Manoj alias Rahul vs State of Haryana

Anita Chaudhry, J.—The appellant was tried and convicted in FIR No. 43 dated 18.03.2005 registered at Police Station Murthal, Distt.

Sonepat. He was convicted by the Additional Sessions Judge Sonepat vide judgment of conviction and sentence dated 09.03.2006 and

11.03.2006 and awarded the following punishment:-

All the substantive sentences were ordered to run concurrently.

The police machinery was set into motion on the statement made by Anil Jain who was injured and was admitted in G.D. Sharma Hospital,

Sonepat. The occurrence took place at 5:00 P.M. on 17.03.2005 at the petrol pump. The complainant is a proprietor of Ajay Service Station at

village Ladsoli. He was sitting outside while his younger brother Sunil and one Ramesh Batra were sitting in the office. In the meantime, Manoj

came on a motorcycle and demanded rupees five lacs. The complainant stated that he did not have the money nor he would gave him upon which

Manoj fired at him which hit his right hand. Anil fell down and Manoj gave a blow on his head with the butt of the pistol. On hearing the noise,

Sunil and Ramesh Batra came out of the office and Manoj managed to escape on his motorcycle. Sunil was taken to G.D. Sharma, a private

Hospital at Sonepat. The police registered the FIR Ex. PC/1 at 12:20 P.M. on 18.03.2005 and arrested the accused from whom the pistol was

recovered. On completion of the investigation, a report was laid in the Court.

Charge was framed against accused under Sections 307, 386 IPC and Section 25 of the Arms Act, to which the accused pleaded not guilty and

claimed trial.

The prosecution had examined Dr. G.D. Sharma - PW1 who had noted the following injuries on the person of victim:-

Right thumb lacerated bones exposed tottoing and bleeding 4 x 6.5 cms.

Laceration front of right knee 2 x 2 cms.

Laceration 7 x 4 x 1 cm left eye outer aspect. Bleeding.

Laceration forehead 6 x 4 x 1 cm.

Vertex laceration 4 x 2 x 1 cm.

Left chest area of tottoing and shoot and left arm 20 x 20 cms.

Injury No. 1 was grievous while injuries No. 2 to 6 were simple in nature. Injury No. 1 & 6 caused by fire arm and remaining by blunt weapon.

During cross examination this witness admitted that ""I am not a blasstic expert to mention the distance from which distance the fire was shot. Pellets

or bullets were not recovered from the body of injured as there was nothing inside of this time.

Anil Jain - PW3 is the complainant who narrated the incident. He stated that he knew Manoj for the last 5 - 6 years and their relations were co-

ordial. He stated that Manoj came on a motorcycle without number plate and asked him to pay rupees five lacs and he replied that he did not have

the money nor he would give it to him, upon which the accused took out a pistol and fired at him with an intention to kill him and he raised his right

hand and he suffered an injury on his right hand and thereafter he gave a blow on his head with the butt of his pistol. He stated that his brother Sunil

and Ramesh Batra came out of the office on hearing the noise, on seeing them the accused fled away. He stated that he remained conscious

through out the treatment. He stated that the shot had been fired at him from the distance of about 4 feet.

Sunil Jain - PW4 who is real brother of the complainant supported the story of the prosecution. He stated that they heard a noise and came

outside and he had seen Manoj carrying a pistol and he fled away on seeing them. He stated that he shifted his brother to the hospital. He stated

that his brother had given the name of the accused to him. He stated that he had not made any phone call from the petrol pump to the police as his

priority was to shift his brother to the hospital. He stated that he had taken him to G.D. Sharma Hospital in Sector 14 which was close to his gas

agency. He stated that the police had come to the hospital in his presence but his brother was unfit to make statement.

Silak Ram, Reader to District Magistrate - PW7 had proved the sanction accorded by the District Magistrate.

Naveen Kumar, Constable - PW8 had deposed that the disclosure statement Ex. PH was given by the accused but no recovery was effected

pursuant to that disclosure.

Devender Kumar - PW11 had stated that the accused had given another disclosure statement Ex. PK and thereafter, he had led the police party

and had got the country made pistol recovered pursuant to the disclosure. He stated that the accused was in custody in another case relating to

Police Station Civil Line, Sonepat.

In his statement recorded u/s 313 Cr.P.C., the accused merely pleaded false implication and in his defence he has tendered document Ex. D1 to

Ex. D5.

The trial Court had convicted the appellant and had sentenced him to the punishment mentioned here-in-before.

I have heard the submissions made on behalf of both the sides and have perused the record carefully.

