Din Dayal vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Additional Sessions Judge (II), Bhiwani in Sessions Case No. 73 of 1997 (Sessions Trial No. 144 of 1997) dated 24.9.1998.

The appellants have been prosecuted for the offences under Sections 307 and 324 read with Section 34 I.P.C. and also under the provisions of the Arms Act.

According to the case of the prosecution, the complainant Ramesh Kumar was a carpenter by profession and he was working at the house of one Manga Master (Teacher) on 12.2.1997. At about 9.45/10 A.M. he returned to his house to take some tools. When the complainant just entered his house, he heard the alarm from the house of Din Dayal, accused No. 1. Then he went to his house and saw all the accused beating his paternal aunt. Accused 2 to 4 were armed with lathis while the 1st accused Din Dayal was having a pistol in his hand. When Raj Kumar accused No. 2 tried to give a lathi blow to his aunt, the complainant snatched the same from his hand. Thereafter, Din Dayal (A1) fired from his pistol and the bullet hit the complainant below the elbow of his arm and got through. Meanwhile, Kuldip and Arun reached the spot and when they tried to rescue the complainant the accused Rattan Lal (A3) gave a lathi blow on the forehead of the complainant. Thereafter, all the four accused escaped from the spot. The complainant and his aunt Santosh were taken to the General Hospital where they were treated. According to the complainant, the motive for the occurrence is that Raj Kumar (A2) served a bottle of liquor to the complainant and his companions. After consuming that liquor, one Billu died and the others who consumed the liquor were saved after medical aid. Raj Kumar was facing trial in that case and the accused were pressurising him to resile from his statement and on that account the accused were picking up quarrels with the complainant and members of his family. On the basis of the medical report sent by the Hospital Authorities, the case was registered against the accused and after completion of the investigation, the challan was filed in against the accused.

Since the offence under Section 307 is exclusively triable by the Court of Sessions, the case has been committed to the Sessions. The learned Additional Sessions Judge framed charges against the accused for the offences punishable under Sections 307 and 323 read with Section 34 I.P.C. The accused Din Dayal was also chargesheeted for the offence punishable under the Arms Act. All the accused pleaded not guilty to the said charges.

In order to prove the guilt of the accused, the prosecution examined 12 witnesses besides marking certain documents. After closure of the evidence of the prosecution, the accused were examined under Section 313 Cr.P.C. wherein they refuted all the allegations and pleaded their false implication at the instance of the complainant party being inimical to them.

On a consideration of the evidence on record, the learned Additional Judge (II), Bhiwani convicted the accused Din Dayal for the offence under Section 307 I.P.C. and also all the accused for the offence under Section 323 read with Section 34 I.P.C. Din Dayal (A1) was also convicted for the offence under Sections 27, 54 and 59 of the Arms Act. Din Dayal (A1) was sentenced to undergo rigorous imprisonment for a period of 8 years for the offence under Section 307 I.P.C. and to pay a fine of Rs. 500/. A1 was also sentenced to undergo rigorous imprisonment for a period of three years and pay a fine of Rs. 200/ for the commission of the offences punishable under the Arms Act. All other accused were released on probation to maintain good conduct on furnishing personal bond in the sum of Rs. 10,000/ each with one surety in the like sum each.

Aggrieved by the said conviction and sentences imposed by the learned Additional Sessions Judge, the accused preferred this appeal.

Accused No. 1 is the father and accused 2 and 3 are his sons. According to the complainant, who has been examined as PW9 on 12.2.1997 he went to the house of one Manga Master for attending some carpentry work. At about 9.45/10 A.M. he came to his house since he had forgotten (to take) his tools with him. When he was entering his house, he heard alarm from the house of Din Dayal accused. When he went there, he saw the accused beating his father''s sister Santosh and the accused Din Dayal was having a pistol in his hand and when Raj Kumar tried to give a lathi blow to his aunt (Santosh), he snatched the lathi from his hand. Thereupon, Din Dayal (A1) fired from his pistol at him and the bullet hit his arm below the elbow and got through. He raised alarm. On hearing his alarm, Kuldeep and Arun reached the spot and when they tried to rescue him, accused Rattan gave a lathi blow on his head. Thereafter, the accused escaped from the spot. This evidence of PW9 is amply corroborated by PW10 who is the paternal aunt of PW9. She also deposed that Din Dayal told her to make her nephews understand why they used to harass him. then she asked Din Dayal why he used to abuse on petty matters. Then Din Dayal asked the other accused to beat her, whereupon Mahesh (A4) gave a lathi blow on her face. Then she fell down. Thereafter, Raj Kumar (A2) gave two lathi blows to her when she was lying on the ground. She further stated that she received injuries on her hand and on her hip joint. When she raised alarm, the complainant who is her nephew, reached the spot. When Raj Kumar tried to give her a lathi blow, the complainant snatched his lathi. Thereafter, Din Dayal fired from his pistol at PW9 and the bullet hit Ramesh (PW9) on his hand.

