Criminal Appeal No. 664-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 664-SB of 2000 Date of decision : November 14, 2011 Surinder Singh and others ....Appellants versus The State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. H.S.Gill, Senior Advocate with Mr. Manuj Nagrath, Advocate, for the appellants Mr. OP Gupta, Advocate also for appellant no. 12-Gian Singh Mr. Anil Kumar, Deputy Advocate General, Haryana Mr. Salil Bali, Advocate, for the complainant L.N. Mittal, J. (Oral) By this common judgment, I am disposing of three cases i.e. Criminal Appeal No. 664-SB of 2000 filed by 14 convicts Surinder Singh etc., Criminal Appeal No. 660-SB of 2000 filed by convicts Balbir Singh and Rameshwar Dass and Criminal Revision No. 1359 of 2000 filed by complainant Gurnam Singh, as all the three cases have arisen out of same Criminal Appeal No. 664-SB of 2000 -2- judgment dated 18.7.2000 and order dated 22.7.2000 passed by learned Additional Sessions Judge, Kurukshetra. Police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of 17 accused i.e. 16 convicts, (appellants of the two appeals) and one Teja Singh who died during the pendency of the trial. Out of the appellants in Criminal Appeal No. 660-SB of 2000, appellant no. 1 Balbir Singh has since died and consequently, the said appeal qua Balbir Singh has been dismissed as having abated on account of his death vide order dated 31.10.2011. Similarly in Criminal Appeal No. 664-SB of 2000, appellant no.3 Ram Singh has also since died and the said appeal qua him has been also dismissed as abated on account of his death vide order dated 31.10.2011. Prosecution case in brief is as under:- Gurnam Singh complainant lodged FIR alleging that he and some other persons are tenants over the disputed land measuring 24 acres in separate parcels. Complainant and his father Bachan Singh and brother Arjun Singh claimed cultivation over 8 acres land. Similarly cultivation of Joginder Singh and Sadhu over 4½ acres land, cultivation of Ishwar Singh and Jagir Singh over 5 acres land, cultivation of Bachna Ram and Riku Ram over 3 acres, cultivation of Jarnail Singh over 2 acres land and cultivation of Chhaju Ram over 1¾ acres land was alleged on 1/3rd batai under the owners. They had sown various crops in the said land which was standing at the spot. They had been paying batai to Aprajit owner till his death in Criminal Appeal No. 664-SB of 2000 -3- the year 1988. After his death, they stopped paying batai. They filed applications for correction of khasra girdawari entries in their favour which were pending when the occurrence took place on 19.5.1990. They had also filed a civil suit seeking injunction against dispossessing them from the disputed land and from alienating the same and stay order was granted to this effect. The said suit was also pending. On 8.5.1990, Rura Ram accused and his son had caused injuries to Gurdial Singh and his father Bachan Singh for this very land, for which police initiated proceedings under sections 107 and 151 Cr.P.C. against them. On 19.5.1990 at about 4.00 AM, the tenants of the aforesaid land including the complainant were sleeping in their houses. They heard noise of ploughing of the disputed land with 3-4 tractors. They also heard lalkaras being raised. The complainant woke up other tenants. All the accused armed with various weapons were found ploughing the disputed land. Out of them, Nishan Singh, Gian Singh and Teja Singh were armed with double barrel guns. They raised lalkara asking the complainant party not to come towards the disputed land failing which they would be shot dead. The complainant party told the accused that there was stay order in favour of the complainant party and therefore, the accused could not take possession of the land. However, the accused kept on ploughing the standing crops in the disputed land with two tractors and destroyed the standing crops. The complainant party seeing destruction of their crops proceeded towards the disputed land. Thereupon accused Nishan Singh, Criminal Appeal No. 664-SB of 2000 -4- Teja Singh and Gian Singh son of Rura Ram fired two shots each from their guns aiming at the complainant party. However, the complainant party saved themselves by lying down on the ground and then they ran towards the village due to fear of being further shot at by the accused. The accused also put on fire complainant's parali (residue of paddy crop), chaff and a hut having cot and bedding. These were burnt totally. On hearing noise, Lakhbir Singh, Chuhar Singh and Ranjit Singh PWs came to the spot and witnessed the occurrence. The complainant party hid themselves in their houses due to fear. On getting chance, the complainant went to Police station and made statement to the police about the occurrence. On its basis, FIR was registered and investigated. SI/SHO Sohan Singh along with other police officials reached the spot. Persons from the complainant party also came there