JUDGMENT
1. This is an appeal by Om Parkash alias Omi through Jail. The appellant was convicted under S. 307 r/w. S. 34, Penal Code. He was also convicted for substantive offence of conspiracy under S. 120B of the Penal Code. He was further convicted for an offence under S. 27 of the Arms Act for having been found in possession of a revolver and some ammunition. The Additional Sessions Judge, Shri G. S. Dhaka, passed the order of conviction against the appellant herein and his co-accused Lalit Mohan Kohli for the above noted offences on 9th March, 1981. The order sentencing them to various terms of imprisonment was passed on 10th March, 1981.
2. The appellant was sentenced to four years’ rigorous imprisonment under Ss. 307/34 of the Penal Code and for a period of two years’ rigorous imprisonment in the case under S. 27 of the Arms Act. The sentences were directed to run concurrently. Although the learned additional Sessions Judge had found the appellant guilty for the substantive offence of conspiracy under S. 120B of the Penal Code, yet no separate sentence was awarded to him for that offence.
3. The facts of the prosecution case have been noted in detail by the trial Court. No useful purpose will be served by noticing them all over again. However, in a nutshell the prosecution case was that the appellant herein and his co-accused Lalit Mohan Kohli were notorious chain snatchers. It had been reported that these young men were going round Delhi on a Jawa Motor Cycle bearing No. DEW 1012 and had been committing the offence of chain snatching in various areas of Delhi. At about 6-30 p.m. on 19th October, 1978, Annadurai, a constable posted in Pahar Ganj Police Station, made a report in the police station that while on patrol duty he had found motor-cycle bearing No. DEW 1012 parked in a corner near Arya Samaj Mandir, Chuna Mandi, Pahar Ganj. This motor-cycle was found to be locked. This was the motor-cycle which was reportedly being used by the chain snatchers. Annadurai left another constable, who was also with him on patrol duty, to guard the motor-cycle and himself came to the police station to report this information which he considered important. Immediately thereafter a police party consisting of Sub-Inspector Satvir Singh along with Constables Ajit Singh, Shiv Charan, and Dinesh Kumar was sent to the spot for Nakabandi of that area. Another Sub-Inspector Purshotam Lal was also in the said party. It may be noticed that apart from Purshotam Lal all the other were in the civil dress; Purshotam Lal was the only person in uniform.
4. At about 9-40 p.m., it is the case of the prosecution, both the accused Lalit Mohan Kohli and the appellant herein Om Parkash were seen coming towards the motor-cycle. On reaching the motor-cycle, it is stated, the appellant herein took out a key from his pants pocket and unlocked the motor-cycle. His co-accused Lalit Mohan Kohli tried to start the motor-cycle; the appellant sat on the pillion seat. It was at this juncture that the police officials ran towards them of the purpose of over-powering them. Sub-Inspector Purshotam Lal shouted at them to stop the motor-cycle. It is at that stage that the appellant took out a country-made revolver of point 32 bore from his pocket. He aimed it at Sub-Inspector Satvir Singh and pressed the trigger. The revolver, however, misfired. The accused was overpowered and the revolver was snatched from his hand. On search of the person of the accused a knife was recovered from Lalit Kohli. The revolver was unloaded. It was found to contain two live cartridges including the one which had misfired. The motor-cycle, the knife, the revolver and some golden chains which were recovered, were seized. After investigation and after getting a report from the central Forensic Science Laboratory, two separate reports – one regarding the offences under the penal Code and the other for the offence under the Arms Act, were filed. After trial, as already noticed above, the appellant and his co-accused were found guilty; they were convicted and sentenced to various terms of imprisonment.
5. Admittedly, there is no public witness produced by the prosecution in support of its allegations. All the six eye-witnesses are members of police force. Those six witnesses have corroborated each other and have averred regarding the presence of the motor-cycle at the spot on 19th October, 1978, and the purpose for which the Nakabandi was held and also the manner in which the appellant and the co-accused were apprehended. All of them categorically say that the appellant had taken out the revolver from his pant’s pocket, aimed it at sub-Inspector Satvir Singh and fired. Satvir Singh was not injured as the revolver misfired.