The prosecution also examined another eyewitness as PW11. He deposed that he saw the accused giving the lathi blow to Ramesh (PW9) and the lathi blow inflicted on the head of Ramesh. He further deposed that the police recovered a pistol from the possession of accused Din Dayal. The medical evidence fully corroborates the oral evidence of PW9 and PW10.

PW3 is the Medical Officer, who treated Santosh (PW10). According to him, he treated Santosh from 13.2.1997 to 23.2.1997. PW4 treated PW9. According to him, he found the following injuries on the person of PW9 :

There was a lacerated wound 4.5 cm x 1 cm muscle deep present over left side of forehead 8 cms below to left eye brow. Fresh blood was present. He advised Xray and Surgeon''s opinion for it.

There was a lacerated wound 1 cm x .5 cm present over left forearm 6 cms below to elbow anteriorly and it was muscle deep.

There was a lacerated wound 1 cm x .5 cm present over left forearm 8 cms below to elbow posteriorly. Tattooing was present all round the wound and it was muscle deep. I advised Xray and OrthoSurgeon''s opinion.

According to him, injury No. 1 was caused by blunt weapon and injuries 2 and 3 were possible to be caused by a fire arm. He further stated that all the three injuries were simple in nature. He also deposed that he examined PW10 (Santosh) on the same day and he found the following injuries on her person :

There was a lacerated wound 1 cm x .5 cm muscle deep present over back at sacral region. Fresh blood was present. He advised Xray and Ortho Surgeon''s opinion for it.

There was a contusion 2 cms x 1 cm present over left hand at first metacarpo phalangeal joint.

There was an abrasion 3 x cms 2 cms present over right maxillary region.

According to him, injuries found on Santosh (PW10) were simple in nature.

The evidence of Investigating Officer shows that the fire arm was recovered from the possession of Din Dayal accused.

The evidence on record also shows that one of the sons of A1 namely Raj Kumar was facing trial as one Billu died after consuming liquor served by Raj Kumar and all others including Din Dayal who also consumed liquor were saved after medical aid. Thus, in that case the complainant was a witness. According to PW9 and PW10, Din Dayal was pressurizing the complainant to resile from his earlier statement and not to give evidence against Raj Kumar (A2) in that criminal case.

According to the evidence on record, the complainant Ramesh came to the house of the accused Din Dayal on hearing the noise. It was only Santosh who has been taken to the house of the accused by them. From the facts on record, it cannot be said that the accused intended to kill the complainant. Therefore, no offence under Section 307 I.P.C. is made out. But the fact, remains that the 1st accused Din Dayal fired from his pistol at the complainant Ramesh on his left forearm below the elbow. It cannot be said that the 1st accused fired at the complainant with an intention or knowledge to cause the death of the complainant. I am, therefore, of the opinion that the 1st appellant is guilty of the offence under Section 324 I.P.C. Offence under Section 324 I.P.C. is punishable with imprisonment of either description of a term which may extend to three years or with fine or with both. Accordingly, I convert the conviction of the 1st accused from Section 307 to that of Section 324 I.P.C. The other accused have not been convicted for the offence under Section 307 I.P.C. with the aid of Section 34 I.P.C. Since the injuries caused by the other appellants are simple in nature, the learned Additional Sessions Judge rightly convicted them for the offence under Section 323 read with Section 34 I.P.C. and released them on probation. There is no appeal by the State against the order releasing the appellant Nos. 2 to 4 on probation. Accordingly, the order of the learned Additional Sessions Judge releasing the accusedappellnat Nos. 2 to 4 on probation is hereby confirmed.

The accusedappellant No. 1 has been sentenced to undergo rigorous imprisonment for a period of 8 years for the offence under Section 307 I.P.C. and also for a period of 3 years for the offence under the Arms Act. Since his conviction is converted to one under Section 324 I.P.C., I am of the opinion that the sentence imposed on him by the learned Additional Sessions Judge can be reduced to the period already undergone as admittedly he has already undergone imprisonment for more than 11/2 years and also taking into account the age of the 1st appellant.

The appeal is, accordingly, allowed in part with the following modifications :

(i) The conviction of the appellant Nos. 2 to 4 for the offence under Section 323 read with Section 342 I.P.C. and their release on probation are hereby confirmed.

(ii) The conviction of the 1st appellant Din Dayal is converted to an offence under Section 324 I.P.C. and the sentence of imprisonment imposed on him is reduced to the period already undergone by him and he shall pay a fine of Rs. 5,000/ including the fine already imposed on him by the learned Additional Sessions Judge.

(iii) The amount of fine, if recovered, shall be paid to the complainant as compensation.