1. This appeal has been preferred against the judgment of conviction and order of sentence dated 12.2.2015 passed by the learned Additional Sessions Judge of Upper Sessions Judge Ramanujganj, District-Surguja, Ambikapur, Chhattisgarh in Sessions Trial No.24/2013 convicting the accused/appellant under Sections 353, 333 & 307 of the Indian Penal Code (for short 'the IPC') and sentencing him to undergo RI for 2 years with fine of Rs.500/- and RI for 10 years with fine of Rs.1000/-, with usual default clauses, respectively. Both the sentences have been directed to run concurrently. (Sentence awarded U/S 307 Of IPC Only).
2. The prosecution case, in brief, is this that appellant had been a Constable in the battalion and was posted in Chando, District- Balrampur-Ramanujganj. It is alleged that on 6.10.2012 the appellant fired 20 rounds from Insaas rifle, which was alloted to Constable Ravindra Ekka PW-1, and at the same time he fired 19 rounds from S.L.R. rifle, which was alloted to Constable Saleem Ram PW-2. He also exploded a grenade. Other constables caught hold of the appellant and snatched the rifle from his possession. Constable Ravindra Ekka PW-1 lodged FIR ExP-1 in Police Station Chando. One constable Rajendra Ram PW-7 was injured by the shot fired by the appellant. After lodging of FIR, the investigation has be
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en conducted and charge-sheet was filed against the appellant before the concerned Court.
3. The appellant was charged for the offence under Sections 353, 333 & 307 of IPC to which he denied and prayed for trial. Statement of appellant under Section 313 of CrPC has been recorded in which he denied all the incriminating evidence available against him, pleaded innocence and false implication. One witness was examined in defence. After completion of trial, impugned judgment has been passed in which the appellant stands convicted and sentenced as aforesaid.
4. It is submitted by counsel for appellant that the conviction of the appellant is bad in law. None of the rifles from which shots were fired were alloted to the appellant. There is no proof regarding finger prints on the rifle seized in this case. Prosecution has come up with a totally improbable story. All the important witnesses in this case are constables posted in the same battalion, hence, they can be regarded as interested witnesses and therefore their evidence could not form basis of conviction against the appellant, hence, it is prayed that appellant be acquitted.
5. Learned counsel for the State has opposed the grounds raised in this appeal as also the arguments advanced by the counsel for the appellant. It is submitted that there is direct evidence against the appellant in this case. Statement given by S.I. Narayan Singh PW- 15, Saleem Ram PW-2 and injured witness Rajendra PW-7 are reliable and trustworthy. Seizure made from the appellant has been proved by the prosecution. Constable Vijay Toppo PW-10 is an eyewitness of the incident. Hence, the prosecution has proved its case beyond reasonable doubt and there is no ground for interference in the impugned judgment.
6. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment.
7. Constable Ravindra Ekka PW-1 has stated that on the date and time of incident he was asleep in the barrack. Upon hearing the sound of gunshots, he woke up and saw that the rifle alloted to him was not by the side of his bed. He come out and saw that appellant was holding the rifle alloted to him with magazine of cartridges and he was incessantly firing shots from the same rifle. One constable namely Rajendra Ram got shot due to firing made by the appellant. The appellant started firing at about 1 to 1.30 am and continued shooting upto 3 a.m. in the morning. Subsequently, finding opportunity, the appellant was nabbed and caught hold by other constables present on the spot. This witness has lodged FIR ExP-1. In crossexamination, he stated that he saw the appellant firing from the rifle which was actually alloted to him, his statement has remained unrebutted in cross-examination. He denied that the mental condition of appellant was not good at the time of incident. He has denied his rifle was not used for firing shorts by the appellant.
8. Saleem Ram PW-2 was also stated that he saw the appellant incessantly firing from the rifle because of which one constable Rajendra Ram got shot and injured and then the appellant was caught hold by the constables present there. He has further stated that appellant was in possession of the rifle bearing butt No.114 which was alloted to this witness. In cross-examination, he has stated that he has not seen the appellant firing shots, hence, it may be said that this appellant is hearsay witness to that extent, but his other statement that the appellant had made use of his rifle to shoot and has shot 19 rounds has remained unrebutted.
9. Bhuneshwar Nagesh PW-3 is also a constable, who has stated about witnessing the incident in which the appellant fired rounds from rifle and he came to know that constable Rajendra Ram PW-7 got injured from one of the shots fired on him. His statement has remained unrebutted in his cross-examination.
10. Constable Sant Ram Singh Markam has similarly stated. In his crossexamination, he has stated that he himself did not see the appellant firing from the rifle, but he personally knows that it was appellant who had fired shots from the rifle.
11. Constable Motiram Rajwade PW-5 is an eyewitness of the incident who saw the appellant firing shots from the rifle. His statement has remained unrebutted in his cross-examination.
12. Constable Kuldeep Kujur PW-6 is not the eyewitness who heard the shots fired. Rajendra Ram PW-7 is the injured witness who received gunshot injury on the left side of his chest. He had not seen the appellant firing at him.
13. Head Constable Laxman is not the eyewitness. Vijay Toppo PW-10 has given statement that it was appellant who was firing shots and he had witnessed this incident. In cross-examination, his statement has remained unrebutted. Sanjay Markade PW-12 is the hearsay witness and similar is the statement of Ajit Kerketta PW-13.
14. S.I. (CRPF) Narayan Singh PW-15 has stated that he heard the sound of firing coming from inside the barrack. He was informed that one of the constables is firing shots from rifle and then he saw injured Rajendra Ram, who was immediately shifted to the hospital. These are the statements of witnesses who were present on the spot, out of which some witnesses have stopped the appellant firing shots from rifle. There is no dispute regarding this fact that constable Rajendra Ram PW-7 got injured in that incident as he was got shot from the rifle bullet. No parallel story has been brought by defence to establish a different case from what is being presented by the prosecution.
