- (1.) THIS is an appeal filed by Harji and Rooparam against the judgment of the Additional Sessions Judge, Sri Ganganagar, dated 15th May 1976, by which Harji was convicted under sec. 307, I. P. C. and secs. 25 (l) (a) and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 500/-, in default of payment of fine to further suffer rigorous imprisonment for three months on the first count and on each of the second and the third counts to undergo rigorous imprisonment for two years and to pay a fine of Rs. 100/-, in default of payment of fine to further suffer rigorous imprisonment for one month. By this very judgment, Roopa Ram was convicted under sec. 307, I. P. C. read with sec. 109, I. P. C. and sec. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 300/-, in default of payment of fine to further suffer rigorous imprisonment for two months on the first count and on the second to undergo imprisonment for two years and to pay a fine of Rs 100/-, and in default of payment of fine to further suffer rigorous imprisonment for one month. All the substantive sentences of imprisonment awarded to both the appellants were ordered to run concurrently. The rest of the accused, namely, Raja Ram, Balwant, Harji and Taru were acquitted of all the charges framed against them.
(2.) THE prosecution case against the appellants was as follows: - THEre was bad blood between Dula Ram and Roopa Ram appellant prior to the 5th day of November, 1974 and criminal cases were instituted against both of them and their relatives at the instance of each other It was alleged that Roopa Ram and his companions had beaten the younger brother of Dula Ram about three or four months prior to the occurrence. Criminal proceedings were initiated against Dula Ram and others also for beating some persons of the party of Roopa Ram appellant. In that case Dula Ram was admitted to bail while the bail application of Dula Ram's brother Rajs Ram and others was pending for determination in the court of the Sessions Judge, Sri Ganganagar THE bail application was fixed by the learned Sessions Judge for arguments on 5th November, 1974 and so Dula Ram, Perma Nand and Gangajal had come to the court of the Session on that day to hear arguments. At about 1230 pm. the same day, i. e. on 5th November, 1974, Dula Ram was talking to Ram Swaroop, Advocate, within the court precincts near the western gate of the boundary, wall of the Sessions Court. At that time Raj a Ram accused (who has been acquitted by the trial Judge) uttered the following words in a loud tone: "mar DUSHMAN KHARA HE". THEreupon, Roopa Ram appellant started his jeep No. 5598 PNT and Harji appellant fired a shot from his gun at Dula Ram which hit the latter on the elbow of his right hand. After firing the shot, Harji boarded the jeep and Roopa Ram appellant drove it away. As a result of the shot, Dula Ram sustained bleeding injury and ran into the Sessions Court. After the assailant had disappeared from there, Dula Ram was taken to hospital by his relative Surja in a rick haw. In the hospital, he was medically examined by Dr. M. P. Agrawal, who found the following injuries on his person: - (1) four wounds of entry, lacerated, oval to circular in shape, inverted edges and with scorching at edges of the wounds. THE sizes of the wounds were 1/3" x 1/3"; 1/3" x 1/3'; 1/2" x 1/4 and 3/4" x 1/2" all through and through the extremity. THEre were multiple comminuted fractures of the underlying bones. THE injury was situated on the anterior aspect of right elbow, lower end of arm and upper end of the fore-arm; (2) Four wounds of exit, lacerated, irregular, everted edges. THEre was fresh bleeding from the wounds sizes of the wounds were l"x1/2"; 3/4" x1/2"; 1/4"x 1/2" and 1/2" x1/2". THE injury was situated on the dorsal aspect of the right elbow, lower end of arm and upper end of fore arm. Meanwhile, the Station House Officer, Sri Ganganagar, received a message upon telephone that a person had been injured in the precincts of the Sessions Court by firing a shot. Upon receiving the above information, the Station House Officer made an endorsement in the daily diary of the police station and rushed to the spot where he came to know that the injured had been admitted in the hospital. THE Station House Officer then went to the hospital at Sri Ganganagar and recorded the statement of the injured Dula Ram, which is Ex. P 1 on the record. On the basis of this statement, a criminal case under sec 307/34 I. P. C. and sec. 27 of the Arms Act was registered at the police station and the investigation commenced. In the course of investigation, Tek Chand, Station House Officer, inspected the site, prepared a site-plan and a site inspection memo and took the shirt of the injured and one 12 bore was in to his possession. He arrested the appellants. At the time of his arrest, Harji appellant had a double barrel 12 bore gun in his possesion which was seized