Punjab-Haryana High Court
Aditya @ Katia And Others vs State Of Haryana on 19 May, 2015
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA, AT CHANDIGARH
----
Date of Decision: May 19, 2015
Criminal Appeal-D-553-DB of 2012
Aditya @ Kala @ Katia and others --- Appellants
Versus
State of Haryana ---Respondent
AND
Criminal Appeal-D-552-DB of 2012
Sonu Bhatti --- Appellant
Versus
State of Haryana ---Respondent
AND
Criminal Appeal-D-22-DB of 2013
Sandeep @ Lahri --- Appellant
Versus
State of Haryana ---Respondent
CORAM: HON'BLE MR. JUSTICE T.P.S. MANN.
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
----
Present: Shri Vinod Ghai, Senior Advocate with Shri Simrandeep Singh
Sandhu, Advocate for appellants-Dinesh, Sunil and Sandeep @
Lahri.
Shri R.S. Rai, Senior Advocate with Shri Johan
Kumar, Advocate for appellant-Sonu Bhati.
Dr. Deipa Singh, Advocate for appellant-Manoj.
Shri Randhir Singh, Additional Advocate General, Haryana for
the respondent-State.
1. Whether Reporters of local papers may be allowed to see the Judgment? Yes/No
2. To be referred to the Reporter or not? Yes/No
3. Whether the judgment should be reported in the Digest? Yes/No
----
MAHAVIR S. CHAUHAN, J.
Criminal Appeal-D-553-DB of 2012, Aditya @ Kala @ Katia and others versus State of Haryana, Criminal Appeal-D-552-DB of 2012, Sonu Bhati versus State of Haryana and Criminal Appeal-D-22-DB of 2013, VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 2 Sandeep@ Lahri versus State of Haryana are proposed to be disposed of by this common judgment being passed in Criminal Appeal-D-553-DB of 2012, Aditya @ Kala @ Katia and others versus State of Haryana because these involve common questions of fact and law and have arisen from judgment of conviction dated May 05, 2012/order on sentence dated May 09, 2012 and judgment of conviction dated December 05, 2012/order on sentence dated December 07, 2012 whereby court of learned Additional Sessions Judge, Faridabad (here-in-after referred to as "the trial court") has convicted and sentenced the appellants as under:
Sr. Name Offence Sentence (RI) Fine In default of
No (Rs.) payment of
fine (RI)
01. Sonu Bhati, Sunil, S. 307, Life 50,000/- One year
Manoj, Aditya, Dinesh IPC imprisonment
& Sandeep
02. Sonu Bhati, Sunil, S. 332, 03 years 25,000/- Six months
Manoj, Aditya, Dinesh IPC
& Sandeep
03. Sonu Bhati, Sunil, S. 07 years 25,000/- Six months
Manoj, Aditya, Dinesh 225/120
& Sandeep B, IPC
04. Sonu Bhati, Sunil, S. 25, 01 year 5,000/- One month
Manoj, and Sandeep Arms
Act
All the substantive sentences have been ordered to run concurrently.
02. Chronology of events constituting the prosecution story indicates that on September 20, 2008 appellant Aditya, who was lodged in District Jail, Mathura, was brought to Faridabad and was produced before the Courts of a Judicial Magistrate and Additional Chief Judicial Magistrate there in criminal cases under Section 25 of the Arms Act, 1959 (for short 'the Act) by Constable Jawahar Singh (PW2), Constable Shiv Singh (cited as a VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 3 witness of prosecution but given up) and Sub Inspector Onkar Singh (PW3). 10-12 boys, including Aditya's brothers-Manoj and Dinesh, and their friends named Anup, Sulli (presumably Sunil), Chhiley (also called Rakesh), Khadde, Ombir, Sonu Bhati, Devender Biju and Jagga came to the Court complex to see Aditya who whispered something in the ear of his brother Manoj. The conversation, however, was not audible. After hearing in the Court cases was over, the police officials hired an auto rickshaw and alongwith Aditya proceeded towards Ballabgarh. On seeing a hotel with the name of Ambika Hotel, a little before Bus Stand of Ballabgarh, Aditya asked to have meals therein. The police officials and Aditya took meals there. The afore-mentioned 10-12 boys all of a sudden descended on the scene and attacked the police personnel after encircling them. Four or five of them were armed with country made pistols and mousers and one of them, with an intention to kill SI Onkar Singh, fired upon him. The shot injured SI Onkar Singh's right shoulder. The assailants also hit Constable Jawahar Singh and Shiv Singh with the country made pistols and attempted to free Aditya from police custody. Aditya also gave pushes to the police officials and attempted to escape from police custody. In view of the commotion that followed and a crowd having converged on the scene, the assailants made good their escape carrying their respective weapons along. However, two mobile phones, one magazine of mouser, one cartridge of a . 315" bore pistol, shoulder (badge) of uniform of SI Onkar Singh were left behind on the spot of occurrence. ASI Jai Kishan (PW7) (here-in-after referred to as 'the Investigating Officer') on receipt of information of the happening, reached Ambika Hotel where Constable Jawahar Singh narrated the sequence of events before him in the form of statement, Exhibit PB, VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 4 based whereupon a formal First Information Report ('FIR' for short), Exhibit PA, was recorded by ASI Hazari Lal (PW1). The injured PWs Constable Jawahar Singh and Constable Shiv Singh were shifted to General Hospital, Ballabgarh and SI Onkar Singh to Escorts Hospital and Research Centre, Faridabad.
