Vazir Singh vs State of Haryana

A.P. Chowdhri, J.

Vazir Singh 4(20) was convicted under Secton 307 of the Indian Penal Code by learned Additional Sessions Judge, Sonepat, and sentenced to seven years rigorous imprisonment and a fine of Rs. 250/. In default of payment of fine, he was further sentenced to rigorous imprisonment for six months. He has preferred this appeal.

According to the prosecution, Vazir Singh alias Pappi in conspiracy with his real brother Jai Bhagwan obtained the latter''s stengun and on April 5, 1984, at about 3.30 P.M. fired two shots hitting Roshan Lal (PW19). on the right forearm and left thigh when he was watering his fields and his brother Krishan Lal and his father Mohinder were working nearby in the same fields. The firing was done with the intention of killing Roshan Lal. Roshan Lal ran to save his life and he entered the Kotha of tubewell of Tyagis situated nearby. His father, brother and another brother Surinder along with some others came there on hearing the noise of the shots. Roshan Lal opened the doors of the Kotha and he was removed to the hospital. Dr. B.D. Chaudhary (PW1) sent ruqa to the police. The police went to the hospital and after ascertaining fitness of Roshan Lal recorded his statement on the basis of which present First Information Report was entered at P.S. Sadar, Sonepat.

According to the prosecution, the cause for the incident was that on January 17, 1988, another incident had taken place in which the present injured Roshan Lal, his father Mohinder and brother Surinder had been named as accused for causing injuries to Om Parkash, real brother of Vazir Singh, appellant, and some other members of his family. Case (sic) the appellant named Ram Chander is the real brother of Mohinder, father of the injured Roshan Lal. Thus, the appellant and the injured are first cousins.

The Investigating Officer could not inspect the spot as night had fallen. He, therefore, carried out the inspection on the morning of May 6, 1988. He took up two empty cartridge cases of 9 mm. from the field and a bloodstained wooden plank from the Kotha of Tyagis. No bloodstained earth could be recovered from the fields where Rosyhan Lal had been hit as a result of firing and he had started running. It may be mentioned here that the appellant as well as his brother Jai Bhagwan are employed in a Commandos Force stationed at Fatehabad. On the day of occurrence Jai Bhagwan was away in connection with temporary duty to C.I.A. Staff, Hissar, and the appellant was posted temporarily to Police Station Dabwali. In connection with official duy, Jai Bhagwan had been issued a stengun which remained with him from September 30, 1987 to April 11, 1988. The stengun which was issued to Jai Bhagwan was seized during investigation and it was forwarded in a sealed cover to the Ballistics Expert along with the empty cartridge cases recovered from the spot. The opinion of the Ballistics Expert was that the empty cartridge cases (Exhibits P5 and P6) had not been fired from that stengun. After the investigation the police presented a charge sheet against the appellant and his brother Jai Bhagwan, the latter for an offence under Section 120B read with Section 307 of the Indian Penal Code.

At the trial the prosecution examined Roshan Lal injured (PW 19), his father Mohinder Singh (PW21). Roshan Lal''s younger brother Krishan Lal, who was a student of sixth class and who was cited as an eyewitness, was given up as unnecessary. Dr. B.D. Chaudhary (PWI), Rajesh Kumar Kaushal, Ballistics Expert (PW8) besides the Investigating Officer and other formal witnesses were produced. The principal witnesses fully supported the prosecution case. The plea of the accused was one of denial.

The learned trial Court accepted the evidence of the prosecution insofar as the appellant is concerned. Jai Bhagwan was acquitted but the appellant was convicted and sentenced, as already stated.