by the Station House Officer, vide memo of recovery Ex. P. 4. THE licence of this gun was in the name of Roopa Ram and Harji had no licence for keeping it in his possession. On 16th November, 1974, Harji appellant while under police custody gave the Station House Officer an information that he had concealed one 12 bore country-made double barrel gun inside the heap of fire wood on the roof of Roopa Ram's residential house and that he was ready and willing to get it recovered. THE Station House Officer recorded the above information in a memo Ex. P. 12 and, later on, recovered the gun from the above mentioned place at the instance of Harji and in consequence of his above information. Harji had no licence for this gun also. THEreafter, the Station House Officer searched the house of Roopa Ram and recovered five empty and twelve used cartridges vide memo of recovery Ex. P. 14. THEn he obtained requisite sanction to prosecute Harji under sec. 3/25 of the Arms Act from the then District Magistrate, Sri Ganganagar and presented a challan in the court of the Chief Judicial Magistrate under sections 307, 120 B read with sec. 34, I. P. C. and sections 25 and 27 of the Arms Act, against the accused persons including the two appellants after concluding the investigation. The learned Magistrate, upon finding a prima facie case exclusively triable by the Court of Session, committed the accused persons including the two appellants in the court of the Sessions Judge, Sri Ganganagar, for trial under the aforesaid sections of the Penal Code. The Sessions Judge transferred the case to the court of the Additional Sessions Judge, Sri Ganganagar, for trial. The Additional Sessions Judge convicted and sentenced the two appellants in the manner stated above. Aggrieved by their conviction and sentences, the appellants have come-up in appeal to this Court, as stated above. I have carefully gone through the record and heard Mr. Bhim Raj Purohit, learned counsel for the appellant and Mr K. C. Bhandari, Public Prosecutor, for the State, assisted by Mr. C. R. Jakhar for the complainant. Firstly, it has been contended by Mr. Bhim Raj Purohit that there was no abetment by Roopa Ram of an offence alleged to have been committed by Harji appellant. According to the learned counsel, in order to attract the applicability of sec. 109, I. P. C. It is essential that there must be an abetment and the abetment must be of an offence and the offence must be committed in consequence of the said abetment and there must be no express provision for the punishment of such abetment in the Indian Penal Code. Mr. Bhim Raj Purohit further argued that in the instant case there is not an iota of evidence against Roopa Ram appellant that he instigated Harji to fire a shot from his gun at Dula Ram or that he engaged with Harji and others in any conspiracy for killing Dula Ram by gun shot or intentionally added by doing an act or illegal omission the commission of an offence alleged to have been committed by Harji. The learned counsel submitted that in the absence of such evidence, the trial court committed a glaring error in convicting Roopa Ram of an offence under sec. 307 read with sec. 109, I. P. C. Mr. K. C. Bhandari, Public Prosecutor, on the other hand strenuously urged before me that Roopa Ram was guilty of facilitating the commission of the act or offence committed by Harji and so he was rightly held to have abetted the offence of attempt to murder. The Public Prosecutor further contended that it was Roopa Ram who brought Harji appellant in his jeep near the boundary wall of the court of the Sessions Judge prior to the commission of the offence and, thereafter, handed over his gun to Harji for firing a shot at Dula Ram and then after the shot was fired, immediately took away Harji in his jeep from the place of occurrence. According to the Public Prosecutor, the referred to above facts clearly indicated that Harji was intentionally added by Roopa Ram in the doing of his act which amounted to an offence punishable under section 307, I. P. C. I have considered the above contentiors At the outset, I may observe that out of the three kinds of abetment mentioned in section 107, I. P. C. Roopa Ram is alleged to have abetted the principal offender by intentionally aiding him in the doing of his act of firing a shot at Dula Ram There is no evidence on the record about the commission of the offence of the other two kinds of abetment, i. e. abetment by instigation and abetment by conspiracy. Hance, it is necessary to find out what illegal act or omission was committed by Roopa Ram which facilitated the commission of the offence by Harji. The first act imputed to him by the prosecution is that he brought Harji in his jeep near the boundary wall of the court of the Sessions Judge, Sri Ganganagar, prior to the commission of the offence and when Harji got down from the jeep, Roopa Ram kept the engine