6. The appellant in his statement under S. 313 of the Criminal P.C. while completely denying the allegations of the prosecution, stated that he had been falsely involved in the case as he had written letters against the police to the Inspector General of Police. In his own words.
“Police had made false allegations against me because I wrote a letter against them to the Inspector General of Police in FIR No. 936/78 of Lahori Gate and FIR of 178 of Kashmere Gate. They wanted me to give evidence that Lalit Mohan has fired a shot on me. The bullet is still in my right chest. I did not agree with this plea of the police and since they troubled me I ran away from Willingdon Hospital, without the bullet having been taken out from my chest, where it still exists. The above FIRs are in the Court of Sh. M. L. Mehta, M.M. Delhi.”
7. The appellant herein also led one witness in his defense, namely, Krishan Lal Kohli. According to this witness he was admitted in the Willingdon Hospital in October, 1978. He found that the appellant, Om Parkash who was also in the same ward, had been admitted with a bullet injury. The witness had requested the doctor on duty to look after the appellant as the appellant happened to be his (witness’s) servant. It is further stated that Sub-Inspector Lachhman Singh of Police Station Kashmere Gate had come to interrogate the accused regarding the injury which he had received. The witness found that the police officer concerned was being harsh. He, therefore, requested him to be polite. This witness goes on with the story that thereafter the police officer had also treated him harshly. It was because of the harsh treatment of the police that the appellant ran away from the Hospital without having the bullet extracted.
8. In my view, the prosecution case that the two accused were arrested on 19th October, 1978, at about 9-40 p.m. near Arya Samaj Mandir, Chuni Mandi, Police Station Pahar Ganj, has been established. The plea taken by the appellant in defense that he had been falsely involved seems to me to be a figment of his imagination. The story that he was shot at; that he had bullet in his right chest but in spite of that injury he was able to go about and that when he made the statement on 15th January, 1981, he still was carrying that bullet seems to be false.
9. Mr. N. L. Kakkar, appearing amices curiae for the appellant, has contended that non-production of any public witness by itself shows that the allegations being put forward by the prosecution are not true. He submits that it is on the record that apart from the Arya Samaj Mandir there was also a Gurdwara nearby. The area from which the accused were apprehended is a thickly populated residential colony and it cannot be believed that in the month of October at about 9-40 p.m. no public man would be available at the spot. He further contends that the ingredients of S. 307 have not been made out. He submits that the allegation regarding the recovery of the weapon and the ammunition has also not been proved.
10. The contention that simply because no public person has been produced as a prosecution witness and as such it be held that the prosecution allegations are false, is to be rejected. It is the case of the Investigating Officer Purshotam Lal (PW) that he had requested the persons from the public but they declined to become witnesses. This fact is supported from the evidence of Ajit Singh P.W. 7.
11. When apprehended the appellant was found with a revolver which contained two cartridges. In my view this cannot be disputed.
12. What is to be seen, however, is whether the revolver was aimed and fired at Sub-Inspector Satvir Singh as alleged by the prosecution. In support of this aspect of the case of the prosecution, the witnesses say that they were able to hear the hammer striking the cartridge, while the revolver was aimed and fired at Sub-Inspector Satvir Singh. The revolver contained two cartridges in its chamber. On the of the cartridges, according to the finding of the Court below, does have a hold denoting that the pin of the hammer had struck it when the trigger was squeezed. There is however, some doubt whether that cartridge which was in the chamber of the revolver at the time it was seized was ever a ‘live’ cartridge. According to the report of the Central Forensic Science Laboratory the parcel containing the cartridges when opened by them was found to contain a loose lead portion and an empty cartridge apart from a live bullet. The recovery memorandum shows that then this cartridge with a pin hole was taken into possession the lead portion was found to be loose in the cartridge. It is possible that the lead portion got loosened completely by the time it reached the laboratory. There was a suggestion during cross-examination by the defense that the hole appearing in the cartridge, Exhibit P/2, was made after the revolver was unloaded. The attempt by the defense was that the story that the revolver was aimed and fired was not true. That suggestion by itself shows that the possession of the revolver, Exhibit P/1 and the bullets, Exhibits P/2 and P/3, is not being denied. It matters little whether Exhibit P/2 was ‘live’ or not. The other cartridge has been proved to be a live bullet.