The first contention of learned counsel for the appellant is that there was a conflict between the ocular testimony and testimony of the Ballistics Expert. According to the learned counsel, this was sufficient to render the ocular testimony open to doubt. In his statement (Ex. PV) made by the injured, it was stated that the appellant fired at him from a distance of 15/20 paces. The fire hit him on the right wrist. He started running in order to save his life. He was fired upon a second time. The bullet hit him on the left side of the hip and came out from the other side. Rajesh Kumar Kaushal, Senior Scientific Officer, Ballistics (PW8) stated in crossexamination that as Dr. B.D. Chaudhary had found blackening around injuries Nos. I and 2, the shots must have been fired from within a distance of 15 cms i.e. between 4 inches to 6 inches from the victim. In the M.L.R. (Exhibit PA) Dr. B.D. Chaudhary (PW1) while describing injury No. 1 on the right wrist and injury No 2 which is the wound of entry, noted that the edges of the wound showed blackening. In his further crossexamination he stated that he did not remember whether there was burning present in, or around the wound because it was not so noted in the M.L.R. if Dr. B.D. Chaudhary (PWI) had, in fact found any burning, there is no reason why he would not have mentioned the fact while describing the above injuries. So, a distinction has to be borne in mind between blackening and burning or charring around the wounds. There was blackening but not burning found in this case. Enough authority is available to show that where there is no burning found in or around the wound, the distance of firing cannot be a few inches as stated by Rajesh Kumar Kaushal (PW8). The distance must be about six feet. It was laid down in Santa Singh v. State of Punjab, AIR 1956 SC 526 that where there are burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches. In Partap Singh v. State of Uttar Pradesh AIR 1976 SC 966 it was held that there was blackening around all the wounds of entry which confirmed that the distance was within six feet of the assailant when he received those injuries.

In the facts of the present case, it has to be remembered that on being hit by the first shot Roshan Lal started running and it appears that he was followed by the appellant because Roshan Lal was hit again on the pelvic region from behind him. The estimate of distance from which Roshan Lal was fired upon must be, in the circumstances of the case, very broad and rough. Moreover, it is known and well recognised that illiterate villagers do not generally have a very precise idea of the distance. In the facts and circumstances of the case, the injured was hardly expected to have marked the precise distance from which he was shot at. The witnesses eye including the injured having given direct evidence of the crime and there being no doubt about the Identification, the question of distance loses much of its strength (see Karnail Singh and others v. The State of Punjab, AIR 1971 SC 2019. I shall have something more to say on this point while setting out the broad features of the case towards the end of this judgment. To conclude this point, I am of the view that the Expert was apparently mistaken in giving the opinion that of the blackening of the edges of the wound the distance of the fire must be a few inches. In fact, according to the well settled authorities when blackening is present but charring is absent, the distance would be 4 to 6 feet. My further conclusion is that the idea of distance mentioned by the injured in the statement made to the police as well as in the Court must be a very rough idea and the injured being an uneducated villager cannot be expected to give a very precise idea as to distance. For these reasons I find no force in the contention of the learned counsel.

The next contention of the learned counsel is that the incident did not take place in the fields. In support of this submission learned counsel referred to the fact that no bloodstained earth was recovered from the spot. Both the Patwari who prepared the site plan as well as the Photographer Ranbir Singh (PW9) did not find any part of the field having been irrigated. I find no merit in this contention. Roshan Lal was hit on the right wrist when he started running. He was hit again in the pelvic region and the bullet passed through and he took shelter in the Kotha of tubewell of Tyagis. The inspection of the spot was carried out by the police only on the following day. Some blood which might have fallen in the agricultural field must have been covered by dust. Blood was actually found on the wooden plank which was seized by the police from the Kotha where the injured ultimately fell down. The admission made by the Patwari and the Photographer in crossexamination that they did not notice any portion of the field having been irrigated does not render the prosecution case in the least doubtful. In considering the above admission made by the two witnesses, it has to be remembered that the admission relates to a fact which is only subsidiary. The Patwari had gone to prepare a site plan and the Photographer had gone to take the photographs of the scene of the crime. They had no occasion therefore nor did they write anywhere whether the field or any part of it had been irrigated or not. It has been repeatedly observed by the highest Court of the country that it is seldom that one comes across a witness who tells the whole truth. The admission, as already pointed out, relates to a peripheral matter. The prosecution stood to gain nothing by changing the place of occurrence and, therefore, there is no reason to suspect that the prosecution has laid the story at a place where it did not happen, For these reasons the aforesaid contention of the learned counsel is repelled.

