@JUDGMENTTAG-ORDER
S.P. Kurdukar, J.@mdashThis Criminal Appeal is filed by the appellants (accused) challenging the legality and correctness of the order of
conviction and sentence dated 12-4-1989 in Sessions Case No. 77 of 1986 passed by the Designated Court u/s 307/34 of the Indian Penal Code
and also Section 27 of the Arms Act and Section 6(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (for short ''TADA'').
2. The prosecution case may be briefly summarised as under:
On 7-7-1986 at about 7.00 a.m., Rajinder (PW5) and his uncle Kishan Lal (PW 6) were coming out of the house of the latter in order to go to
their fields. When they came out of the house, they noticed Jai Kishan (A-2) was armed with a gun and standing by the side of Panchayat Ghar.
Rai Singh (A-3) was standing there with a 12 bore pistol. Bhagirath (A-1) was standing behind the bitora with a DBBL gun near the Panchayat
Ghar. It is alleged by the prosecution that they gave lalkara to Rajinder (PW 5) and Kishan Lal (PW 6) to stop and they would teach a lesson for
filing the criminal appeal against them. Immediately, thereafter all the accused stretched their weapons towards Rajinder (PW 5) and Kishan Lal
(PW 6). They raised a shout whereupon Partap came out of his house. At that time, Jai Kishan (A-2) fired from his gun a shot hitting Rajinder
(PW 5) on the front side of his right shoulder. Bhagirath (A-1) fired a shot from his gun at Kishan Lal (PW 6) hitting him on his right thigh. Rai
Singh (A-3) also fired from his pistol. Due to gun shot injuries, Rajinder (PW 5) and Kishan Lal (PW 6) fell down in front of the door. Partap
raised a raula upon which all the three accused fled away to their houses with their weapons. Partap also fired two shots in the air from the gun of
Rajinder (PW5) with a view to save the injured persons from further assault. The injured were then taken to Fatehabad hospital for medical
treatment. A ruqqa Ex.PC was sent to the Police Station alongwith copies of M.L.Rs at about 10.00 a.m. Inspector Jai Narain, SHO (PW 8)
attached to Fatehabad Police Station reached the hospital and after obtaining the opinion of Dr. R.S. Bishnoi (PW 1) about the condition of the
injured persons recorded the statement of Rajinder (Ex.PH). Jai Narain, SHO (PW 8) forwarded the said statement to the Police Station on which
formal FIR Ex. PH/1 was recorded in Police Station, Fatehabad. Statement of Kishan Lal (PW 6) was also recorded. Jai Narain, SHO (PW 8)
then recorded the statements of various persons and seized the blood stain clothes of the injured. On 10-7-1986, Bhagirath (A-1) was arrested
and the licenced DBBL gun (Ex.P5) was recovered from his possession with two live cartridges. His arms licence (Ex.P4) was also recovered.
After completing the necessary investigation, a charge sheet was submitted against all the appellants for offences punishable u/s 307 read with
Section 34 of the Indian Penal Code and u/s 25 of the Arms Act and also u/s 6(1) of TADA. The Designated Court found that a prima facie case
was made out against the appellants u/s 307/34 IPC and u/s 25 of the Arms Act and also u/s 6(1) of TADA.
3. The appellants denied the charge and claimed that they are innocent and they have been falsely implicated in the present case. They further
stated that the complainant party bore a grudge and enmity against them and, therefore, they have been falsely implicated in the present crime.
They prayed that they be acquitted.
4. The prosecution mainly relied upon the evidence of two injured persons, namely, Rajinder (PW 5) and Kishan Lal (PW 6) in addition to the
evidence of Dr. R.S. Bishnoi (PW 1) who issued the injury certificates in respect of injures to these two injured persons.
5. The trial court after examining the materials on record and after careful perusal of the evidence of Rajinder (PW 5) and Kishan Lal (PW 6)
found the appellants guilty of offences for which they were put up for trial. The Designated Court vide its impugned judgment found Jai Kishan (A-
2) guilty of offence punishable u/s 307 IPC. Bhagirath (A-1) and Rai Singh (A-3) were held guilty for an offence punishable u/s 307/34 IPC for
causing injuries to Rajinder. Bhagirath (A-1) was also held guilty and convicted u/s 307 IPC alongwith Jai Kishan (A-2) and Rai Singh (A-3) for
offences punishable u/s 307/34 IPC for causing injures to Kishan lal (PW 6). Additionally Bhagirath (A-1) was also held guilty for an offence
punishable u/s 27 of the Arms Act read with Section 6(1) of the TADA. Consistent with these findings, the Designated Court awarded seven
years'' rigorous imprisonment to all the appellants u/s 307/34 of the Indian Penal Code for causing injuries to Rajinder (PW 5) and Kishan Lal
(PW 6). Bhagirath (A-1) was sentenced to undergo rigorous imprisonment for two years u/s 27 of the Arms Act read with Section 6(1) of the
TADA. All the substantive sentences were ordered to run concurrently. It is this order of conviction and sentence which is the subject matter of
challenge in this criminal appeal.