03. Dr. Ramesh Chander (PW6) medico-legally examined Constable Jawahar Singh vide medico legal report (for short, 'MLR'), Exhibit PJ, and Constable Shiv Singh vide MLR, Exhibit PK, and found on the person of Constable Jawahar Singh and Constable Shiv Singh one blunt weapon injury, each, which were referred to B.K. Hospital for radiological examination. According to him, the injured were brought to the hospital by Police Control Room vehicle with history of receipt of injuries at Ambika Hotel, Ballabgarh. He, however, could not say if the injuries were simple in nature.
04. Dr. Satish Chaku (PW9) medico-legally examined SI Onkar Singh vide MLR, Exhibit PQ/2, and found on his body one fire-arm injury-a roughly elliptical wound over LT infraclavicular region, 2.25x1 cm in size, with inward margins and bleeding present, medial to mid clavicular line, 10 cms lateral to sternalnotch having surgical emphysema with patechae present around it, four blunt weapon lacerated wounds and one blunt weapon reddish abrasion and advised radiological examination of skull, cervical spine, CT Scan of head and Ultra Sound of abdomen. Dr. Prabal Roy (PW21), vide his opinion, Exhibit P14, declared injury No. 1 on the person of SI Onkar Singh as dangerous to life and other injuries as simple in nature.
05. Investigating Officer drew a visual site plan (Exhibit PN) of the VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 5 place of occurrence, took in police possession two mobile phones, one magazine containing three live cartridges of 7.65 mm mouser, one live cartridge of .315" bore pistol and torn shoulder (badge) of Uttar Pradesh Police uniform (Exhibits P2 to P6), arrested Aditya and Dinesh. SI Shri Kishan (PW19) arrested Rakesh on September 22, 2008. Inspector Nand Ram arrested Pawan Bansi and Mahesh on September 24, 2008. SI Ravinder Kumar (PW14) arrested Sandeep, Sunil and Manoj on October 09, 2008. Other accused were also arrested.
06. During investigation, appellants suffered statements under Section 27 of the Indian Evidence Act, 1872 ('Evidence Act' for short) and pursuant thereto Sunil got recovered a .315" bore country-made pistol (Exhibit P3), Manoj-a mouser (Exhibit P5), Sonu Bhati- a .315" bore country-made pistol (Exhibit P6), and Sandeep- a .315" bore country-made pistol (Exhibit P1). No such recoveries could be effected from Aditya and Dinesh. ASI Tek Chand (PW13) and as per his reports, Exhibits PW, PX and PY, found two country made pistols and one mouser (sent to him for examination) to be in working condition.
07. Magazine containing three 7.65 mm live cartridges (marked M/1), a misfired .315" bore cartridge (marked MC/1), a shoulder badge and blood stained earth lifted from the spot, one .315" fired bullet (Mark BC/1) and one country made pistol (marked W/1) along with one fired .315" bore cartridge marked C/1) recovered from Sunil were sent to Forensic Science Laboratory, Haryana, Madhuban (for short 'FSL') from where a report, Exhibit P12, was received which recorded the following conclusions:
"1. The country made pistol marked W/1 (chambered for .315" cartridges) is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 6 order.
