JUDGMENT
V.R. Kingaonkar, J.
1. Challenge in this appeal is to judgement rendered by learned 4th Ad-hoc Additional Sessions Judge, Dhule, in Sessions Case No. 10 of 2004, whereby appellant is convicted for offence punishable under Section 307 of the I.P. Code and sentenced to suffer rigorous imprisonment for eight (8) years and to pay fine of Rs. 2000/-, in default to suffer rigorous imprisonment for six (6) months more.
2. Shorn of unessentials, the prosecution case is that the appellant and daughter of injured/complainant Smt. Imiliyana D’suza fell in love and married. The daughter of the complainant resided with him at Mumbai for some period. The marriage was not successful. It was inter-caste marriage and the daughter of the complainant was being subjected to cruelty by the appellant in the matrimonial house. The complainant Smt. Imiliyana had opposed their marriage. Still however, initially she did not resist when they had married somewhere in 1995. The spouses fell apart after 2-3 years. The wife of the appellant, namely, Karmel was residing at Dhule at the relevant time. She had received amount of Provident Fund. Out of that amount, she had purchased an auto-rickshaw for the appellant and certain amount was kept in Fixed Deposit. On 20th October, 2003, a female journalist by name Rajashree visited house of PW Karmel. She told her that she was sent by the appellant in order to inquire about ill-treatment meted out to her by the appellant. Thereupon, PW Karmel narrated her plight to the female journalist and also gave a written complaint against the appellant regarding ill-treatment given by him. She urged the female journalist to help her. She was rescued by the police from house of the appellant while he was in slumber under the state of intoxication. The police told her to stay with the journalist in that night.
3. The prosecution alleges that in the same night, at about wee hours around 3.15 a.m., complainant Imiliyana was lying on the cot in her house. She heard some noise coming from near window of the bedroom. She saw that the appellant was standing outside with an airgun pointed towards her. As she asked who was standing outside, the appellant pulled trigger of the airgun. A pellet sprang out from the airgun and hit forehead of the injured/complainant. She started shouting while proceeding towards the main entrance of the house. The entrance door was closed from inside. The appellant attempted to push the entrance door with help of the airgun. He broke a piece of glass fixed outside the entrance door and pushed the airgun inside. He pointed out the gun towards the complainant and started shouting that he would kill her. She declared that she had informed the police on mobile and the police would come to the house within a shortwhile. The appellant thereafter fled away. A tenant of the house went to call her brother and they shifted her to Civil Hospital, for medical treatment. She was lateron sent to J.J. Hospital, Mumbai. The pellet was removed after operating her forehead. The appellant was arrested and chargesheeted for offence punishable under Section 307 of the I.P. Code.
4. A charge (Exh-15) was framed against the appellant. He pleaded not guilty. His defence is one of simple denial. According to the appellant, he is framed in a false case due to the matrimonial discord between himself and his wife at the behest of the complainant. He has suggested that the complainant was unhappy with the marriage and she wanted her daughter to give financial support to her. He contended that a false charge is levelled against him though he had no reason to use the airgun in the early hours.
5. The prosecution examined in all ten (10) witnesses in support of its case. The learned Sessions Judge held that the appellant fired a shot of the airgun on forehead of the complainant with intent to eliminate her. The learned Sessions Judge held that act of the appellant amounts to attempt to commit culpable homicide. The appellant, therefore, came to be convicted for an offence punishable under Section 307 of the I.P. Code and is sentenced as stated at the outset.
6. Mr. Mohammad Naseer, learned advocate for the appellant would submit that use of the airgun cannot be termed as use of fire-arm. He contended that the complainant had no occasion to see the appellant because it was late night and she was in her bedroom. He argued that due to illwill against the appellant, the complainant has falsely framed him. He pointed out that injury at the forehead of the complainant was not a bleeding injury as such. It is argued that the prosecution failed to prove that the injury was sufficient to cause death in the ordinary course of nature. The learned advocate, therefore, urged to allow the appeal. Per contra, learned APP Mrs. Khekale supports the impugned judgement.
7. There cannot be duality of opinion that ordinarily, air rifle or airgun is used for killing small birds, etc. Airguns are regarded as safe weapons. The observations made by learned Author Modi in the Commentary on “Medical Jurisprudence and Toxicology” (23rd Edition) at page 713 is thus:
Air Rifles and Air Pistols : In these rifles, compressed air is used to fire lead slugs. Here, as the mass of the pellet and velocity are low, usually minor injuries are caused. Serious injuries at short range are however reported.
Thus, it may be gathered that though airgun is usually regarded as safe weapon, yet when used at short range, the same may be dangerous one.
8. Coming to the prosecution evidence, it may be stated that PW1 Imiliyana (complainant) was alone in the bedroom during the wee hours of the night between 20th and 21st October, 2003. Her testimony purports to show that she heard some sound from near window of the bedroom. She is old aged woman. Her testimony reveals that she noticed that the appellant was standing outside the house with airgun pointed out towards her. Her version reveals that when she asked as to who was there, the appellant pulled trigger of the gun and thereafter, the pellet hit her forehead. She states that she sustained bleeding injury and, therefore, rushed towards the entrance door. She corroborates the recitals of the FIR (Exh-21). It is important to note that in the same morning, her statement was recorded while she was under medical treatment in Civil Hospital, Dhule. She named the appellant as the string puller of the airgun. The FIR was lodged with promptitude.
