IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. S-1093-SB of 1998 Date of Decision : October 11, 2010 Rajender and another ....Appellants Versus State of Haryana .....Respondent CORAM :HON'BLE MR. JUSTICE T.P.S. MANN Present : Ms. Sharmila Sharma, Advocate Mr. Manish Deswal, Deputy Advocate General, Haryana T.P.S. MANN, J. This appeal is directed against the judgment and order dated 16.12.1998 passed by Additional Sessions Judge, Faridabad whereby the appellants were convicted under Sections 452, 307 and 323 read with Section 34 IPC and sentenced as follows :- Offence Sentence Under Section 452 read with Section 34 IPC : Rigorous imprisonment for three years each. Under Section 307 read with Section 34 IPC : Rigorous imprisonment for five years each. Under Section 323 read with Section 34 IPC : Rigorous imprisonment for six months each. Crl. Appeal No. S-1093-SB of 1998 -2- All the sentences were ordered to run concurrently. The period, for which the appellants remained in custody during investigation and trial, was ordered to be set off in view of the provisions of Section 428 Cr.P.C. According to the prosecution, on 22.9.1995, Shyamwati got recorded her statement Ex. PA with the police to the effect that on the last night at around 1 o'clock, she woke up on hearing noise of “Chor-Chor” raised by her son Rajpal. In the meantime, Lakhmi Chand, younger brother of her husband, also got up and caught one of the accused into his arms whereas the second accused inflicted injury on his head and third accused fired at him and then they fled away. Thereafter, many persons assembled at the spot. On the basis of the aforesaid statement, formal FIR Ex.PA/1 was registered against the accused. During the course of investigation, site plan was prepared and statements of witnesses were also recorded. The accused were arrested. The injured were got medico- legally examined. Upon completion of the investigation and presentation of the challan, followed by its commitment to the Court of Sessions, the appellants were charged under Sections 452 and 307 IPC, to which they pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 MHC Rajender Singh, PW2 Dr. P.K.Maggu, PW3 complainant Smt. Shyamwati, PW4 ASI Om Parkash, PW5 Crl. Appeal No. S-1093-SB of 1998 -3- Lakhmi Chand, PW6 Raj Pal and PW7 Sewa Ram, Medical Record Technician, Safdarjang Hospital, New Delhi. When examined under Section 313 Cr.P.C., the appellants pleaded that they were innocent and the case in hand had been foisted upon them due to party faction in the village. In defence, they examined DW1 Yashbir Singh. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court convicted and sentenced the appellants, as mentioned above. I have heard learned counsel for the parties and perused the evidence with their able assistance. The star witnesses of the prosecution are Shyamwati, her son Rajpal and brother-in-law Lakhmi Chand. All of them had woken up during the night and had seen the occurrence in which Lakhmi Chand had received injuries. While deposing before the trial Court as PW3 Shyamwati stated that when she was sleeping in her house and the time was about 1.00 a.m., she heard her son Rajpal uttering that thieves have entered the house. She got up and saw two persons having entered the house. She picked up a lathi and raised an alarm which attracted her brother-in-law Lakhmi Chand, who came with a torch and lathi. Said Lakhmi Chand caught hold of one of the assailants from his arms. One of the assailants gave an injury on the head of Lakhmi Chand. When the two assailants tried to run away leaving Lakhmi Chand there, one more assailant, who was standing outside, fired at Crl. Appeal No. S-1093-SB of 1998 -4- Lakhmi Chand, which hit his face. All the assailants, thereafter, ran towards the village. An attempt was made to find them out but of no avail. In her cross-examination, she stated that she could not tell the date, month or the year of the occurrence. Further, Lakhmi Chand had not told her about the culprits or their names. It was a dark night and there was no electric light and, therefore, she could not identify any of the culprits. She further stated that till the time she reached there alongwith a lathi, the assailants had already fled. She could not identify any of the culprits and, therefore, she was unable to state whether the appellants were amongst them or not. She also could not state as to who had fired the shot at Lakhmi Chand. Though she stated that there was no party faction in the village between Lakhmi Chand and the appellants yet she admitted that the Sarpanch of the village was elected from the family of the appellants whereas the one who lost the election belonged to the family of Lakhmi Chand. She went on to state that that it was her nephew Jasbir Singh who got defeated in the election. Similarly, PW6 Rajpal testified that on hearing noise on the ground floor of the house, he came down from the roof top and saw 3/4 persons trying to enter his house. On raising an alarm by him, the assailants tried to flee. As soon as the assailants reached near the gate of his house, he threw a flower pot on them but it did not hit anyone. Firing was resorted to by the assailants. Thinking that the fire was aimed towards him, he ducked and escaped being hit. In the meantime, many persons assembled at the spot. His mother Shyamwati and sister Bhuro also reached the spot. Crl. Appeal No. S-1093-SB of 1998 -5- Thereafter, he saw his uncle Lakhmi Chand lying injured on the ground having been hit by a bullet. He, however, could not state as to who had fired at his uncle Lakhmi Chand. In cross-examination, he could not state as to whether the appellants, who were present in the Court, were amongst the persons who had opened fire or injured his uncle Lakhmi Chand. When he had reached the spot, he found Lakhmi Chand lying there at a distance of about 30 yards from his house. Lakhmi Chand, who had received injuries in the incident in question had stepped into the witness-box as PW5 and testified that on 21.9.1995 at about 1.00 a.m., the appellants entered his neighbouring house, which belonged to Rajpal. He grappled with the appellants and wielded a danda. He also took appellant Rajender into his arms, whereas appellant Gajraj inflicted a danda blow on his head. One more assailant, whom he did not know, fired at him with a country made pistol. However, he could not identify him. He sustained splinters on his face with the result that he was unable to identify the two assailants and had become unconscious. He also deposed that at the time of the occurrence Rajpal and Shyamwati were also present. He also identified the appellants who were present in the Court. However, during his cross-examination, he changed track and stated that he did not know the assailants prior to the occurrence and had named them only on the basis of suspicion. Further, since he had become unconscious he could not identify the appellants who were present in the Court. Crl. Appeal No. S-1093-SB of 1998 -6- After going through the testimonies of the three star witnesses of the prosecution, this Court is of the considered view that the identity of the appellants being the assailants has not been established. Rather, there were some unknown persons who had resorted to the firing as a result of which Lakhmi Chand had received injury on his face, besides, a danda blow on his head. Further, possibility of the appellants who were subsequently named as accused on the basis of suspicion cannot be ruled out of the appellants being labelled as the assailants as they belonged to the family of the Sarpanch of the village who had defeated Jasbir Singh nephew of complainant Shyamwati during the election. Once the identity of the appellants is not established by the prosecution, the conviction of the appellants on the basis of the medical evidence as well as the evidence collected during the investigation of the case cannot be upheld. Resultantly, the appeal is accepted, impugned judgment of conviction and sentence is set aside and the appellants are acquitted of the charges under Sections 452, 307 and 323 IPC read with Section 34 IPC. The appellants are on bail. Their bail bonds and surety bonds shall stand cancelled. ( T.P.S. MANN ) October 11, 2010 JUDGE satish Satish Kumar 2014.04.22 16:43 I attest to the accuracy and integrity of this document Chandigarh