2. .315" fired cartridge case marked as C/1 and .315"
fired bullet marked BC/1 have been fired from country made pistol marked W/1 and not from any other firearm even of same make and bore/caliber, because every firearm has got its own individual characteristics marks.
3. .315" misfired cartridge marked MC/1 has missed fire from country made pistol W/1.
4. The hole on the shirt contained in parcel No.VII has been caused by a bullet projectile which could be of . 315" caliber, fired from close distance i.e. within tattooing range.
5. The magazine marked M/1 contained in parcel No. I was found to be pistol magazine for 7.65 mm cartridges and was found to be of a country made pistol.
6. ... ... ... ... ... ... ..."
08. After investigation was complete, a report in terms of sub-section (2) of Section 173 of the Code of Criminal Procedure, 1973 (for short 'the Code') was presented before the learned Area Magistrate and after committal of the case to the Court of Session, learned trial court appraised the report and its enclosures besides hearing the prosecution and the defence and found a prima facie case punishable under Sections 120, 332, 307, 225 of the Indian Penal Code, 1860 ('IPC' for short) against all the accused (including the appellants and Ombir, Anup, Vijay, Sanjay, Joginder, Amarpal @ Bansi, Rakesh @ Chilley, Pawan and Mahesh), Section 216, IPC, against Pawan, Amarpal @ Bansi, and Mahesh and Section 25, Arms Act against Manoj, Sandeep, Sunil and Sonu Bhati and charged them accordingly.
09. Accused pleaded not guilty to the charge and claimed to be tried.
10. During trial, prosecution examined Constable Jawahar Singh (PW2) and SI Onkar Singh (PW3) to bring on record oral account of the VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 7 happening, Dr. Ramesh Chander (PW6), Dr. Dinesh Chaku (PW9), Dr. Prabal Roy (PW21) and Dr. Sumit Kumar (PW28) to bring on record medical evidence and ASI Hazari Lal (PW1), Inspector Nand Ram (PW4), Constable Narender Singh (PW5), ASI Jai Kishan (PW7), ASI Mahender Kumar (PW8), EHC Vijay Kumar (PW10), Constable Shamsher Singh (PW11), ASI Satbir Singh (PW12), ASI Tek Chand (PW13), SI Ravinder Kumar (PW14), Bijender Singh (PW15), Constable Gurdeep Singh (PW16), ASI Mohammad Rafiq (PW17), HC Amar Singh (PW18), SI Shri Kishan (PW19), HC Sharwan Kumar (PW20), ASI Rajbir Singh (PW22), Vishal Gaurav (PW23), Constable Satish Kumar (PW24), Constable Deepak (PW25), Anuj Bhatia (PW26), and Surajbhan (PW27) to highlight various phases and facets of investigation and allied circumstances.
11. After evidence of the prosecution was complete, appellant Sandeep aka Lahri absented from the proceedings and was declared a proclaimed offender. Remaining accused were examined under Section 313 of the Code wherein they denied all the inculpating circumstances appearing against them in the evidence of the prosecution and reiterated plea of their innocence and false implication but did not lead any evidence in their defence.
12. Learned trial court, on hearing the prosecution and the defence, came to the conclusion that prosecution was not able to prove the charge against Ombir, Anup, Vijay, Sanjay, Joginder, Amarpal, Rakesh, Pawan and Mahesh and, accordingly, acquitted them but having reached a conclusion that charge against Aditya, Sonu Bhati, Manoj, Sunil and Dinesh stood proved, convicted and sentenced them vide judgment dated May 05, 2012/order dated May 09, 2012, as here-in-before stated. Appellant Sandeep VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 8 @ Lahri, on being brought before it, was examined by the learned trial court under Section 313 of the Code. He also denied all the inculpating circumstances appearing against him in the evidence of the prosecution and reiterated plea of his innocence and false implication but did not lead any evidence in his defence and ultimately, after hearing the prosecution and the defence, was convicted and sentenced vide judgment dated December 05, 2012/order dated December 07, 2012 as per details given in the beginning of this judgment.
13. We have heard learned counsel for the parties and have also examined the record requisitioned from the learned trial court.