on seeing the police. There were three tractors at the spot which were seized by the police. When the tractors were being seized, accused persons raised lalkara and challenged the SHO and asked him not to seize the tractors. SI Sohan Singh asked the accused to show documents of the land in their favour. However, instead of doing so, Nishan Singh accused fired two shots at SI Sohan Singh from a distance of one acre. SI Sohan Singh saved himself by hiding behind a pole. He also fired three shots in the air in self defence. SI Sohan Singh arrested nine accused from the nearby forest of Gulabgarh and seized some weapons from them. Two empty cartridges of .12 bore and three empties of .38 bore revolver were also seized from the spot. Criminal Appeal No. 664-SB of 2000 -5- Statements of witnesses were recorded. Rough site plan of the place of occurrence was prepared. Remaining accused were arrested on different dates. A double barrel gun of .12 bore with two live cartridges was seized from accused Nishan Singh. On completion of investigation, police presented report under section 173 Cr.P.C. for prosecution of all the 17 accused for various offences. Charge under sections 148, 307/149 and 436/149 IPC against all the accused and also under sections 307 and 353 IPC and section 27 of the Arms Act against Nishan Singh accused only was framed. All the accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined 12 witnesses. Gurnam Singh, Complainant, PW1, Lakhbir Singh, PW2, Ranjit Singh, PW6 and Inspector (previously SI) Sohan Singh, PW11 broadly stated according to prosecution version. SI Sohan Singh also stated about investigation of the case conducted by him. Head Constable Sahinder Pal, PW3 and Constable Hans Raj, PW4 tendered their affidavits being formal witnesses. Bhup Singh, PW5 (previously a Constable) stated that he had taken the parcels of case property and deposited the same in Forensic Science Laboratory (FSL), Madhuban without any tampering therewith. Ajmer Singh, PW7, Reader to SDM brought record of mutation no. 5016 and proved copy of order dated 14.8.1989 passed by Criminal Appeal No. 664-SB of 2000 -6- Collector. Kulwant Singh, Patwari, PW8 stated that he prepared scaled site plan of the place of occurrence. He also proved copies of jamabandis, mutations and khasra girdawari and also copy of report Ex. PR made by him. SI Ishwar Chander, PW9 stated that he arrested accused Phul Chand and Rameshwar Dass on 13.8.1990. Ashok Kumar, Photographer, PW10 proved photographs taken by him at the spot. SI Gian Singh, PW12 also partly investigated the case and stated about the same. The accused in their examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. It was broadly alleged that the disputed land was under self cultivation of Aprajit who died on 17.10.1988 and thereupon the disputed land measuring 24 acres was inherited by his widow Sobha, daughter Sawati and mother Shakuntla in equal shares. However, Bal Krishan Muztar, father-in-law of Sobha (father of Aprajit) was not in favour of inheritance of land by Sobha and Sawati and litigation started between them. Sobha agreed to sell four cares 6 marlas land each to accused Gian Singh and his father Rura Ram (Rur Singh) vide two agreements dated 17.5.1990 and delivered possession thereof to them and since then they were in possession of the disputed land. Criminal Appeal No. 664-SB of 2000 -7- Remaining 8 acres land of the share of Sawati was in possession of another Gian Singh accused son of Nasib Singh and accused Angrej Singh. Complainant party was never in possession of the disputed land in any capacity. They were set up as tools by Bal Krishan, father-in-law of Sobha. Some of the accused alleged that they have no concern with the disputed land. Various other pleas were also raised. In defence, the accused examined four witnesses. Banarsi Dass, DW1 brought ledger book of Mini Bank, Jyotisar and stated that complainant Gurnam Singh and his father Bachan Singh were defaulters of bank loan. Accused Rameshwar Dass was posted as Manager of the said Mini Bank. It was duty of Rameshwar Dass to recover the due amount from the defaulters even by their arrest. Birkha Ram, DW2 was Proprietor of gun house. He stated from his record that accused Gian Singh son of Arur Singh had deposited his double barrel gun with him on 13.12.1988 and had taken back the same on 2.7.1990. There were entries regarding this in his register. The register was checked by DSP on 3.11.1988 and again on 4.4.1990. Sar Jiwan Kumar, DW3, Document Writer proved both agreements and the corresponding receipts dated 17.5.1990 executed by Sobha in favour of Gian Singh accused and his father Arur Singh. Sobha Sharma herself appeared as DW4 and broadly stated according to defence version including aforesaid agreements and delivery of possession of the disputed land to the aforesaid accused. Criminal Appeal No. 664-SB of 2000 -8- Learned Additional Sessions Judge vide