15. S.I. K.R. Bhagat PW-17 has stated that he recorded FIR ExP-1 lodged by constable Ravindra Ekka PW-1. Subsequently during investigation, he made seizure of one SLR. rifle having No.114 printed on the butt of the rifle vide Ex.P-2 from the possession of the appellant. He also made the seizure of another Insaas rifle bearing butt no.232, empty cartridges from the spot vide ExP-3 in presence of witnesses. In cross-examination, his statement has remained unrebutted. Ravindra Ekka PW-1 has clearly supported the seizure made vide ExP-2 and seizure of Insaas rifle and other articles from the spot. Evidence of seizure of Insaas rifle and other articles from the spot was supported by Motiram Rajwade PW-5. Although another rifle has also been seized from the spot but according to the statement given by witnesses, the appellant had used the same to fire shots. Thus, on the basis of evidence brought on record by the prosecution, it has been established that at the time of incident the appellant was in possession of other SLR rifle, which was seized from his possession.
16. Scientific Officer S.K. Singh PW-9 has inspected the spot of incident and found the shot marks on various places inside the barrack. He also examined the S.L.R. and Insaas rifle and found them to be in working condition. He also examined the empty cartridges of those rifles. In cross-examination, he has reiterated that all the shots were fired inside the barrack. Head constable Rameshwar Sanwara PW- 16 examined the seized rifles and has reported that both the rifles were in working condition and can be used to fire shots.
17. Dr. Nishant Singh Chandel PW-14 had examined injured Rajendra Ram PW-7 and found one bullet injury of the size 3x3 cm on the left side of upper chest regarding which he was given report ExP-8. In cross-examination, he denied the suggestion that the injury could not have been caused by the bullet shot. Hence, his statement has remained unrebutted that injured Rajendra Ram has suffered a gunshot injury.
18. Constable Jeewan Prakash DW-1, who has been examined in support of defence, has made statement regarding the duty register and other registers ExD-1, D-2 & D-3 and similarly proved the allotment of one rifle to appellant. He has stated about the allotment of rifle to the appellant. This statement does not lead anywhere to contradict or rebut the statement of witnesses in favour of the prosecution, hence, evidence of defence is of no consequence.
19. After close scrutiny of all the evidence available on record, it is found that there are witnesses who have witnessed the appellant firing shots at the time of incident. There are witnesses who have stated that Rajendra Ram PW-7 suffered bullet injuries because of the firings made by the appellant. There are also witnesses who have stated that the appellant was in possession of rifles at the time when he was caught hold by the other constables and that the same were seized during investigation. Thus, the prosecution has been able to establish beyond reasonable doubt that it is the appellant who fired shots incessantly and one of shots fired by him hit on the left side of chest of Rajendra Ram (PW-7) and thereby injured him. Rajendra Ram (PW-7) has stated at the time of the incident he was on patrolling duty. On hearing the sound of firing shots, he came to inquire and then he suffered bullet injury on his chest.
20. Now the question arises whether the act attributed to the appellant is covered under Section 333 of IPC i.e. voluntarily causing grievous hurt to a public servant. According to the evidence present in this case it cannot be said that the appellant has caused grievous hurt to Rajendra Ram PW-7. Further, it is also not established from the medical evidence that the hurt caused to Rajendra Ram PW-7 was grievous in nature. The description of injuries given in MLC Report (Ex.P-8) clearly show that the injury caused to PW-7 was simple in nature. Finger movement was restricted because of which sensation over forearm was numbed, this sensation in finger movement was a permanent feature it has not been stated by the examining doctor, although he has reported that the injury was grievous in nature. But the gravity of any injury has to be examined in accordance with provisions under Section 320 of IPC and the description of injuries in Ex.P-8 do not conform to any of the descriptions given in Section 320 of IPC. Hence, it can be safely held that injury suffered by injured Rajendra Ram PW-7 was simple in nature.
21. On the basis of above findings, in the absence of any intention and infliction of grievous injury to the injured, the offence under Sections 353 and 333 of IPC is not made out, hence, conviction of appellant under these provisions appears to be bad in law.
22. Similarly the ingredients under Section 353 of IPC are also not clearly established in this case. It is not denied that Constable Rajendra Ram PW-7 was on patrolling duty at the time of incident and thus a public servant on duty, but the appellant had intention to prevent or deter him from discharging his official duty as a public servant was needed to be clearly established in this case. There is admission made by the witnesses that the appellant was inadvertently firing shots from rifles without aiming any where. Hence, it is a case in which injured constable Rajendra Ram PW-7 came in the way of one of the bullets aimlessly fired by the appellant and he got injured.
23. According to the discussion made hereinabove, the incident in this case falls in the description under Section 324 of the Indian Penal Code. It is found that, though in inadvertent manner but with voluntariness, the appellant had fired shots from rifle and one of that shot injured Rajendra Ram (P.W.-7), which has not been found as grievous injury or life threatening injury. Hence, after due consideration, this appeal is allowed in part. The conviction of the appellant under Section 353, 333 & 307 of I.P.C. are set-aside and instead now the appellant is convicted for the offence under Section 324 of I.P.C..The appellant is in jail since 07.10.2012, hence, considering that he has undergone period of detention more than that is provided under Section 324 of the Indian Penal Code, the appellant is sentenced with the period of detention already undergone by him in jail. The appellant is reported to be in jail. He be set at liberty forthwith, if not required in any other case.