14. Learned counsel appearing for the appellants have slammed the impugned judgments/orders primarily on the following grounds:
i. Prosecution has failed to decipher what conspiracy, if any, was hatched by the appellants and the learned trial court has reached a conclusion as regards conspiracy on the basis of its imagination and fancy in so far as it has been specifically stated by Constable Jawahar Singh (PW2) and SI Onkar Singh (PW3) that they could not make out what was whispered by Aditya in the ear of Manoj;
ii. Pws Constable Jawahar Singh and SI Onkar Singh have not even named Sunil and Sandeep and have made improvements over their initial statements by adding that someone had thrown chilli powder in their eyes;
iii. Aditya is not shown to have played any role as regards murderous attack on SI Onkar Singh (PW3);
still, he has been substantively convicted and sentenced for the offence punishable under Section 307, IPC;
iv. On the person of SI Onkar Singh only one firearm injury has been noted by the doctor (Dr. Dinesh Chaku- PW9), still all the appellants have been convicted for the offence punishable under Section 307, IPC;
v. PWs Constable Jawahar Singh and SI Onkar Singh did not attribute the bullet injury to Manoj in their initial statements, Exhibit PB and Exhibit DA, respectively, and VIRENDRA SINGH ADHIKARI he has been attributed the firearm injury by SI Onkar 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 9 Singh for the first time while appearing as a witness before the learned trial court and this part of his statement is liable to be ignored being an improvement;
vi. FSL report, Exhibit P12, demolishes the prosecution story because as against the specific case of the prosecution that the firearm injury on the person of SI Onkar Singh was caused by using a mouser (which, according to prosecution story, was held by Manoj) forensic expert, in report, Exhibit P12, has given opinion that .315" fired cartridge case marked as C/1 and .315"
fired bullet marked BC/1, recovered from the spot of occurrence have been fired from country made pistol marked W/1 and not from any other firearm even of same make and bore/caliber: .315" misfired cartridge marked MC/1 has missed fire from country made pistol W/1; hole on the shirt which SI Onkar Singh (PW3) wore at the time of the occurrence, has been caused by a bullet projectile which could be of .315" caliber, fired from close distance i.e. within tattooing range; and the magazine marked M/1 was found to be pistol magazine for 7.65 mm cartridges and was found to be of a country made pistol; and vii. Prosecution has failed to establish for what offence Aditya was charged and held in custody at Mathura.
15. Learned State counsel, on the contrary, has defended the impugned judgments/orders and has argued that PWs Constable Jawahar Singh and SI Onkar Singh have been unequivocal to say that the appellants and their accomplices reached the Court complex under a well thought conspiracy and executed it by attempting to rescue Aditya from police custody and that it was someone from amongst the appellants who had fired upon SI Onkar Singh with an intention to kill him and whatever is stated by them has been corroborated by FSL report, Exhibit P12, as also medical evidence. Mention of name of Manoj by SI Onkar Singh as author of firearm injury on his person is liable to be ignored being outcome of the confusion that prevailed there on the spot at the time of occurrence. It has also been argued on behalf of the respondent-State that all the appellants VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 10 actively participated in the occurrence and have been rightly convicted and sentenced by the learned trial court.
16. No other or further point has been urged on either side.
17. At the very outset we may point out that in the statement, Exhibit PB, of the complainant-Constable Jawahar Singh-on the basis whereof FIR, Exhibit PA, was recorded, though it is stated that Dinesh was one of the ten- twelve persons who came to the Court complex and Ambika Hotel but he is not shown to have played any role, whatsoever. Constable Jawahar Singh while appearing as PW2 before the learned trial court has added name of Dinesh as one of the persons who had fired upon the police party. He, however, has not been able to specify any injury attributable to said Dinesh. Similarly, SI Onkar Singh (PW3) after referring to Dinesh as one of the ten- twelve persons has attributed no role to him except for saying that after someone had thrown chilli powder in his eyes and Manoj had fired upon him, he had caught hold of Dinesh but when he had fallen on the ground said Dinesh escaped from his hold. No weapon has been recovered from him. These circumstances perforce make us to believe that Dinesh has been falsely implicated and deserves an acquittal. Therefore, in the succeeding paragraphs reference to appellants would mean a reference to all the convicts of this case minus Dinesh.
