Rajbir vs State of Haryana

A.S. Anand and; M.K. Mukherjee, JJ.-The appellant has been convicted by the learned Judge of the Designated Court, Bhiwani for an offence under Section 307, Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs 50, 000, in default of payment of fine to further imprisonment for three years. He has also been convicted under Section 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA Act) and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs 1000 and in default to further imprisonment for one month. He has also been convicted for an offence under Section 6 of the TADA Act read with Section 27 of the Indian Arms Act and sentenced to suffer rigorous imprisonment for five years and to a fine of Rs 1000 and in default of payment of fine to undergo further imprisonment for one month. Substantive sentences for offences under Sections 3 and 6 of the TADA Act read with Section 27 of the Indian Arms Act were directed to run concurrently but the same were to run consecutively with the substantive sentence for the offence under Section 307 of the Indian Penal Code. A further direction was also given to the effect that fine, if recovered, shall be paid to the injured, as compensation. The appellant has challenged his conviction and sentence through this appeal under Section 19 of TADA Act

The prosecution case is that Shri Banarsi Das Gupta, a former Chief Minister of Haryana was the Chief Guest at a function held on 23-9-1990 on the occasion of the celebration of Maharaja Aggrasain Jayanti. The function was held in the area of new grain market at Bhiwani. While Shri Banarsi Das Gupta was seated on the stage on a sofa along with Shri Mool Chand Jain, a former Finance Minister of Haryana and Shri P.D. Makharia, an industrialist of Bhiwani, the appellant appeared from the left side of the stage holding a pistol in his right hand and on coming in front of Shri Banarsi Das Gupta, fired at him from a close range, injuring him on the right side of his chest. Ram Narain, PW 18 who was standing nearby rushed towards the appellant and caught him. Ram Roop, PW 19 who was also present nearby also caught the appellant and made him to fall on the ground. After the appellant was overpowered, the pistol was snatched from him by Pawan Kumar. On the arrival of the police within 15 minutes of the occurrence, the pistol was handed over to the police and the appellant was also taken into custody by Hukum Singh, Inspector

On receipt of the injury, Shri Banarsi Das Gupta fell into the lap of Shri P.D. Makharia. The injured was removed to the Civil Hospital, Bhiwani. After providing him medical aid, he was referred to the Medical College Hospital at Rohtak. The injured was medically examined and the medico-legal report Ex. P-B, indicating the injuries which were found on the person of Shri Banarsi Das Gupta, was filed in the Court. According to the medico-legal report, there was an entry and exit wound of the bullet on the right side of the chest with corresponding hole in the shirt Ex. P-1 and baniyan Ex. P-2. The injury was described by Dr K.D. Sharma as dangerous to life. Dr M.S. Shekhon, PW 4 Associate Professor of Surgery in the Medical College Hospital, Rohtak treated Shri Banarsi Das Gupta along with Dr Sanjay Narula, and Dr M.M. Lal. Dr Nalin Sharma, PW 21 who radiologically examined Shri Banarsi Das Gupta found fracture of the sixth and tenth ribs on the right side of his chest. The report of the Radiologist Ex. P-AA was filed in Court

The pistol seized from the appellant, which was the licensed pistol of the appellant, was sent along with the bullet Ex. P-60 and cartridges Ex. P-50 to P-58 recovered for the scene of occurrence, embedded in the sofa on which Shri Banarsi Das Gupta was sitting to the Ballistic Expert, Dr L.A. Kumar, PW 22, Deputy Director, Forensic Science Laboratory, Madhuban. After analysing the recovery cartridges and the bullet and the licensed pistol of the appellant. He opined that the cartridges and the bullet Ex. P-56 to P-58 and P-60 respectively had been fired from pistol Ex. P-4. The expert also found that there was a corresponding hole in the kurta Ex. P-1 and baniyan Ex. P-2. From the detailed report submitted by him, Ex. P-EE and P-EE1 and his testimony in the Court, it is conclusively established that the shot which caused the injury to PW 2 had been fired from the licensed pistol P-4 snatched from the appellant at the spot itself. The Ballistic Expert categorically stated in his statement that the bullet Ex. P-60 had been fired from the pistol Ex. P-4 and "not from any other firearm even of the same make and caliber"

The appellant in his statement under Section 313 CrPC denied the allegations and pleaded false implication. He examined DW 1 in his defence. The evidence of this witness does not in any way affect the prosecution version and it was rightly rejected by the trial court

