Crl.Appeal No.91-B of 2005 v. State of Haryana

(in Criminal Appeal No.91-SB of 2005) Mr.K.S.Malik, Advocate for appellant-Sandeep (In Criminal Appeal No. 121-SB of 2005 Mr.H.S.Benniwal,Deputy Advocate General Haryana ** Crl.Appeal No.91-B of 2005 Sabina, J. 2 Vide this order, the above-mentioned two criminal appeals are being disposed of by a common order as they have arisen out of common judgment dated 6.12.2004 passed by the Additional Sessions Judge, (Fast Track Court) Bhiwani. Appellants-Balkar and Sandeep, were tried for an offence under Sections 307/120-B/34 of the Indian Penal Code (`IPC' for short) and under Section 25 of the Arms Act (for short `the Act') . Vide judgment dated 6.12.2004, appellants were convicted for an offence under Section 307 IPC read with Section 34 IPC by the Additional Sessions Judge (Fast Track Court) Bhiwani. Vide order of even date, appellants were ordered to undergo sentence of rigorous imprisonment for seven years each under Section 307 read with Section 34 IPC and to pay a fine of Rs.2000/- each. In default of payment of fine, appellants were further ordered to undergo rigorous imprisonment for six months each. Hence, the present appeals by the appellants. The brief facts of the case, as noticed by the learned Additional Sessions Judge, in paras 2 and 3 of the impugned order, reads as under:- “2. Succinctly stated the case of prosecution is that on 4.3.2003 Banwari Lal ASI/SHO of Police Station City, Dadri received telephonic message in the police station to the effect that firing incident had taken place at Dadri Golden Transport, Dadri. Upon this information he alongwith other police officials went to Dadri Golden Transport where complainant Lakhmi Chand met him and made his statement. Lakhmi Chand stated that on that day i.e. Crl.Appeal No.91-B of 2005 3

4.3.2003 at about 7.15 a.m., he alongwith his brother Harbilas, Rajinder Sharma son of Rameshwar resident of village Misri, their truck driver and Het Ram resident of Kaliawas District Hisar, Gunman of his brother Harbilas, were present in front of the godown and were warming theirselves by lighting a fire. He further alleged that in the meanwhile two youths came there armed with pistols. One of the youth was in the age group of 20- 25 years, with little beard, medium built and was wearing kurta pajama while the other was wearing pants and shirt and wrapping a shawl of black colour and was of fair complexion, in the age group of 20-25 years. He further alleged that the youth, who was wrapping black shawl, fired a shot at his brother Harbilas and the shot hit on fingers of both hands of Harbilas and thereafter, both the youths ran away. He further alleged that gunman Het Ram chased them and fired two shorts in the air but both the youths managed to escape. He further averred that his son Rajesh arrived at the spot and took his brother Harbilas to the hospital and that both the youths had fired at Harbilas in order to kill him. He further stated that the motive for the occurrence was that Krishan alias Kala resident of Dubaldhan had demanded ransom from his brother Harbilas and a case was registered on that account and it was possible that Krishan alias Kala had sent the assailants to kill his brother.

3. After recording the statement of the complainant, a case under Section 307/120-B/34 IPC and 25/54/59 of Arms Act was registered with Police Station City Dadri. Investigatin was carried Crl.Appeal No.91-B of 2005 4 out. Site plan of the scene of occurrence was prepared. Accused Sandeep was arrested on 27.9.2003 while accused Balkar was arrested on 30.10.2003. Accused Karan Singh was arrested but lateron declared proclaimed offender. On completion of investigation report under Section 173 Cr.P.C. was submitted in the Court of learned Illaqa Magistrate. After supplying the copies of challan to the accused the case was committed to the Court of Sessions” I have heard the learned counsel for the appellant-Sandeep and the learned State counsel and have gone through the record of the case available on the file carefully. As per the prosecution case, PW2 Harbilas and PW1 Lakhmi Chand were present in the Transport company of Harbilas on 4.3.2003 at about 7.00 a.m. In the meantime, the appellants came at the spot armed with revolvers. Appellant-Balkar Singh fired a shot at Harbilas. Gunman Het Ram fired a shot in defence and the appellants fled away from the spot. The ocular version, as given by PW1 Lakhmi Chand and PW2 Harbilas, is duly corroborated by the medical evidence. PW5 Dr.Ishwar Singh medico legally examined injured Harbilas on 4.3.2003 and found the following injuries on his person:- “1. A oval shape with inverted margins lacerated wound on the plamer aspect of left hand just at the base of the little finger and ring finger. A opposite wound size 3.5 m x 2 c.m. on the dorsal aspect of proximal phalnx of left ring finger. Bullet was lodged in the wound. Fresh bleeding was present. Bullet was removed and sealed at three places and handed over to police. X-ray and Crl.Appeal No.91-B of 2005 5 surgeon's opinion was advised.

2. A lacerated size 1.5 c.m.x 1 c.m. bone deep on the dorsal aspect of proximal phalnx left middle finger. Fresh bleeding was present. X-ray was advised.

3. The right ring finger is separated at the joint of middle and terminal phalnx only adherent with the small tag of skin. Fresh bleeding was present. X-ray was advised” As per the said witness, injury No.1 was a result of gunshot. So far as motive for causing injuries on the person of PW2 is concerned, PW1 Laxmi Chand deposed that Krishan alias Kala, who was a companion of the appellant, had threatened Harbilas and due to this reason, his brother had got registered a case against said Krishan. However, PW1, in his cross-examination, has deposed that he was not threatened by anybody to prepare to the incident. Thus, although motive is not duly proved in this case but motive loses its significance, in the facts and circumstances of the present case, as the eye witnesses have supported the prosecution version to the effect that both the appellants had came to the spot armed with the revolvers and appellant Balkar Singh had fired a shot at Harbilas. Apparently, the appellants fled away from the spot as gunman Het Ram had fired in self- defence. A perusal of the custody certificate of the appellants placed on record reveals that the appellants have also been convicted in FIR No.188 dated 19.9.2003 under Sections 148/149/353/307/506 IPC and are undergoing the sentence in the said case. It appears that the appellants are habitual offenders. Hence, no ground for reduction of sentence is also made Crl.Appeal No.91-B of 2005 6 out in the facts and circumstances of the present case. Keeping in view the seriousness of the offence committed by the appellants, no ground is also made out for ordering the sentence in FIR No. 188 dated 19.9.2003 and the present FIR to run concurrently. Accordingly, both the appeals stand dismissed. March 04,2010 (Sabina) Judge