13. Another fact, which Mr. Kakkar urged regarding this part of the prosecution was that the police officers concerned had given the story to the press which was widely published, claiming that they had shown extraordinary bravery in apprehending the robbers. Photographs of some of the police officials also appeared in the press. One such press report is on the record. It is marked A to C. The endeavor of Mr. Kakkar was to show that the officers concerned were in fact making up the whole story of this episode in which they had allegedly shown bravery so as to get awards from the higher authorities, which they did and also to blow their own trumpet. In view of the fact, however, that the cartridge Exhibit P/2 when recovered has been clearly shown in the recovery memorandum to be a loose cartridge, I do not consider that from that fact it is probable, to consider that an attempt has been made to make the hole in the cartridge itself or that the prosecution allegation that the appellant had aimed and fired the revolver at Sub-Inspector Satvir Singh is to be held doubtful. I, however, agree with Mr. Kakkar that there has been an attempt by the police officers to show that they have acted in an extraordinarily brave manner; in fact, in the recovery memorandum itself the sub-Inspector concerned claimed that he had shown lot of courage. In any case, this aspect has no bearing on the decision of this case.
14. There is no rival version given by the defense at all. As noticed above, in fact by the suggestion put in the cross-examination at least the possession of the revolver Exhibit P/1 is being admitted. In that view of the matter I do not see any reason whatsoever to disregard the testimony of the police officers that the revolver Exhibit P/1 was not only aimed but was fired at Sub-Inspector Satvir Singh. Fortunately, however, the revolver misfired and the officer concerned was saved.
15. The further argument of Mr. Kakkar that the offence, if any, is not covered by the ingredients of S. 307 but S. 308 of the Penal Code is liable to be rejected. It cannot be said in the present case that if Sub-Inspector Satvir singh had in fact been injured resulting in his death the accused could be said to be guilty of culpable homicide not amounting to murder and not murder. It was providence that saved Sub-Inspector Satvir Singh. The offence established is clearly that of an attempt to murder.
16. In view of my above discussion the conviction under S. 307 of the Penal Code is maintained.
17. Mr. P. S. Sharma, learned counsel for the State, was unable to show as to how the conviction for substantive offence of conspiracy was made out. There is no allegation whatsoever that the appellant along with his co-accused had conspired at any stage prior to the incident in question to attempt to murder Sub-Inspector Satvir Singh. The conspiracy if any may have been to snatch chains but that case was not the subject-matter in this prosecution. The conviction of the appellant under S. 120B of the Penal Code is thus set aside.
18. There is no manner of doubt that the appellant was in possession of revolver Exhibit P/1 and the ammunition Exhibits P/2 and P/3. I maintain his conviction under S. 27 of the Arms Act.
19. On the question of sentence it is to be noticed that the appellant has been in jail throughout from the date of his arrest on 19th October, 1978. He has already undergone rigorous imprisonment for over three years. In the circumstances of the case and particularly keeping in view the young age of the appellant, I reduce the sentence of four years’ rigorous imprisonment under Sections 307/34 of the Penal Code to the one already undergone. The sentence of two years imposed by the trial Court on the appellant for the offence under the Arms Act is however, maintained. He has undergone that sentence.
20. The appellant, if not required in any other case, he released forthwith.
21. Before parting, I must note that Mr. Sharma vehemently contended that this was not a fit case where the sentence should be reduced. According to him the appellant is a hardened criminal. He has not been able to show an iota of evidence from which it can be discerned that the appellant before me is a hardened criminal. It has not even been proved at the time when the sentence was awarded by the trial court that the appellant was a previous convict. The counsel’s reliance is one an observation of the trial Court that the accused were hardened criminals. This observation seems to be without any basis qua this appellant. It cannot be held that he is a hardened criminal. The learned Additional Sessions Judge was however, right in branding the co-accused as a hardened criminal. The father of the co-accused, Lalit Mohan Kohili, had appeared in the witness box as DW 1 on behalf of the appellant herein and had stated that his son i.e., the co-accused, was facing 40 cases and that during the pendency of this case, the co-accused had been sentenced to life imprisonment. Those allegations of the father of the co-accused do not, in any way, make the present appellant a hardened criminal.
22. With the above modifications, this appeal stands disposed of.
23. Order accordingly.