K.D. Sharma, J.
1. This is an appeal filed by Harji and Roopa Ram against the judgment of the Additional Sessions Judge, Sri Ganganagar, dated 15th May, 1976, by which Harji was convicted under Section 307, I.P.C. and Sections 25 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 Section 307, I.P.C. read with Section 109, I.P.C. and Section 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 rigorous 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 & 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 Ors. 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 Raji Ram and Ors. was pending for determination in the court of the Sessions Judge, Sri Ganganagar. The bail application was fixed by the earned Sessions Judge for arguments on 15th November, 1974 & so Dularam Perma Nand & Gangajal had come to the court of the Sessions on that day to hear arguments. At about 12.30 P.M. the sam day i.e. on the 5th November, 1974, Dularam 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 Raja Ram accused (who has been acquitted by the trial Judge) uttered the following words in a loud tone: 'MAR DUSHMAN KHADHA HE' Thereupon, Roopa Ram appellant started his jeep No. 5598 PNT and Harji appellant fired a short 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, Dulla 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 rickshaw In the hospital he was medically examined by Dr. M.P. Agarwal, who found the following injuries on 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 1/3rd' x 1/3'; 1/3' x 1/3''; 1/2 x' 1/2' and 3/4 'x1/2', 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 1' x1/2'; 3/4'X1/2'; 3/4' X 1/2' 1/2'Xl/2' and 1/2 'X 1/2'. 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 Section 307/34 I.P.C. and Section 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 into his possession He arrested the appellants At the time of his arrest, Harji appellant had a double barrel 12 bore gun in his possession 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 Section 3/25 of the Arms Act from the then District Magistrate Shri Ganganagar and presented a challan in the court of the Chief Judicial Magistrate under Sections 307, 120-B read with Section 34, I.P.C. and Sections 25 & 27 of the Arms Act. against the accused persons including the two appellants after concluding the investigation.
3. The learned Magistrate, upon finding a prima facie case exclusively triable by the Court of Sessions 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 Session-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.
4. 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 Section 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 Section 307 read with Section 109, I.P.C..
5. 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 aided by Roopa Ram in the doing of his act which amounted to an offence punishable under Section 307, I.P.C.
6. I have considered the above contentions. 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 Hence, 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 Roopa Ram'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 was 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 transpire 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 keep 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 bounden wall of the court of the Sessions Judge & 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 art for which Roopa Ram has been held responsible is the giving of his gun to Harji for committing the offence. This act imputed to Roopa Ram 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 Perma Nand and 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. Dull 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 handed 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.
7. 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 at quitted in this case, talked to Harji for five to ten minutes on the road near the jeep. Thereafter, Raja Ram came to the court premises 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 hate Roopa Ram and Harji got down from the jeep and want 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 and 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 matt trial 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 before hand that the gun was a 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 saving that the 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 be stating that he could not near 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.
8. It is no doubt 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 Rooparam. Hence, mete presence of Rooparam 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 & 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 Dularam with the approval or connivance of Rooparam, the latter could not be considered an abettor merely from the fact that he brought Harji in the jeep near the boundary wall of the court premises & kept himself sitting 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 Section 107, I.P.C.. Apart from this, there is no proof that Rooparam while knowing that the crime had been committed be 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 Section 307 read with Section 109, I.P.C..
9. As regards his conviction under section 21 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 Section 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 no 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 Section 27 of the Arms Act cannot be allowed to stand.
10. Now I deal with the appeal of Harji who is the principal offender After going through the evidence on the record, I am satisfied that the trial court lightly held him responsible for causing gun-shot injuries to Dula Ram. The evidence of Dula Ram P W. 3, is entirely trust-worthy, so far, as it relates to the complicity of Harji in the commission of the crime. These witnesses had seen Harji appellant firing a shot from a gun at Dula Ram which hit the latter on his right elbow. Mr. Bhim Raj, learned Counsel for the appellants, could not succeed in assailing evidence of these eye witnesses on this point These witnesses were cross-examined at length by the learned Counsel for Harji in the trial court but nothing could be elicited from their cross-examination which may tend to show that they had not seen Harji causing a gun shot injury to Dula Ram at the time and place alleged b the prosecution. The occurrence took place in broad-day light in the court premises at Ganganagar. The presence of Dula Ram and his brother Gangajal and Perma Nand on that day in the court premises cannot be doubted, because they had come to the court of the Sessions Judge, Sri Ganganagar, in connection with the hearing of bail application of their brother which was posted the very day for arguments. These persons knew Harji before hand So they could easily identify him, especially when the place from where Harji fired the shot at Dula Ram was not far off from the place where these eye-witnesses were standing. The evidence of Dula Ram, Ganagajal and Perma Nand is further corroborated by Dr. S.S. Bhargava and Dr. M.P. Agrawal who found grievous gun shot injuries on the right elbow of Dala Ram Hence, in view of the overwhelming evidence adduced by the prosecution, I am satisfied that none else but Harji had caused gun-shot injuries to Dula Ram.