6. Mr. R.L. Kohli, learned Senior Counsel appearing in support of this appeal urged that the evidence of Rajinder (PW 5) and Kishan Lal (PW 6)
is totally unreliable. It was contended that both these witnesses bore an enmity against the appellants and, therefore, they have been falsely
implicated in the present crime. It was submitted that Rai Singh (A-3) and Jai Kishan (A-2) were earlier tried for the offence of murder of Ram
Kumar, father of Rajinder (PW 5) and ultimately both of them were acquitted by the High Court. Against this order of acquittal, Rajinder (PW 5)
has filed the appeal in this Court which was pending at the time of the incident. It is because of this enmity, Rajinder (PW 5) and Kishan Lal (PW
6) have falsely implicated the appellants in the present crime.
7. After going through the evidence of Rajinder (PW 5) and Kishan Lal (PW 6), we find that their evidence is trustworthy and cannot be rejected
on the ground put forth on behalf of the appellants. It is true that Jai Kishan (A-2) and Rai Singh (A-3) were tried for the offence of murder of Ram
Kumar - father of Rajinder (PW 5) but that by itself could not be sufficient ground in the present case to disbelieve the evidence of these two
injured witnesses. In a case of this nature, all that is required is to scrutinise the evidence of such witnesses very carefully. Motive is a double edged
weapon. It is also well settled that when prosecution relies upon the evidence of the eye witnesses to prove the incident, motive assumes a
secondary role. In the present case, the testimony of eye witnesses is found acceptable and, therefore, adequacy of motive is not relevant. In our
considered view, the motive sought to be relied upon by the appellants in no way affects the credibility of the injured witnesses. We, therefore, see
no substance in the first contention.
8. It was then urged on behalf of the appellants that the manner in which the incident of firing was alleged by the prosecution is totally imaginary and
having regard to the distance and the spot of firing, it was inconceivable that the injures of this nature could be caused. It was contended on behalf
of the appellants that according to both the injured witnesses, Bhagirath (A-1) was standing behind the bitora from where he fired through DBBL
gun. The prosecution evidence further shows that Bhagirath (A-1) fired from the height of 5''. If firing is done from that angle and range, counsel
urged that it would be impossible to cause the injury in question. This submission again does not appeal to us because Rajinder (PW 5) and Kishan
Lal (PW 6) have given necessary details how all the three accused stretched their guns and fired at them which caused injuries on their persons. It
cannot be forgotten that the incident in question took place at about 7.00 a.m. in the month of July, 1986 when there was sufficient day light to
identify the accused. Dr. R.S. Bishnoi (PW 1) has also testified that the injuries on Rajinder (PW 5) and Kishan Lal (PW 6) were fire arm injuries.
There is nothing in the evidence of Dr. R.S. Bishnoi (PW 1) to discard the evidence of both these injured witnesses, namely, Rajinder (PW 5) and
Kishan lal (PW 6).
9. It may also be stated that the FIR in the present case was lodged at the earliest opportunity without any loss of time and in the said FIR the
names of all the three appellants (accused) were mentioned with reference to specific role and the place from where they used the fire arm. The
First Information Report in all material particulars corroborates the evidence of Rajinder (PW 5).
10. It was then urged that the prosecution has come out with a story, that Partap had fired twice and, therefore, the probability of injures having
been caused to Rajinder (PW 5) and Kishan Lal (PW 6) cannot be ruled out. This submission again is devoid of any merits because when Partap
came out of his house and saw his uncle and brother were being the target of firing, he opened the fire in the air to scare away the appellants, The
trial court accepted the prosecution story in this behalf and in the facts and circumstances of the case, we do not see any reason to take a different
view of the said evidence.
11. Lastly, it was urged on behalf of the appellants that having regard to the injuries sustained by Rajinder (PW 5) and Kishan Lal (PW 6), the
sentence awarded to each of the appellant is totally disproportionate. We do not see any substance in this contention. The appellants fired through
their guns at Rajinder and Kishan Lal and it was their fortune that pellets did not hit on the vital part of the body. It is clear from the evidence on
record that the appellants did attempt to commit the murder of Rajinder (PW 6) and Kishan Lal (PW 6). If this be so, in our opinion, this is not a
case where any leniency in respect of the sentences is called for.
12. In the result, the appeal fails and the same is dismissed. The appellants, who are on bail, shall surrender to their bailbonds forthwith to serve out
the remainder of sentences.