18. A conspiracy, as is well known, is not hatched in the open. By its very nature, it is secretly planned. Direct evidence of a conspiracy is seldom available. Therefore, lack of direct evidence relating to conspiracy has no consequence and it can be proved even by circumstantial evidence. Further, to constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 11 condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. It is not necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. Existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. The circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. In the instant case ten-twelve persons riding motor cycles/car(s) armed with deadly weapons like country-made pistols and a mouser stormed the Court complex on the day fixed for appearance of Aditya and when they met him, Aditya whispered something in the ear of his brother Manoj. Thereafter, Aditya asked the police officials escorting him to stay at a roadside hotel/restaurant called Ambika Hotel. All the aforesaid persons reached that very hotel and attempted to rescue Aditya from police custody by using the firearms they were carrying. From these circumstances the only and irresistible inference that can be drawn is that all the aforesaid persons came to the Court complex with a predetermined object of freeing Aditya from police custody and on meeting them Aditya told them to come to Ambika Hotel to execute the illegal act in pursuance of the conspiracy otherwise how those persons could know that Aditya and the police officials would stay at that hotel to take meals. The illegal act to be executed in pursuance of the conspiracy was the rescue of Aditya from police custody. It has come in the evidence of PWs Constable Jawahar Singh and SI Onkar Singh that the appellants and their accomplices did attempt to free Aditya from police custody and Aditya also attempted to flee VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 12 from custody. From the circumstances enumerated here-in-before, it is clearly established that the appellants, namely Manoj, Sunil, and Sonu Bhati attempted at freeing Aditya and Aditya, himself, also attempted to flee from police custody in execution of the conspiracy hatched by them. Leave apart bringing evidence to establish participation of Sandeep in the attempt to free Aditya from police custody, the only two witnesses of occurrence, namely Constable Jawahar Singh (PW2) and SI Onkar Singh (PW3) have not even named him. In view of the circumstances as here-in-before enumerated, conviction of Sandeep under Section 225 read with Section 120-B, IPC, deserves to be set aside while that of Aditya, Manoj, Sunil and Sonu Bhati deserves to be maintained. We, nevertheless, are of the view that sentence awarded to the appellants under these provisions is not proper and deserves to be appropriately reduced. For this purpose it is necessary to refer to Section 225, IPC. It reads as under:
"225. Resistance or obstruction to lawful apprehension of another person.--Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained for an offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; or, if the person to be apprehended, or the person rescued or attempted to be rescued, is charged with or liable to be apprehended for an offence punishable with imprisonment for life or imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; or, if the person to be apprehended, or the person attempted to be rescued, is charged with or liable to be apprehended for an offence punishable with death, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; or, if the person to be apprehended or rescued, or attempted to be rescued, is liable under the sentence of a Court of VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 Justice, or by virtue of a commutation of such a I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 13 sentence, to imprisonment for life or imprisonment, for a term of ten years or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; or, if the person to be apprehended or rescued, or attempted to be rescued, is under sentence of death, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine."
19. As rightly pointed out by learned counsel for the appellants, prosecution has failed to bring on record any material to show that Aditya was apprehended or charged in a case warranting imprisonment for life or imprisonment for a term which may extend to ten years or extreme penalty of death or was liable under the sentence of a Court of Justice, or by virtue of a commutation of such a sentence, to imprisonment for life or imprisonment, for a term of ten years or upwards or was under sentence of death. Therefore, appellants are liable to be punished under first part of Section 225, IPC.
20. In the FIR, Exhibit PA, and as per depositions of PWs Constable Jawahar Singh and SI Onkar Singh consistent case of the prosecution has been that the appellants and their accomplices voluntarily caused hurts to the afore-stated two PWs and Constable Shiv Singh. Dr. Ramesh Chander (PW6), who medico-legally examined Constable Jawahar Singh vide MLR, Exhibit PJ, and Constable Shiv Singh vide MLR, Exhibit PK, found on the person of Constable Jawahar Singh and Constable Shiv Singh one blunt weapon injury, each, and according to Dr. Satish Chaku (PW9), who medico-legally examined SI Onkar Singh vide MLR, Exhibit PQ/2, on his body was present one fire-arm injury a roughly elliptical wound over LT infraclavicular region, 2.25x1 cm in size, with inward margins and bleeding present, medial to mid clavicular line, 10 cms lateral to sternalnotch having VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 14 surgical emphysema with patechae present around it, four blunt weapon lacerated wounds and one blunt weapon reddish abrasion and Dr. Prabal Roy (PW21) , vide his opinion, Exhibit P14, declared injury No. 1 on the person of SI Onkar Singh as dangerous to life and other injuries as simple in nature. However, appellant Aditya is not shown to have caused hurt to any member of the police party. It has remained undisputed that the injured PWs were public servants and were on duty when the occurrence took place.
