Judgment:
A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 6-3-2002 passed by the learned Additional Sessions Judge, Gohad, Distt. Bhind, in Sessions Trial No. 243/98 convicting the appellant under Section 307 of IPC and thereby sentencing him to suffer seven years' Rigorous Imprisonment with a fine of Rs. 1,000/- and in default, further SI of three months, this appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973.
2. In brief, the case of the prosecution is that on 15-5-1997 Ravindra Kumar (hereinafter referred to as 'the injured') alongwith his brother Satish, Ramswaroop Sharma came in injured condition in the police station alongwith broken licencee mouser gun of Krishna Murari and lodged a report that today in the morning at 10 he was in his field. A canal was dug by the appellant in his field, as a result of which, his brother Satish, Ramswaroop and son Sunil told the appellant and his family members that why they have dug the canal in the field of the injured. On this point, altercation took place between them and it is said that appellant Jagdish carrying licencee mouser gun of his father, Sunil carrying gun of his father Ramkumar, Dinesh having mouser (Katta), Krishna Murari and Ramkumar having lathi with them came and rushed to beat them. In between the appellant with intention to kill the injured, his son Sunil, brother Satish and Ramswaroop caused two gunshots fire by the mouser gun. Fortunately, they were hair escaped, but later on third fire was also made by the appellant which hit at the right thigh of the injured. According to the prosecution, Rakesh S/o Nandlal and Girish s/o Jagdamba, who were in the Khalihan (granary), not only witnessed the incident, but they also intervened and saved the injured. It is also said that Ramswaroop, who is younger brother of the injured, caught hold the appellant and they also scuffled, as a result of which, the mouser gun which the appellant was carrying had broken. The injured by carrying broken mouser gun came to lodged the report.
3. On lodging of the First Information Report, a case under Sections 307, 147, 148, 149 of IPC as well under Section 29/30 of the Arms Act was registered against the appellant and the injured Ravindra was sent for his MLC report and treatment.
4. After the investigation was over, a charge-sheet was submitted in the Committal Court, which committed the case to the Court of Sessions and from where it was received by the Trial Court for its trial.
5. The learned Trial Judge on the basis of the allegations made in the charge-sheet framed charges punishable under Sections 148 and 307/149 of IPC against the appellant as well as against acquitted co-accused persons, namely Krishna Murari, Dinesh, Sunil and Ramkumar. Needless to say, all the accused persons including the appellant abjured their guilt and requested for trial.
6. In order to bring home the charges, the prosecution examined as many as 12 witnesses and placed Exh. P-l to Exh. P-7, the documents on record.
7. The defence of the appellant is that after taking leave for two days, he came to his village and was passing through a Government path on his tractor so as to reach his field. The injured already dug a canal and when he drove his tractor over the said canal, at that juncture, Jagdamba and Satish, who were having lathi and Luhangi, injured Ravindra by having Khaderua of the tractor having iron ring and a nail embedded in it, Ramswaroop, Girish and Rakesh carrying lathi came there and Jagdamba scolded that why the appellant has driven the tractor over the canal. On this, appellant told that the path is public path and this path is being used by him to approach his field. On this, all the six persons assaulted him. Jagdamba dealt Luhangi blow on the temporal and head region, as a result of which, blood started oozing, Satish dealt lathi blow which landed on the left forearm and injured Ravindra dealt Khaderua on his head, as a result of which, blood came out. His clothes were stained by the blood. Thereafter, Ramswaroop snatched the gun and threw it on the ground, as a result of which, by accident, fire took place and the bullet hit the leg of the injured. The incident had taken place in between the two fields. Thereafter, the broken gun was deposited by his father in between 5-5-1997 to 22-5-1997 in the office of the registered dealer. The further defence of the appellant is that Babbar and Rakesh assaulted him by kicks and fists and he was saved by his uncle and father. The appellant also lodged a report in the police station and a cross case was registered against complainant and other persons and appellant was sent for medical examination. This defence has also been taken by the appellant in his statement recorded under Section 313 of Cr.PC.
8. The learned Trial Judge on the basis of evidence placed or record came to hold that charges are not proved against other accused persons except the appellant, as a result of which, they were acquitted from all the charges. However, according to the learned Trial Court, the charge under Section 307 of IPC against the appellant has been found to be proved, as a result of which, he has been convicted for the said offence and has been directed to suffer imprisonment, which I have mentioned hereinabove.