impugned judgment dated 18.7.2000 convicted all the 16 accused under sections 307, 436 and 353 read with section 149 IPC and also convicted Nishan Singh under section 27 of the Arms Act and vide order dated 22.7.2000, sentenced each of the 16 convicts to undergo rigorous imprisonment for five years and to pay fine of Rs 500/- and in default thereof, to undergo further rigorous imprisonment for three months under section 307 read with section 149 IPC; to undergo rigorous imprisonment for three years and to pay fine of Rs 300/- and in default thereof, to undergo further rigorous imprisonment for two months for offence under section 436 read with section 149 IPC and to undergo rigorous imprisonment for six months for offence under section 353 read with section 149 IPC and also sentenced convict Nishan Singh to undergo rigorous imprisonment for two years and to pay fine of Rs 200/- and in default thereof, to undergo further rigorous imprisonment for two months under section 27 of the Arms Act. However all the sentences of each convict were ordered to run concurrently. Feeling aggrieved, both the criminal appeals have been filed by the convicts whereas Criminal Revision No. 1359 of 2000 has been preferred by complainant Gurnam Singh seeking enhancement of sentences awarded to the convicts under sections 307 and 436 read with section 149 IPC. I have heard learned counsel for the parties at fairly good length and perused the case files with their assistance. Learned counsel for the appellants vehemently contended that Criminal Appeal No. 664-SB of 2000 -9- statements of all the four material witnesses Gurnam Singh, complainant, PW1, Lakhbir Singh, PW2, Ranjit Singh, PW6 and SI Sohan Singh, PW11 are contradictory on material points particularly regarding the number of shots fired by the accused and also the names of the accused who fired the shots. It was also pointed out that according to Lakhbir Singh, PW2, there was darkness at the time of occurrence being 4.00 AM and therefore, he could not identify any accused at that time. He also admitted in cross- examination that land of Sobha and Sawati has been purchased by accused Rura Ram, Gian Singh and Radha and is in their cultivating possession. It was also argued that according to SI Sohan Singh, weapons were recovered from the nine accused who were apprehended from the adjoining forest on the day of occurrence, but Ranjit Singh, PW6 stated that the accused while running away had left the weapons at the spot. SI Sohan Singh and some other witnesses also stated that three tractors were seized from the spot. Ranjit Singh, PW6 stated that only one tractor was left at the spot whereas the remaining two tractors had been taken away by the accused. It was also argued that nobody was hurt in the occurrence and therefore, the prosecution case is untenable. Counsel for the appellants also pointed out that according to Kulwant Singh, Patwari, PW8 who prepared scaled site plan, distance of point ‘C” depicted in the plan where the witnesses were present, was 6 acres i.e. 400 yards approximately from point ‘D’ where the accused were present and from where the accused fired shots. It was, thus, submitted that if shots were fired from distance of 400 yards, the same were Criminal Appeal No. 664-SB of 2000 -10- not likely to cause any harm to the prosecution witnesses much less cause their death. Reliance in support of this contention has been place on judgment of Bench of three Hon'ble Judges of this Court in Sarvinder Singh alias Chhinda & another vs. The State, 1977 CLR (Pb. & Har.) 77. Counsel for the appellants also canvassed that in suit filed by Sobha and Sawati against complainant Gurnam Singh and others, exparte temporary injunction was granted on 14.5.1990 i.e. before the occurrence and the same was affirmed by the civil court vide order dated 2.6.1990 Ex. DH thereby restraining the complainant party from interfering in possession of the said plaintiffs holding them prima facie to be in possession of the disputed land. The accused claimed possession from Sobha plaintiff no. 1 of the said suit vide agreements dated 17.5.1990 as admitted by Sobha Sharma, DW4. It was, thus, argued that at the time of occurrence, accused were in possession of the disputed land and complainant party was not in possession thereof. In this regard, it was also pointed out that in suit filed by complainant party, temporary injunction was declined by the civil court vide order dated 10.8.1989 Ex. DE and appeal preferred by complainant party against the said order was dismissed by appellate court vide judgment dated 14.3.1991 Ex. DF. It was, thus, emphasized that the complainant party was not in possession of the disputed land. Reference was also made to revenue record produced by both sides depicting the disputed land to be in self cultivation of the owner i.e. predecessor-in-interest of the accused. Criminal Appeal No. 664-SB of 2000 -11- It was also canvassed