21. Four of the appellants, namely Sandeep, Sunil, Sonu Bhati and Manoj got recovered .315" bore country made pistols, Exhibits P1, P3, P6, and a mouser, Exhibit P5, pursuant to their disclosure statements, Exhibits PS, PT, PV, and PU, respectively. According to prosecution story, two shots were fired by one of the assailants. Though it is stated by SI Onkar Singh (PW3) that he was given the only firearm injury on his shoulder by Manoj but it evidently is an improvement over his statement, Exhibit DA, made by him before the Investigating Officer besides being contrary to what is stated in FIR, Exhibit PA, and deposition of Constable Jawahar Singh (PW2). The gaffe, in our well thought view, has been caused by the fact that the attack took the police party by surprise and statement of SI Onkar Singh was recorded by the learned trial court after more than a year of the occurrence. FSL report, Exhibit P12, has cleared the air. In fact, the only 'dangerous to life' injury on the person of SI Onkar Singh (PW3), indisputably, was caused by Sunil by a .315" bore country made pistol as is evident from the FSL Report, Exhibit P12 according to which the .315" fired cartridge case marked as C/1 and .315" fired bullet marked BC/1, recovered from the spot of occurrence had been fired from country made pistol marked W/1 (which was recovered at the instance of Sunil) and not from any other firearm even VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 15 of same make and bore/caliber; .315" misfired cartridge marked MC/1 had also missed fire from country made pistol W/1; and the hole on the shirt which SI Onkar Singh (PW3) wore at the time of the occurrence, had been caused by a bullet projectile which could be of .315" caliber fired from close distance i.e. within tattooing range. It may be hastily added here that one 'dangerous to life' injury could not be authored by more than one person and the FSL report, Exhibit P12, also rules out participation of anyone else than appellant Sunil as regards authorship of this injury. Therefore, conviction of Manoj, Sonu Bhati, Aditya and Sandeep under Section 307, IPC, must go.
22. In view of the facts and circumstances of the case more particularly the fact that the only 'dangerous to life' injury was on the shoulder of SI Onkar Singh, which is a non-vital part of the body, sentence of imprisonment for life awarded to Sunil under Section 307, IPC, is found to be on the higher side and deserves to be appropriately scaled down.
23. As a consequence of our foregoing discussion, we accept the appeal of Dinesh, set aside his conviction and sentence and acquit him of the offences of which he was charged and convicted. His bail bonds are discharged. Amount of fine, if already deposited, shall be refunded to him.
24. Aditya, Manoj, Sonu Bhati and Sandeep are acquitted of the offence punishable under Section 307, IPC but conviction of Sunil under this Section is maintained. However, sentence awarded to him is reduced to rigorous imprisonment for five years. Sentence of fine and default clause, however, are maintained.
25. Sandeep is acquitted of the offence punishable Section 225 read with Section 120-B, IPC. While maintaining conviction of Aditya, Manoj, VIRENDRA SINGH ADHIKARI 2015.05.25 15:12 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA-D-553 & 552-DB of 2012 & 22-DB of 2013 16 Sunil and Sonu Bhati under these Sections their sentence is reduced to rigorous imprisonment for two years but sentence as regards fine and default clause are maintained.
26. While acquitting Aditya and Sandeep, conviction of Manoj, Sunil and Sonu Bhati under Section 332, IPC, is maintained but sentence awarded to them is reduced to rigorous imprisonment for two years and their sentence as regards fine and default clause are maintained.
27. Conviction and sentence of Sandeep, Manoj, Sonu Bhati and Sunil under Section 25 of the Arms Act are maintained.
28. Half of the amount of fine, if and when recovered, shall be paid to SI Onkar Singh as compensation.
29. The appeals are disposed of in the terms aforesaid.
[T.P.S.Mann] [Mahavir S. Chauhan]
Judge Judge
May 19, 2015
adhikari
VIRENDRA SINGH ADHIKARI
2015.05.25 15:12
I attest to the accuracy and
authenticity of this document
High Court Chandigarh