1. This appeal is preferred by the accused against his conviction and sentence under Section 307 of the I. P. C. as also under Section 25 (1)(a) of the Indian Arms Act, passed by the learned Sessions Judge, Dhule, in Sessions Case No. 18 of 1976.
2. The prosecution case, in brief, is as follows:
The accused and the complainant are brothers-in-law, the complainant's sister being married to the accused. There was some dispute regarding the amount relating to the proposed marriage of the second sister of the complainant with the brother of the accused. On the day in question, viz., July 5, 1975, at about 5-30 p. m., the accused came to the house of the complainant and asked him to come out. When the complainant came out of his house, the accused hurled filthy abuses. The accused also took out a pistol and fired at complainant Mogya from a distance of about 15 to 16 feet. To avoid the shot, complainant Mogya fell on the ground. The bullet, however, caused a burning injury below the right knee joint while it passed through between the legs of the complainant. Hearing the noise of pistol shot, P. W. 2 Gemu. who was a neighbour, came out of his house thinking the noise to be of a cracker. Coming out, Gemu noticed that the complainant was lying on the ground, and the accused, who had a pistol in his hand, fired a second shot, but it misfired. The accused then threw the pistol on the ground and ran away. This incident, particularly of the second shot, is also according to the prosecution, supposed to have been witnessed by three other persons, viz., Ramu Motya, Rota Chamdya and Rama Zugarya. The village Kotwal Pralhad, on receiving the information, immediately contacted P. W. 3 Dongarsing, the Police Patil of village Vanyavihar, and conveyed the information that accused Jerma had injured Mogya with a pistol, and had run away. The Police Patil confirmed the said information from the complainant. He also took the pistol (Article 1) and one empty cartridge (Article 3) in possession. Soon thereafter he contacted the Police Station, Akkalkuva, on telephone and passed on the aforesaid information. At the said Police Station, Police Head Constable P. W. 5 Raghunath Pathak, who received the said information at about 7.15 p. m. on the telephone, made an entry in the station Diary and within a few minutes conveyed the said information to P. S. I. Dongre (P. W. 6). By that time i. e., by 8.00 p, m., Mogya also reached the Police Station. His oral complaint was reduced into writing by the P. S. I. and the same was completed by about 8.30 p. m.
3. On the basis of this complaint (Ex. 6), an offence was registered against the accused under Section 307 of the I. P. Code and Section 25 (1)(a) of the Indian Arms Act. P. S. I. Dongre thereafter reached the village in question at about 10.30 p.m. covering a distance of about 6 kms. Statement of eye-witness Gemu was recorded. The Police Patil produced the pistol (Article 1) and the empty cartridge (Article 3). The said pistol was opened in the presence of panch P. W, 4 Ramdas and it was found to contain one more cartridge (Article 2). These articles were attached under panchanama Exhibit Police Patil produced the accused but he caused him to be arrested on the next day, i. e., July 6, 1975. On the said day, July 6, 1975, statement of the Police Patil was also recorded as also the supplementary statement of the complainant. Under the guidance of the S.D.P.O. the scene of offence was minutely searched, when two small pellets (Article 4) were seen near the scene of offence and attached under the panchanama Exhibit 11. These articles were sent to the Chemical Analyser. Sanction of the District Magistrate was sought and obtained to prosecute the accused in respect of the offence under the Arms Act, In due course, charge-sheet was filed and the accused was prosecuted under Section 307 of the I, P. Code and under Section 25 (1)(a) of the Indian Arms Act. The accused pleaded not guilty to the charge.
4. The prosecution examined nine witnesses, two of whom were eye-witnesses, viz., P. W. 1 Mogya, the victim, and P. W. 2 Gemu, who was residing very near the place of the complainant and who came out of his house immediately on hearing the first shot. Considering the evidence on record, the lower Court found it to be established that the accused was in possession of a fire-arm without a licence as also that the complainant Mogya was injured by the accused with a pistol. It was also found to have been established that the accused re-loaded the pistol in question and fired a second shot at Mogya but it proved to be a misfire. It was also found to have been proved that the accused knew that his Act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause the death of Mogya. In the result, the lower Court found the accused guilty under both the charges, viz., one under Section 307 of the I. P. Code and the other under Section 25 (1)(a) of the Indian Arms Act. The accused was accordingly convicted. For the conviction under Section 307 of the I. P. C. he was sentenced to suffer rigorous Imprisonment for seven years and to pay a fine of Rs. 100/-, in default to suffer rigorous imprisonment for three months. For the conviction under Section 25 (1)(a) of the Indian Arms Act the accused was sentenced to suffer rigorous imprisonment for one year. The aforesaid substantive sentences were to run concurrently. This conviction is challenged by accused before us.