Learned counsel for the appellant submitted that non-examination of Shri Mool Chand Jain and Shri Makharia who, according to the prosecution case, were present along with Shri Banarsi Das Gupta, PW 17 and sitting on the sofa has created a doubt on the correctness of the prosecution case. Learned counsel further stated that the non-examination of Pawan Kumar, who had snatched the pistol from the appellant was a serious infirmity in the prosecution case and therefore the conviction of the appellant could not be sustained. We cannot agree. It is elementary that the prosecution is not bound to call each and every witness of an occurrence irrespective of the consideration whether such witness is essential to the unfolding of the narrative on which the prosecution case is based. The prosecution has examined all material witnesses. PW 17 Shri Banarsi Das Gupta is the injured witness. PW 18 and PW 19 had caught hold of the appellant at the spot and handed him over to the police. PW 20 had deposed about the motive. The non-examination of Mool Chand Jain or P.D. Makharia, therefore does not in any way affect the correctness of the prosecution case

We have carefully gone through the evidence of PW 17 Shri Banarsi Das Gupta, PW 18 Ram Narain, PW 19 Ram Roop and PW 20 Swaran Singh. The material part of their evidence have also been extracted by the learned Judge of the Designated Court. All these witnesses have unfolded the prosecution case which has been noticed in the earlier part of this judgment. Their evidence inspires confidence. There was no reason for any of these witnesses to falsely implicate the appellant. In spite of the lengthy cross-examination, nothing has been elicited which may in any way create a doubt about their credibility. After a careful consideration of their evidence, an impression has been created in our minds that PWs 17 to 20 are witnesses of truth and their testimony does not suffer from any infirmity whatsoever. Moreover, the evidence of all these witnesses has been amply corroborated by the medical evidence, as also by the testimony of the Ballistic Expert, Dr L.A. Kumar, PW 22. The FIR in this case had been promptly lodged by Ram Narain PW 18 and it contained in detail the prosecution version. This circumstance further lends credence to the ocular evidence. After giving our careful consideration to the material on the record, we are satisfied that the prosecution has established the case against the appellant beyond all reasonable doubts. The non-examination of Pawan Kumar, who snatched the pistol P-4 from the appellant, in view of the evidence of PW 18, PW 19, PW 22 and the investigation officer is of no consequence

It is indeed disquietening that recourse to terrorist activities has been taken to settle political score by the barrel of the gun rather than through the power of the ballot. The appellant shot at a former Chief Minister of the State, in broad daylight, at a public function. His action was aimed at creating terror amongst the people. The offence committed by the appellant would, therefore, certainly fall within the definition of a "terrorist activity" within the meaning of Section 2(h) of the TADA Act punishable under Section 3 of the TADA Act. Keeping in view the weapon used by the appellant and the seat and nature of the injury, he has rightly been convicted for an offence under Section 307 IPC and Section 6 of TADA Act read with Section 27 of the Indian Arms Act also. We, therefore, uphold the conviction of the appellant for various offences for which he has been convicted by the Designated Court

We, however, find force in the submission of Shri Markandeya, that the sentence awarded by the learned Judge of the Designated Court is harsh and excessive and that there was no justification to make the sentence under Section 307 IPC to run consecutively with the sentence for offences under TADA and the Arms Act. In our opinion, it will meet the ends of justice, if the substantive sentence of 10 years'' RI for the offence under Section 307 IPC is maintained but the sentence of fine of Rs 50, 000 is reduced to Rs 2000. In default of the payment of fine, the appellant shall suffer further imprisonment for two months. The sentence imposed on the appellant for offences under Sections 3 and 6 of the TADA Act and Section 27 of the Indian Arms Act does not call for any interference and is maintained. The direction of the Designated Court that the concurrent sentence for offences under Sections 3 and 6 read with Section 27 of the Indian Arms Act should run consecutively with the sentence under Section 307 of IPC is not justified and appears to be harsh. We direct that the concurrent sentence for the offences under Sections 3 and 6 of the TADA Act read with Section 27 of the Indian Arms Act shall also run concurrently with the substantive sentence of 10 years'' RI imposed for the offence under Section 307 IPC. We are not satisfied that the direction for payment of the fine, if realised, to be paid to PW 17 by way of compensation is warranted. We set aside that direction10. With the aforesaid modification in the matter of sentence, the appeal is partly allowed.