The next contention of the learned counsel is that the appellant had been shown absent in the Roznamcha vide entry (Exhibit PO) at Police Station. Dabwali by tampering with the pages of the Roznamcha. In this connection, he invited my attention to the statement of Constable is Dewan Singh (PW 11) Towards the conclusion of his evidence the Court ordered that the original Roznamcha produced by the witness be kept in the Court. In spite of that direction, the witness took away the Roznamcha suggestedly to remove the lacuna brought out in crossexamination of the witness. The accused made application dated May 2, 1989 pointedly bringing the above fact to the notice of the Court on which the Court directed resummoning of the witness along with Roznamcha. The witness was further crossexamined on May 22, 1989. The Roznamcha had been placed on the record as pointed out by the trial Court towards the end of paragraph 34 of the judgment. I have carefully seen the Roznamcha in original especially keeping in view the lines on which Constable Dewan Singh (PW11) was crossexamined. I am of the view that the Roznamcha had not been tampered with and the entries made therein and relied on by prosecution are genuine. I have therefore, no difficulty in rejecting the above contention.

Lastly, it was contended that the stengun of Jai Bhagwan is alleged to have been used in the occurrence. The stengun was seized and got examined from the expert and a categorical opinion was given that the empty cartridge cases recovered from the spot had not fired from that stengun. It was also pointed out that the evidence on record shows that Jai Bhagwan had accompanied a police party for the protection of some terrorists in the Court of Judicial Magistrate Ist Class, Fatehabad and he remained on duty throughout the day on April 5, 1988 and he had carried his stengun with him. In other words the part the prosecution case that the stengun issued to Jai Bhagwan had been used by the appellant had been shown to be false. After carefully examining the evidence on record I find that the stengun issued to Jai Bhagwan was not used in the present crime. Observations to the contrary made in the judgment of the trial, Court are based on, conjectures. It is necessary to remember that involvement of Jai Bhagwan and of the stengun officially issued to him came about as a result of the information supplied by the appellant. It is quite possible that the appellant may have put the Investigating Officer on a wrong trail. Having some to the conclusion that the stengun of Jai Bhagwan had not been used in this crime, the net result is that the police was unable to recover the weapon of offence in this case. Nonrecovery of the weapon of offence, however, is not fatal to the prosecution case. The contention of the learned counsel is, therefore, found to be without merit.

The broad features of the present case may now be stated. The injured and the accused are first cousins. There is admitted enmity between the parties. The occurrence took place in broad day light. The firing at the injured was done from a very close range. There was, therefore, no difficulty in identification of the accused. If the incident had occurred in the darkness of the right, it could be said that the injured had falsely involved the appellant on account of previous enmity and on the basis of mere suspicion. That is not so in the present case. The First Information Report was lodged without any unnecessary delay and no attempt was made to rope in any innocent person by the injured. The medical evidence corroborated ocular testimony in that the weapon of offence according to the doctor was firearm. The injuries were round exactly as described by the injured. The injured was rushed to the hospital and he was still bleeding when he was examined by the doctor. This fixes the time of the occurrence as well. It is highly improbable and it may be safely taken that the injuries of this nature are not selfinflicted or selfsuffered. The nature of the offence is to be gathered on the totality of facts and circumstances of the case and it cannot be argued that simply because the injured did not suffer a fracture and the injuries were on nonvital parts of the body, the offence disclosed was not one under section 307 of the Indian Penal Code. In fact, a consideration of the facts and circumstances of the case clearly brings out the requisite intention on the part of the appellant (see Singh v. State of Punjab, 1986 Supreme Court Cases Crl. 119para 7).

Lastly it may be observed that what is required to sustain a conviction is proof beyond reasonable doubt. There is no such thing as conclusive proof for upholding conviction in criminal cases (see State of Kerala v. Bahuleyan, 1986 Supreme Court Cases (Crl)361 and State of Uttar Pradesh v. Ranjha Ram and ors., 1987(1) RCR(Crl.) 133 (SC) : 1986 Supreme Court Cases (Crl.) 374.

After careful consideration and for the reasons discussed above, I find no merit in the appeal which is dismissed.