The learned counsel representing the appellant had submitted that there is a delay of 19 hours in lodging the FIR and injured Anil Jain was

conscious during treatment and no explanation has come as to why his statement could not be recorded and if Anil was not in a position to make a

statement then why Sunil could not make a statement. It was urged that the only independent witness Ramesh Batra has been given up and the

recovery is doubtful and the prosecution had projected two disclosure statements. It was contended that the shot was fired from a close range but

no pellets were recovered from the body. It was urged that there is no explanation as to why the injured was taken to a private hospital and not to

the Civil Hospital which falls on the way. It has been urged that PW4 has been introduced and the incident appears to be unnatural and no-one

would come in broad day light and demand Rs. 5,00,000/-. It was urged that the injury sustained by the complainant was stated to be grievous but

there is no basis as it does not fall u/s 320(i) of IPC. It was urged that it was improbable that a person who is known to the complainant would

come in broad day light and commit such an incident.

It was urged that the falsity of the allegation is apparent from the fact that on the next day, the brother of the complainant lodged another FIR

against the appellant making similar allegations. It was urged that a person would not go again to commit robbery and that trial had ended in

acquittal and there is no extortion nor any money was given and the appellant had already undergone imprisonment for 04 years and 10 months

and if the submissions do not find favour then he may be sentenced to the imprisonment already undergone. Reliance was placed upon Tej Ram

Vs. State of Punjab in Criminal Appeal No. 1303 of 1976 decided by this Court on 25th October, 1977.

On the other hand, the submissions made on behalf of the State were that the medical officer had stated that there was a fire arm injury and the

accused who is known to the complainant had demanded the money after putting him under threat. It was urged that the shirt worn by the

complainant was taken into possession by the police and was sent to the FSL and they had found lead on the shirt. It was urged that in a case u/s

307 IPC, it is not the injury which is relevant but it is the intention which is important & the accused intentionally caused injuries to the complainant

and the trial Court rightly convicted the accused.

As per the testimony of prosecution witnesses, the incident took place at 5:00 P.M. at the petrol pump of Anil Jain who is the proprietor. As

per the version given by him, his brother Sunil and one Ramesh Batra were sitting inside the office while he was outside. Appellant Manoj came on

a motorcycle and demanded Rs. 5,00,000/- from him. Anil refused to pay the demanded amount upon which the appellant fired a shot at the

complainant which hit on his right hand. Thereafter, Anil fell down and the appellant gave a butt blow with the pistol on his head. On hearing the

commotion, Sunil and Ramesh Batra came out. On seeing them the accused fled away. The prosecution had examined only Sunil who had

deposed that he had seen accused fleeing on his motorcycle along with the weapon of offence.

Anil was taken to G.D. Sharma Hospital from where a Ruka was sent to the police and the police arrived in the hospital and took the opinion

of the medical officer but Anil was unfit to make a statement and the police party returned. The police came to the hospital, the next day and after

the patient was declared fit, his statement was recorded and Anil gave a detailed account of the incident and also handed over the shirt to the

police party, which he was wearing at the time of the incident. The accused was arrested and he suffered a disclosure statement and got the pistol

recovered. The pistol was sent to the FSL, Madhuban for examination. The shirt was also sent for examination and lead was found on the shirt.

The medical officer who had examined Anil, had stated that injury Nos. 1 and 6 were fire arm injuries. The MLR had been proved by him. The

defence could not illicit any contradiction. The argument made on behalf of the accused was that some pallet would have been found in the body

had it been a case of firm arm injury. The seat of injury is the tip of the right thumb and I have the opinion of the Expert that injury No. 1 could only

be possible with a fire arm. There is no reason to discard the opinion given by the medical officer.

The shirt which was sent to the Forensic Science Laboratory revealed a hole and it had gun shot residues. It had also been reported that the

hole in the shirt was caused by a 315"" bullet fired from a country made pistol.

The pistol which was used in the crime, was also sent to the FSL for analysis and as per report Ex. PM, products of combustion of smokeless

powder were detected from the barrel of country made pistol. The firing mechanism was found to be in a working condition.

The appellant had urged that there was a delay in lodging the FIR and the story put forwarded by the prosecution was improbable as the

incident could not have occurred at the time when several people were around. As regards the delay is concerned, it has been properly explained.

Medical Ruka has been sent to the police and they had arrived in the hospital but the patient was not in a fit condition to make a statement. As

regards Sunil is concerned, he had come out only after hearing the shot. Therefore, the statement of Anil was to be first taken. As regards the

second case which was registered against the appellant, the trial Court had rightly observed that the witnesses had turned hostile and therefore, the

trial ended in acquittal but the verdict of that case does not help the appellant nor the incident can be said to be improbable. The appellant was

already known to the complainant. Therefore, there was no dispute regarding his identity. I find no infirmity in the findings recorded by the lower

Court. The order convicting the appellant is confirmed.

As regards the quantum of sentence, the injury was not on the vital part of the body. The appellant has already remained in custody for 04 years

and 10 months. Therefore, in the given circumstances, the sentence is reduced to the sentence already undergone. There will be no change in the

order with respect to the payment of fine. The order of sentence is modified and the appeal is disposed of, accordingly. Lower Courts record be

sent back after due compliance.