@JUDGMENTTAG-ORDER
B.N.P. Singh, J.@mdashThough the Appellant was prosecuted for the charges punishable under Sections 307, and 337/34 of the Indian Penal Code (IPC), along with Section 27 of the Arms Act, he suffered conviction only u/s 307 IPC on exoneration of the rest charges and was sentenced to suffer rigorous imprisonment for a term of four years on that count.
2. Factual matrix-the prosecution was launched on behest of Rameshwar Pandit (P.W. 5), on accusation that though the Appellant had been torturing him since past it was on 10th April, 1988, that he made abortive attempt to break open the door of his house and on his failure, pelted brick bats causing injury to Pachiya Devi and after the Appellant took recourse to firing, Ramdeo Pandit (P.W. 1) suffered pellet injury on palm of his right hand. After the Police was set in motion on these accusations investigation commenced in course of which the Investigating Officer recorded statement of the witnesses u/s 161 of the Code of Criminal Procedure, visited the place of occurrence, got the injured clinically examined by the doctor, seized empty shells of cartridges from the place of occurrence and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial, the State examined altogether nine witnesses including two injured, the Police Officer and also a compounder, who placed the injury report (Exhibit 3 series) on record and also host of other witnesses, who stated to be conversant with the facts of the incident and the trial Court on appreciation of evidences placed on record, while acquitted the Appellant of the charges u/s 337/34 IPC and also Section 27 of the Arms Act, rendered verdict of guilt finding the Appellant guilty u/s 307 IPC and sentenced him in the manner stated above.
3. Volume of arguments were sought to be urged by the learned Counsel for the Appellant to assail the finding recorded by the Court below, and it is urged that taking the prosecution case to be true on its face value, which is not admitted by the Appellant, no other witness except Ramdeo Pandit (P.W.1) claimed identification of the Appellant as the person, who took recourse to firing causing pellet injury to him and on these premises it is urged that in the backdrop of single identification, it was quite hazardous to place reliance on his testimony to draw conclusion about the Appellant to be the assailant of the injured.
4. Contentions were raised that though other injured claimed to have identified the Appellant in the flash light of torch since it was a dark night, it was most unlikely that the Appellant would be identified as if the flash light was focused pointedly at him with the aim of identification and the limb of the argument pressed into service on behalf of the Appellant was that the prosecution was launched against Appellant in the year 1988 and since the Appellant has suffered ordeal of protracted prosecution for about 14 years, a lenient view be taken by the Court while awarding sentence on him and it would be hard and unjust for the Appellant to suffer imprisonment after efflux of 14 years. Learned Counsel for the State and also the informant have sought to support the findings recorded by the trial Court.
5. Though a lot of witnesses were examined at trial by the State, admittedly none of them barring Ramdeo Pandit (P.W.1) claimed identification of the Appellant as the assailant, who took recourse to firing causing pellet injury on the palm of his right hand. Though it was a case of single identification, since the Appellant was not stranger or outsider, his identification in the flash light of the torch, could not be suspected. Though the doctor was not examined at trial, the injury report was placed on the record with the aid of the compounder, who was a formal witness. However, this fact cannot be lost sight of that the doctor was dead, and rightly the trial Court drew conclusion that as the injury report, which was entry or memorandum made by a person, in the ordinary course of business, or in discharge of professional duty, the same was admissible u/s 32 of the Indian Evidence Act. The findings recorded by the doctor would show pellet injury on the palm of right hand of the injured which was with tune of the prosecution version. The other witnesses examined by the State stated to have known the name of the assailant from Ramdeo Pandit and though attention of some of the witnesses had been drawn by the defence towards the early version rendered by these witnesses, the Police Officer was not confronted with those statements. Chandrama Singh (P.W. 9) who happens to be I.O. stated to have noticed signs of violence at the place of occurrence. He stated to have noticed debris of tiles and other brick bats in the Court yard of the house. The Police Officer stated to have seized empty shells of cartridges from the place of occurrence and all these objective findings recorded by the Police Officer would amply corroborate the basic factum of prosecution case about violence having been taken recourse to by the Appellant.
6. However, certain aspects of the case cannot be lost sight of. There was no allegation about the Appellant repeating the blow with fire arm and that apart the injuries found on the person of Ramdeo Pandit (P.W. 1) were of the dimension of 1/4" x 1/4" x skin deep with pellet embedded, which was extracted from the wound, and on these premises, it is urged by the learned Counsel for the Appellant that the regard being had to the nature of injury suffered by P.W. 1, the Appellant cannot be saddled with the allegation of taking recourse to firing causing injury, which intended to cause death of the victim. It is urged that even the injuries on the finger of the palm cannot be considered to be on a vital organ of the body to draw a conclusion about the intent of the assailant for taking recourse to firing with an intention to cause death of the injured.
7. It is brought to my notice that the Appellant has remained in custody both as under-trial prisoner and also during the post-conviction period for about a month, and in that view of the matter and also regard being had to the facts that the Appellant has suffered ordeal of protracted prosecution for about 14 years and also other attending circumstances, the conviction of the Appellant is converted into one u/s 324 IPC and he is sentenced to the period already undergone and, in addition to that, he is sentenced to pay a fine of Rs. 800/- (eight hundred), in default of which he would suffer rigorous imprisonment for five months and with this modification in the order of conviction and sentence, this appeal is dismissed. The amount of fine must be deposited within two months from the date of receipt of a copy of this order which shall be payable to the injured or his successor in case the former is not alive.