of the jeep starting. This act by itself is not sufficient to prove Rooparam's guilt He might have brought the jeep near the boundary wall of the court of the Sessions Judge, Sri Ganganagar of his own accord accidentally or at the instance of Harji appellant without the knowledge that a crime as being committed or contemplated by Harji. This act of Roopa Ram might be an innocent one, it undoubtedly amounts to giving of the aid but if he did not know that an offence was being committed or contemplated by Harji, mere giving of aid by him will not make his act an abetment of an offence There is no evidence on the record that Harji informed Roopa Ram that he was going to kill Dula Ram by firing a shot at him It does not transfer from the prosecution evidence that at the time when Roopa Ram brought the jeep on the road near the boundary wall of the court of the Sessions Judge, Harji asked him to stop the jeep and kept its engine starting till his return after firing a shot at Dula Ram In the absence of such evidence, I do not feel inclined to hold that Roopa Ram intentionally drove the jeep, boarded by Harji appellant, to a place near the boundary wall in order to facilitate the doing of the offence. Likewise, the act attributed to Roopa Ram that he Kept the engine of the jeep starting during the time taken by Harji in getting down from the jeep, reaching the boundary wall of the court of the Sessions Judge and then returning to the jeep after firing a shot at Dula Ram might have been done accidentally or in good faith. It is possible that Harji without informing Roopa Ram that he was going to fire a shot at Dula Ram might have asked Roopa Ram to keep the engine starting, as he would be returning soon. Unless Roopa Ram knew or had reason to believe that Harji was about to do a criminal act or offence, it cannot be said that he intentionally aided Harji or facilitated the committing of an act by bringing Harji appellant in his jeep near the place of occurrence and thereafter by keeping the engine of the jeep starting till the return of Harji Another act for which Roopa Ram has been held responsible is the giving of his gun to Harji for committing the offence. This act imputed to Rooparam has not been proved by the prosecution beyond reasonable shadow of doubt. The prosecution has produced Perma Nand, P. W. 2; and Gangajal, P. W. 3, to prove this fact It will not be out of place to mention that Dula Ram did not say in his deposition that the gun from which the shot was fired by Harji was handed over to him by Roopa Ram Parma Nand end Gangajal no doubt stated in their depositions at the trial that they had seen Roopa Ram appellant handing over his 12 bore gun to Harji near the boundary wall immediately prior to the firing of the shot/upon close scrutiny the evidence of these two witnesses does not inspire confidence Perma Nand was confronted with and contradicted by his previous statement Ex. D. 1 which he gave before the Investigating Officer and wherein he did not state that Roopa Ram got down from his jeep and handed over his gun to Harji. When confronted with the above statement, Perma Nand could not say why this fact was not recorded in his previous statement. Perma Nand was again contradicted by portion A to B of his previous statement, wherein he stated that Roopa Ram had asked Harji to fire a shot at Dula Ram. In his statement at the trial. Perma Nand did not stick to his previous statement and merely stated that Roopa Ram had pointed towards Dula Ram Dula Ram did not say in his deposition that Roopa Ram had asked Harji to fire a shot from his gun at him or that he pointed him out to Harji. In this manner, the testimony of Perma Nand failed to establish beyond reasonable doubt that the gun from which the shot was fired by Harji was banded over to him by Roopa Ram outside the boundary wall and that Roopa Ram uttered some words to instigate or stimulate Harji to do the criminal act.
(3.) LIKEWISE, the evidence of Gangajal that Roopa Ram had given his gun to Harji prior to the commission of the offence is not worthy of credence. Gangajal admitted in his cross-examination that there was litigation going on between him and Roopa Ram prior to the occurrence and, as a consequence thereof, their relations were strained. This witness went to the length of saying that Roopa Ram and another person Raja Ram, who has been acquitted in this case, talked to Harji for five or ten minutes on the road near the jeep Thereafter, Raja Ram came to the court permises and Roopa Ram drove the jeep to the western gate of the premises of the court. Thereafter, Raja Ram again went near the jeep and talked to Roopa Ram and Harji. These facts have not been stated by Dula Ram and Perma Nand in their statements On the other hand, Perma Nand stated in his examination-in-chief that Roopa Ram and Harji got down from the jeep and went near the boundary wall of the court premises