ground that there is some defect in the investigation. It would be pertinent to mention that the report regarding the incident was recorded in the Rapat Roz Namcha vide Ext.RW-18/C at 10.00 a.m. A similar report was recorded when Mrs. Veena Rurki again rang up. F.I.R. was recorded on the same day at 11.00 a.m. and there is no unexplained delay. The incident occurred between 9.30 and 10.00 a.m. and, therefore, there is no delay in recording the F.I.R. Therefore, no benefit can be given to the accused.

From the evidence led on record, it cannot be said whether the accused entered the house of Mr Rurki or not. In fact it appears that he fired from the door itself. Therefore, the accused cannot be held guilty and his acquittal u/s 450 IPC is upheld.

It is, however, apparent that the accused used a dangerous weapon like a revolver and he shot at Manju Kapoor. He also shot at Deep Kishore. His intention may not be to kill Manju Kapoor, but he acted in a very reckless manner and voluntarily caused grievous hurt with a dangerous weapon to Manju Kapoor. Therefore, he is found guilty of having committed an offence punishable u/s 326 IPC. Since he used a licensed revolver to shoot at Manju Kapoor and Deep Kishore without any reasonable cause in violation of Section 5 of the Indian Arms Act, the accused is also found guilty of having committed an offence punishable u/s 5 of the Indian Arms Act.

Having held the accused guilty for the commission of the aforesaid offences he has to be heard on the question of sentence. For this purpose alone the matter be listed on 25th June, 2010. The accused is directed to personally present on the next date.