9. The background facts giving rise to the incident are also significant. The testimony of PW8 Karmel reveals that her mother (complainant) had sent a female media-reporter to her house in the evening of 20th October, 2003. Her version reveals that she gave an application with the female reporter and thereafter, the police got her rescued from house of the appellant. Her version purports to show that the appellant was in the slumber under inebrieted condition when the police got her rescued. Needless to say, somewhere after the midnight appellant awoke. He gathered as to what had happened. He, therefore, had reason to suspect that the estranged wife was with the complainant and that his wife was induced to leaving his company at the behest of the complainant.
10. Reverting to the testimony of PW Imiliyana, it may be stated that the appellant and her daughter developed love affair and performed registered marriage at Bandra. Her evidence reveals that the appellant and PW Karmel resided together at Mumbai for about one and half year. Though a searching cross-examination was directed against her, yet the core of her testimony, regarding the incident, remained unimpeached. The fact that she immediately named the appellant in the FIR is also eloquent.
11. The version of PW5 Sunil lends corroboration to the testimony of the complainant. He was residing as a tenant in room in the house of the complainant. He was then a student of Law College, Dhule. His version purports to show that he heard some sound in the early hours and got up. His room was adjoining to the bedroom of the complainant. He states that the complainant had received bleeding injury on the forehead. He noticed that the appellant was standing in the porch of the house with an airgun. He also noticed that the appellant broke a part of glass frame near the entrance door with butt of the airgun. He further noticed that the appellant was threatening the complainant, calling upon her to come out and declared that she would be killed. His version reveals that when the complainant told the appellant that she had informed the police on mobile, then he ran away from the house. His version reveals further that as per instructions of the complainant, he went to house of one clerk Fernandis. The independent version of PW Sunil cannot be dislodged. His version reveals that he had cordial relations with the complainant. Even so, his relationship as tenant of the complainant by itself would not be sufficient to brand him as an interested witness.
12. The learned advocate for the appellant would point out that versions of both these witnesses indicate that the complainant had received bleeding forehead injury, but the medical evidence of PW4 Dr. Vandana has not corroborated such a claim. It is true that no active bleeding was seen when Dr. Vandana examined the complainant at Civil Hospital, Dhule. The injury certificate (Exh-27) is corroborated by PW4 Dr. Vandana. Her version reveals that the complainant was examined at about 4.20 a.m. in the relevant morning. She noticed a penetrating wound over the forehead between two eyebrows 2 c.m. of which depth could not be ascertained. There was swelling of the injury. She did not notice active bleeding. Obviously, it is probable that after the penetrating wound, there was little bleeding which had stopped when the complainant was medically examined. It is important to note that the complainant was treated as an outdoor patient because airgun shot injury was found in an X-ray of the skull. She admits that visually orbit fracture was not noticed. She further admits that neuro-surgeon was required to treat the patient, but no such expert was available in the Civil Hospital. Her evidence reveals that an injury to the sinus could be possible due to rebounding of the pellet. Her evidence categorically shows that such injury was not possible by self-inflection.
13. The testimony of PW11 Dr. Pathak corroborates the medical opinion in the certificate (Exh-58A). His evidence reveals that the complainant had sustained laceration of size 0.5 c.m. x . 5 c.m. with scalp formation over forehead just above left eyebrow. He subscribed to the medical opinion that it was a gunshot injury. The complainant was operated. His version reveals that he was unable to locate whether it was a superficial injury. He required corroborative opinion of Surgeon and hence, was unable to tell whether it was a grievous hurt or that it was simple injury. Be that may as it is, the medical opinion of both the Medical Officers lend sufficient assurance to reach conclusion that the complainant had sustained a gunshot injury. The fact that the appellant fired airgun from a short distance is also duly proved. The prosecution has proved that the appellant was annoyed to see that his wife – PW Karmel was not at home during the night. Needless to say, he suspected that his wife was removed from his house at behest of the complainant. His conduct is worthy to be noted. He shouted from outside the house of the complainant that he would kill her. He had called her out of the house. He was enraged and actually used the airgun during the course of incident. So, it can be inferred that his intention was to eliminate the complainant by using airgun. Hence, the offence punishable under Section 307 of the I.P. Code is made out from the evidence of the prosecution.
14. It is not necessary to elaborately discuss the remaining evidence on record. PW2 Purushottam, PW6 Yogesh and PW7 Gopal are panch witnesses. They were declared hostile. Nothing of significance could be elicited from their evidence. They did not support the evidence regarding recovery of airgun, etc. The version of PW3 Oskar is based on hearsay information. He has no knowledge about the incident. PW9 PSI Bhagwat and PW10 PSI Pimpre narrated as to how the investigation was carried out. They corroborated the recovery panchanama. The airgun was not, however, sent to Firearm Expert for opinion. It is difficult to say, therefore, that the same airgun was used by the appellant and that it is a useful firearm as such.
15. For the reasons stated above, I am of the opinion that the conviction of the appellant for offence punishable under Section 307 of the I.P. Code is legal and proper. So far as quantum of sentence is concerned, it is important to note that the appellant shot the airgun only once. He did not use the airgun again while he was in the proximity of the bedroom of the complainant. He was enraged because his wife had left his house in the relevant night. He is the son-in-law of the complainant. He is not harden criminal as such. The complainant, admittedly, opposed the marriage in the initial period. The appellant had reason to believe that she had put spokes in the matrimonial relationship between himself and PW Karmel. Under such circumstances, I am inclined to hold that the sentence awarded to the appellant is rather harsh. It would be in the fitness of things and proportionate to the act of the appellant that the sentence be reduced to four (4) years’ rigorous imprisonment.
16. In the result, the appeal is dismissed. However, substantive sentence awarded to the appellant is reduced to four (4) years instead of eight (8) years. The rest of the part of the impugned judgement and order is maintained.