where they met Raja Ram. Apart from this, Gangajal was contradicted by portion C to D of his statement Ex. . D. 2 which he gave before the police wherein he stated that Roopa Ram and Raja Ram, while pointing towards Dula Ram, uttered the following words:-DUSHMAN NISHANE ME KHADA HE MAR GOLI". In his statement before the trial court, he merely stated that Roopa Ram, Raja Ram and Harji were talking to each other immediately prior to the firing of the shot but he could not hear their talks When confronted with the above portion of his police statement, Gangajal could not explain the referred-to above material discrepancy in his two statements. He merely stated that he did not tell the police that the words quoted above were uttered by Raja Ram and Roopa Ram at that time. There is another discrepancy of material nature in his two statements. The discrepancy is that in his cross-examination at the trial. Gangajal stated that he knew beforehand that the gun was double barrel gun belonging to Roopa Ram and he clearly stated before the police that the gun was a double barrel one. When contradicted by his previous statement Ex. D 2, he could not say why this fact was not written in his police statement. The evidence of Gangajal cannot be accepted so far as it relates to the part played by Roopa Ram because at the initial stage he implicated Roopa Ram by saying that he instigated Harji to kill Dula Ram by uttering the words "dushman NISHANE ME KHADA HE MAR GOLI" and subsequently changed his version without any reason and rhyme by stating that he could not hear the talks going on between Harji, Roopa Ram and Raja Ram immediately prior to the commission of the offence. It appears that out of enmity between him and Roopa Ram, he made an attempt to entangle Roopa Ram in this case by falsely stating that the gun was handed over to Harji by him. It is no doubt true that a double barrel gun was recovered from Harji appellant at the time of his arrest by Tek Chand, Station House Officer, Sri Ganganagar, vide memo of arrest and recovery Ex. P. 4. Harji had no licence to keep this gun in his possession. The licence for this gun was in the name of Roopa Ram appellant. The prosecution ought to have led evidence of the ballistic expert to show that the shot was fired from this very gun at Dula Ram. In the absence of such evidence, it cannot be safely held that the shot was fired at Dula Ram by Harji from the double barrel gun of Roopa Ram. Hence, mere presence of Roopa Ram at or near the place of occurrence without awareness that an offence is being committed by Harji does not in itself amount to abetment by aid. Some aid must be proved to have been given by Roopa Ram to Harji in order to facilitate the commission of the offence by him and it must further be proved that such aid had actually facilitated the commission of the offence. In the absence of any evidence to show that Harji fired a shot from the gun at Dula Ram with the approval or connivance of Roopa Ram, the latter could not be considered an abettor merely from the fact that he brought Harji in his jeep near the boundary wall of the court premises and kept himself sitting at the steering inside the jeep at some distance from the place of occurrence immediately prior to the commission of the offence. The third act proved to have been committed by Roopa Ram was that he soon after the commission of the offence committed by Harji allowed the latter to sit in his jeep and drove the jeep away from the place of occurrence. Roopa Ram's this act also is not sufficient to prove abetment by aid, because the offence had already been committed by Harji and any subsequent action by Roopa Ram which might in any manner help the principal offender did not constitute an abetment within the meaning of sec. 107, I. P. C. Apart from this, there is no proof that Roopa Ram while knowing that the crime bad been committed by Harji, helped the latter by removing him in his jeep from the place of occurrence. Consequently, I am unable to uphold the conviction of Roopa Ram under sec. 307 read with section 109, I. P. C. As regards his conviction under section 27 of the Arms Act, it may be observed that no unlicensed gun was recovered at his instance or in consequence of his information recorded under sec. 27 of the Evidence Act. It is no doubt true that a double barrel gun was recovered from the possession of Harji at the time of his arrest and that gun belonged to Roopa Ram but Roopa Ram had a licence for keeping that gun in his possession. As stated earlier, the prosecution could not prove beyond reasonable doubt that Roopa Ram handed over his gun to Harji for enabling him to use the same for any unlawful purpose. There is no proof on the record that the shot was fired by Harji at Dula Ram from the double barrel licensed gun of Roopa Ram. Hence, Roopa Ram's conviction under sec. 27 of the Arms Act cannot be allowed to stand. ;