11. The next question that remains to be considered is what offence had been committed by Harji appellant. Mr. Bhim Raj Purohit, learned Counsel for Harji appellant vehemently contended before me that in the absence of proof of intention or knowledge referred to in Section 307 I.P.G. the appellant must be deemed to have intended to inflict only that kind of gun injury which had in fact been caused to the body of Dula Ram. According to his submission, there is no evidence from the side of the prosecution to show that the intention of Harji was to cause death of Dula Ram or to cause such bodily injury to him as he knew to be likely to cause his death or to cause any bodily injury to him, which was sufficient in the ordinary course of nature to cause his death. In support of his above contention, Mr. Bhim Raj Purohit relied upon an authority of the Allahabad High Court Bhagwan Din v. State : AIR1967All580 . Mr. K.C. Bhandari, Public Prosecutor, on the other hand argued that Harji hooted Dula Ram with a gun and there by caused hurts to him and so he is liable to conviction under the latter part of Section 307 I.P.C. and his conviction under Section 326 I.P.C. is not warranted in the circumstances of the case.
12. I have considered the rival contentions. At the outset I may observe that the prosecution was bound to prove the intention of Harji independent of the act committed by him. The mere fact that Harji caused hurt to Dularam by means of any instrument for shooting is not sufficient to make out a case under Section 307, I.P.C. against him. The requisite intention or knowledge of Harji could be established either from the nature of the injuries actually caused by him or from other surrounding circumstances, e. g. any expression of his intention made by him at the time of the act, his motive to commit the crime and severity and the number of blows given by him in quick succession, the part of the body of the victim of assault selected by him for causing the injuries etc. In the instant case, the prosecution could not lead any evidence to establish that Harji expressed his intention to kill Dularam at the time of firing the shot. It is the case of the prosecution itself that he fired one shot from his gun at Dularam and, therefore, he ran back to the jeep to go away from the place of occurrence. The shot fired by him at Dularam hit the latter on the non-vital part of his body. i.e. right elbow. The injury caused by the shot was no doubt grievous in nature but it was not caused on a vital part of the victim's body. Hence, in the absence of proof of requisite intention or knowledge to kill. Harji must be deemed to have intended to inflict only that kind of injury which had been actually caused by him to Dularam. In this view of the matter, the conviction of Harji Under Section 307, I.P.C. must be altered to one under Section 326, I.P.C., because there is no evidence to indicate that he had any intention or knowledge of causing death by firing at Dularam.
13. Harji appellant has been convicted Under Section 25(1)(a) and Section 27 of the Arms Act also by the trial Judge. Mr. Bhimraj Purohit appearing on his behalf could not succeed in assailing his conviction for the aforesaid offences under the Arms Act before me. The prosecution has proved to the hilt that Harji had a gun in his possession from which he fired a shot at Dularam. Section 27 of the Arms Act provides punishment for possessing arms or ammunition with intent to use the same for any unlawful purpose. Harji was seen by the eye witnesses having a gun with intent to use the same for firing a shot at Dularam and in fact he did fire a shot from the gun and caused grievous injuries to Dularam. It is further proved by the prosecution that he had no licence for the gun one recovered from his possession at the time of his arrest and the others recovered at his instance from the house of Roopa Ram in pursuance of his information recorded Under Section 27 of the Evidence Act. He was, therefore, clearly guilty under Section 25(1)(a) and 27 of the Arms Act also.
14. The result of the above discussion is that I accept the appeal filed by Rooparam and set aside his convictions and sentences under Under Section 307 read with 109, I.P.C. and 27 of the Arms Act and acquit him of the same Rooparam is at present in jail. He shall be released forth with, if not required in connection with some other case. I partly accept the appeal of Harji and while maintaining his convictions and sentences under Sections 25(1)(a) and 27 of the Arms Art alter his conviction from under Section 307, I.P.C. to one under Section 326, I.P.C.. and reduce the substantive sentence of ten years' rigorous imprisonment to a term of three years' rigorous imprisonment while maintaining the sentence of fine of Rs. 500/-, in default of payment of fine to further suffer rigorous imprisonment for three months. The substantive sentences of imprisonment awarded to him under Sections 25(1)(a) and 27 of the Arms Act and Section 326, I.P.C. shall run concurrently. However, the period of detention, if any, undergone by Harji during investigation, inquiry or trial of this case and before the date of such conviction, shall be set off against the terms of imprisonment imposed on him & his liability to undergo imprisonment, on such conviction, shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. The appellant is already in jail. He shall serve out the sentences.
15. Mr. K.C. Bhandari, public prosecutor, for the State orally prayed for grant of a certificate for leave to appeal to the Supreme Court, The oral prayer is rejected, because there is no substantial question of law involved in this case which requires authoritative decision by the Supreme Court. The appeal has been decided on appreciation of the evidence. Hence, the leave sought is refused.