5. Mrs. Manju Rao, the learned Advocate appearing for the accused, very strenuously submitted that the prosecution had failed to prove the offences with which the accused was charged. She submitted that there was no evidence to show that it was the accused who was present at the time of the incident at the scene of offence and that it was he who had fired the shots in question. She also submitted that in any event there was no evidence to show that the intention of the accused was one which would fall squarely within the provisions of Section 307 of the I. P. Code. According to her, the accused was, therefore, entitled to an acquittal. In the alternative, her submission was that in any event, the sentence of seven years' rigorous imprisonment for the offence under Section 307 of the I. P. Code was too harsh and the same deserves to be reduced. Mr. B. D. K amble, the learned Public Prosecutor has, on the other hand, strongly supported the conviction as also the sentence imposed by the lower Court.
6. It is not possible for us to accept the contention of the learned advocate for the accused that the impugned convictions are not sustainable. On the contrary, we find cogent and ample evidence on the record which proves beyond reasonable doubt the guilt of the accused. The material and evidence on record also prove beyond reasonable doubt the intention of the accused. We have in this case the evidence of the injured himself whose testimony on oath has not in any material particulars been shaken in any way in his cross-examination. The prosecution story regarding the incident is also cogently corroborated by the evidence of the other witness P. W. 2 Gemu Motya, who was residing nearby and who immediately came out of his house on hearing the first shot thinking the same to be the noise of a cracker. He in no uncertain terms states in his evidence that when he came out of his house, the complainant was lying on the ground, that the accused had a pistol, and that the accused fired a second shot but It was a misfire. Suggestion in his cross-examination that he was the cousin of the complainant was denied. The witness also relates the distance between him and the accused as also between him and the complainant. In reply to a question as to why he did not chase the accused who fled away, he explained that because the complainant was injured and he was asked to call the Sarpanch, he did not chase the accused, We find that in material particulars the evidence of even this witness deserves full acceptance.
7. The evidence of these two eye-witnesses is also corroborated by medical evidence and the injury on the complainant. There are other circumstances which further corroborate the prosecution case. There is n immediate reporting of the incident. The name of the accused is also disclosed immediately. Investigation is also prompt. Articles have also been expeditiously taken charge of under panchanamas. A detailed search of the scene of offence also revealed next day two small ball-bearings which were also attached under panchanama Exhibit 11. The finding of the pistol and the misfired cartridge in it along with the pellets at the scene of offence together with the evidence of the aforesaid eye-witnesses along with the circumstance of immediate lodging of the first information report and the injury on the person of the complainant corroborated by the medical evidence leaves us in no doubt that the prosecution has established and proved its case against the accused.
8. The contention of Mrs. Manju Rao that there was no intention to causa death or such bodily injury as was likely to cause death in this case cannot be accepted. The attempt to fire the second shot clinches the intention of the accused. Finding that the first shot had not achieved the desired objective, the accused made a second attempt, aimed at the complainant. It was, however, only a fortuitous circumstance that the second shot misfired. But the very act of the accused in firing the second shot leaves one in no doubt about his intention. Indeed, for an offence under Section 307 of the I. P. Code no injury is necessary as such. The intention to cause death or such bodily injury as is likely to cause death Is sufficient. The said intention is, in our view, more than amply established in the present case. The conviction of the accused under S, 307 of the I. P. C. is, therefore, wholly justified and needs no interference at our hands. The same deserves to be confirmed.
9. On the question of sentence, however, we do find that the sentence of seven years' rigorous imprisonment awarded by the learned Sessions Judge Is rather on the harsh side. The accused is a young man. The Injury in the present case is one and single. It is also not a serious injury at all. Though, of course, this circumstance Is not relevant for the purpose of establishing the offence, it can, to a certain extent, be taken into account while considering the question of sentence. Taking into consideration all the facts and circumstances of the case and bearing in mind the evidence on record, we are of the view that a sentence of five years' rigorous imprisonment under Section 307 of the I. P. Code would meet the ends of justice in this case. In the circumstances, we confirm the conviction of the accused under Section 307 of the I. P. C, but reduce his sentence from seven years' rigorous imprisonment to five years' rigorous imprisonment. The sentence of fine of Rs. 100 and the sentence in default are maintained.
10. The conviction and sentence of the accused under Section 25 (1)(a) of the Indian Arms Act has not been seriously challenged before us particularly in view of his conviction under Section 307 of the I. P. Code.
11. In the result, this appeal is partly allowed. The conviction of the accused under Section 307 of the I, P. C. is confirmed. His sentence for the said offence is, however, reduced from seven years' rigorous Imprisonment to five years' rigorous imprisonment. The sentence of fine and the sentence in default passed by the learned Sessions Judge is maintained.
12. The conviction and sentence of the accused under Section 25 (1)(a) of the Indian Arms Act is also maintained.
13. Substantive sentences to run concurrently.