- (1.) PRAFULLA C. Pant, J. This criminal appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred as Cr. P. C), is directed against the judgment and order dated 16th July, 1990, passed by learned 1st Additional Sessions Judge, Dehradun, in Sessions Trial No. 96 of 1986, whereby appellant Dr. (Major ). Ramesh has been convicted under Section 307 of the Indian Penal Code, 1860 (for brevity hereinafter referred as I. P. C.) and sentenced to undergo rigorous imprisonment for a period of three years and also to pay fine of Rs. 5,000/-, in default of payment of which, the convict was directed to undergo simple imprisonment of one year.
(2.) HEARD teamed Counsel for the parties and perused the entire record. Prosecution story, in brief, is that P. W. 1 Mohan Singh is real brother of injured Kishan Singh (P. W, 2 ). Suman Lata (D. W. 2) is sister of Mohan Singh and Kishan Singh. All the three are residents of Dehradun Road, Rishikesh. Accused appellant Dr. (Major) Ramesh had friendly relations earlier with father of the above three, but later, it is alleged by prosecution that Dr. (Major) Ramesh developed illicit relations with Suman Lata. This soured relations between Mohan Singh and Kishan Singh, on one hand, and Dr. (Major) Ramesh, on the other. On 23. 04. 1986, at about 10:30 p. m. , when Mohan Singh and Kishan Singh were returning from one Sakiani Ji's house. Dr. (Major) Ramesh (appellant) and his three associates namely, Sanjay Sharma, Ajay Kumar and Mahesh Srivastava, met the two brothers and started hurling abuses at them. In the quarrel Dr. (Major) Ramesh took out his revolver and fired twice at Kishan Singh. Consequently, Kishan Singh got injured. However, one shot missed the target. P. W. 1 Mohan Singh lodged the First Information Report (Ext. A-1) with police station Rishikesh, at about 11:10 p. m. , and took the injured to Doon Hospital, Dehradun, for treatment. A Crime No. 117 of 1986 was registered at the police station Rishikesh, against the accused Dr. (Major) Ramesh and three others, relating to offence punishable under Section 307/326 read with Section 34 of I. P. C. After interrogation of the witnesses, and collecting evidence, a charge-sheet was filed by the Investigating Officer against the accused-persons, namely Dr. (Major) Ramesh (appellant), Sanjay Sharma, Ajay Kumar and Mahesh Srivastava, relating to offences punishable under Section 307/326 read with Section 34 of I. P. C. It appears, that the Magistrate on receipt of the charge- sheet, after giving necessary copies to the accused-persons, as required under Section 207 of Cr. P. C, committed the case to the Court of Sessions, for trial. The sessions trial appears to have been transferred to the Court of 1st Additional Sessions Judge, Dehradun. After hearing the prosecution and the defence, a charge of offence punishable under Section 307 of I. P. C. was framed against the accused/appellant Dr. (Major) Ramesh, and a charge of offence punishable under Section 307 read with Section 34 of I. P. C. was framed against rest of the accused, namely Sanjay Sharma, Ajay Kumar and Mahesh Srivastava. All the accused pleaded not guilty and claimed to be tried. On this prosecution got examined P. W. 1 Kishan Raka Mohan Singh (complainant); P. W. 2 Singh (injured); P. W. 3 Mohan Singh (scribe of the report); P. W. 4 Pramod Kumar (eye-witness); P. W. 5 Dr. S. S. Chauhan (who medically examined injured Kishan Singh) and P. W. 6 Sub- Inspector Babu Ram Yadav (Investigating Officer ). The oral and documentary evidence was put to the accused by the Trial Court, in reply to which the accused/appellant Dr. (Major) Ramesh alleged the same to be false, but admitted that he did fire shots from his revolver, in self-defence. On being given opportunity, defence got examined D. W. 1 Gurbux Singh, real uncle of complainant and injured, arid D. W. 2 Suman Lata, real sister of the two. The Trial Court, after hearing the parties found that the charge of offence punishable under Section 307 of I. P. C. as "against Dr. (Major) Ramesh was found proved, and the charge as against rest of the three accused, was not found proved. Accordingly, it acquitted Sanjay Sharma, Ajay Kumar and Mahesh Srivastava, but convicted the accused Dr. (Major) Ramesh, in respect of offence punishable under Section 307 of I. P. C. After hearing him on sentence, the Trial Court sentenced Dr. (Major) Ramesh to rigorous imprisonment for a period of three years and also to pay fine of Rs. 5,000/-, in default of payment of which, the convict was directed to undergo simple imprisonment for one year. Aggrieved by said judgment and order dated 16-7-1990, passed in Sessions Trial No. 96 of 1986, this appeal was filed by the accused/appellant before the Allahabad High Court, from where it has been received by transfer to this Court, for its disposal.
(3.) EVEN after notices being sent by this Court to the appellant, since he did not respond, this Court appointed Mr. Munish Bhardwaj, Amicus Curiae to assist the Court on behalf of the appellant. Before further discussions, it is pertinent to mention here, the injuries found on the person of injured Kishan Singh, recorded by the Medical Officer in the night of 23-4-1986, which are mentioned in Ext. A- 15. The injuries recorded by the Medical Officer, are as under: (i) One oval lacerated wound 1 cm in diameter (1 cm x 1 cm x not probed) edges inverted irregular. No blackening, scorching, tattooing present around the wound. Bleeding from the wound present. It is situated on right upper portion of front chest, 3 cm below mid clavicular line. (ii) A lacerated wound 1. 25 cm x 1. 25 cm x bone deep on bridge of nose, deformity of bridge of nose present. Fresh bleeding present. The Medical Officer kept the injury No. 1 under observation and advised X-ray. The X-ray of chest of Kishan Singh, which was taken on 24-4-1996, in Doon Hospital, Dehradun, shows that a radio opaque foreign body shadow of metallic density seen on the back of chest near clavicular joint. As such, the injury report corroborates the prosecution story, that a fire-arm injury was caused to Kishan Singh.;