9. In this manner, this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence.
10. I have heard Shri M. Kulshrestha, learned Counsel for the appellant, and Shri M.P.S. Bhadoriya, learned Public Prosecutor for the respondent/State. Having heard the learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
11. On going through the evidence of injured Ravindra Kumar (P. W. 4), this Court finds that in cross-examination Para 4, he has specifically stated that there is a path in between the two fields and the said path was not of accused persons only, but was being used by other villagers also. Thus, the defence which the appellant has taken that in between the two fields, there is a public path and he was passing through that path on his tractor is proved from the evidence of injured. In Para 1 of the examination-in-chief, the injured has admitted that during the scuffle with his brother Ramswaroop and accused persons, appellant-Jagdish fell down and the gun was broken. The broken gun was uplifted by Pappu and gave it to this witness which he carried with him to the police station. Hence, this defence of appellant is also proved that during the scuffling the gun was broken. In cross-examination, the injured has admitted that he received only single gunshot injury on his leg and the injury was through and through. In Para 10 of his cross-examination, the injured has further admitted that on the date of incident appellant Jagdish also lodged a report against him and his family members and a case is pending against him and his family members, but he has denied that appellant was beaten and he sustained six injuries.
12. The scuffling which took place between the appellant and complainant party has also been admitted by Jagdamba (P.W. 1) and similarly Girish (P.W. 3) has also stated that during the course of scuffling with appellant, butt of the mouser gun was broken. This witness in Para 8 has admitted that appellant was caught hold by his uncle and thereafter further he has admitted that his uncle threw the appellant on the ground. Hence, it can be inferred that he was beaten by the injured and other members of the complainant party and the defence of appellant appears to be probable. This witness has also admitted that a case of Marpeet is pending against this witness as well as his uncle Satish, injured Ravindra Kumar, Ramswaroop, and his father Jagdamba as well against his servant Rakesh.
13. The factum of quarrel took place in between the parties has also been admitted by another witness Ramswaroop (P.W. 6). Further, he has admitted that a case is pending against him and other persons and similar type of the statement is of Sunil (P.W. 7), Rakesh (P.W. 8) and Satish (P.W. 10).
14. On going through the evidence of Dr. S.S. Rana (P.W. 11), this Court finds that a gunshot injury has been found on the thigh region of the injured. The injured was referred for radiological examination, but the X-ray report has not been proved. It has been stated by Dr. S.S. Rana that after going through X-ray plate, the nature of injury could be opined, but the X-ray report has not been proved by examining the radiologist. In absence of the evidence of radiologist the nature of the injury sustained by the injured cannot be ascertained and it cannot be inferred that there was any bony injury. The injured in his testimony has also not stated that he sustained any fracture. The un-exhibited X-ray report is on record and in that no bony injury has been shown, perhaps for this reason the radiologist was not examined by the prosecution.
15. In cross-examination, Dr. Rana has admitted that on the date of examination of injured Ravindra Kumar, he also examined appellant Jagdish, who sustained following injuries on his person:
(1) Lacerated wound 4 cm x 1 cm x bone deep over right side of skull, fronto parietal region.
(2) Swelling and punctured wound 1/2 cm x 1/2 cm x bone deep over left side of skull. The wound was surrounded by swelling 3 cm x 3 cm.
(3) Swelling 4 cm x 5 cm over left forearm, advised for X-ray.
(4) Swelling 6 cm x 4 cm over left leg.
(5) Swelling 5 cm x 3 cm over left thigh.
(6) Swelling 3 cm x 2 cm over left arm.
The injury Nos. 1,3, 4,5 and 6 were caused by hard and blunt object and injury No. 2 was caused by pointed object. Injury No. 6 was found to be simple in nature while the nature of other injuries could be ascertained only after examining X-ray. According to the doctor, the injuries were caused within six hours. The doctor has also proved the MLC report of the appellant (Exh. D-9) which was exhibited in the cross case as Exh. P-3. On going through injury No. 2, this Court finds that it was caused by pointed object. Hence, here again the defence of appellant appears to be probable that by Khaderua in which a pin was embedded he was beaten by the injured and the defence which appellant took is corroborated by medical evidence also.
16. In the present case, it appears that there was a free fight between the parties, and therefore, it is difficult to hold that which party was the aggressor. So far as the role assigned to the appellant is concerned, it is stated that he caused single gunshot fire on the person of the injured, but at the same time, since all the prosecution witnesses, who were present at the spot, are admitting that the gun, which the appellant was carrying, was broken on account of scuffle which took place between appellant and complainant side, hence, it can be inferred that during snatching of the gun, accidentally fire took place and this is also the defence of the appellant. In absence of any report of the radiologist, it is not proved that any body injury was received by the injured. Looking to the injuries sustained by the appellant, as he sustained six injuries including the bone deep injury on the parietal region, I am of the view that the complainant party was the aggressor. Since it has come in the evidence of all the eye-witnesses including the evidence of injured that scuffling took place between the appellant and the complainant side in which the appellant was also thrown on the ground and the gun was snatched from him and it was broken during the course of scuffling, therefore, it can be inferred that the complainant party caused injuries to the appellant. In this view of the matter, I am of the view that it cannot be said that appellant has committed the offence under Section 307 of IPC.
17. Resultantly, this appeal succeeds and the same is hereby allowed. The judgment of conviction and order of sentence passed by the learned Trial Court convicting the appellant under Section 307 of IPC is hereby set aside. The appellant is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to him.