that accused Gian Singh son of Rura Ram had deposited his gun with gun house on 13.12.1988 and had taken back the same on 2.7.1990 as stated by DW2 Birkha Ram owner of the gun house from his record which was checked by DSP on 4.4.1990 i.e. during the said period and thus, gun of Gian Singh appellant no. 12 was not with him on 19.5.1990, the date of occurrence. The said gun was also not recovered by the police during investigation corroborating this version of the accused. It was also pointed out that Kulwant Singh, Patwari, PW8 admitted in cross- examination that he had recorded khasra girdawari entry after inspecting the spot. The said entry dated 3.3.1990 was regarding self cultivation of the owner i.e. in favour of predecessor-in-interest of the accused. He proved copy of report Ex. PR dated 12.3.1990 made by him regarding cultivation of the disputed land by complainant party, but the witness stated that original report was not there on the file nor it was entered in Roznamacha of the Patwari nor any notice was given to Sobha, DW4 (owner of the land) before making the said report. It was, thus, contended that said report Ex. PR made by the Patwari was false, having been made at the instance of the complainant party. It was also pointed out that compromise Annexure A/1 has been effected by complainant Gurnam Singh with appellant no. 2 Rameshwar Dass of Criminal Appeal No. 660-SB of 2000. It was also pointed out that Lakhbir Singh, PW2, Ranjit Singh, PW6 and SI Sohan Singh, PW11 have not even named the said convict Rameshwar Dass in their statements in the court nor he was holding any weapon according to Criminal Appeal No. 664-SB of 2000 -12- the prosecution version nor he was attributed any role in the occurrence nor he had any concern with the disputed land or with either party. On the other hand, it was pointed out that Rameshwar Dass was named as accused because he was Manager of the Mini Bank whereas complainant Gurnam Singh and his father Bachan Singh were defaulters of the said bank. On the other hand, learned State counsel and learned counsel for the complainant vehemently contended that complainant party was in possession of the disputed land as depicted by report Ex. PR dated 12.3.1990 made by Kulwant Singh, Patwari, PW8 after spot inspection and the accused wanted to take forcible possession of the disputed land from the complainant party. It was also pointed out that there was also stay order in favour of the complainant party issued prior to the date of occurrence. It was also submitted that Sobha Sharma, DW4 has stated that agreements executed by her in favour of Gian Singh and his father Rura accused were not acted upon. It was also pointed out that even SI Sohan Singh was fired at by the accused party. It was also argued that Sobha Sharma, DW4 admitted in her cross-examination that she had sold her share in the disputed land and not any specific khasra numbers out of the disputed land. It was accordingly argued that actual possession of the land was, therefore, not delivered to accused Gian Singh and his father Arur Singh. It was also contended that there was clear intention to kill the prosecution witnesses and SHO Sohan Singh when the accused fired at them. Criminal Appeal No. 664-SB of 2000 -13- I have carefully considered the rival contentions. On careful consideration of the entire material on record coupled with arguments advanced by both sides, taking holistic view of the matter, it is manifest that the prosecution has miserably failed to bring home the charge against any convict. The case hinges on the question as to which party was in possession of the disputed land at the time of occurrence. The onus was on the prosecution to establish that complainant party was in possession of the disputed land. However, the prosecution has miserably failed to establish the same. The whole emphasis on behalf of the prosecution was on report dated 12.3.1990, Ex. PR made by Patwari Kulwant Singh, PW8. However, less said the better about the said report and the testimony of Kulwant Singh Patwari. In fact, the entire litigation including the present case as well as civil suits filed by both parties and various applications for correction of khasra girdawari made by complainant party is result of the mischief played by Kulwant Singh, Patwari and subsequent connivance of SI Sohan Singh. Kulwant Singh, Patwari admitted in his cross-examination that he made entry in khasra girdawari after inspecting the spot. According to khasra girdawari entries produced by both the sides as well as according to jamabandi entries, the disputed land was in self cultivation of owner of the land i.e. predecessor-in-interest of the accused persons. Last entry in khasra girdawari was made on 3.3.1990. It is surprising that 9 days thereafter i.e. on 12.3.1990, Kulwant Singh made report copy Ex. PR that the disputed land had been cultivated by the complainant party. This report Criminal Appeal No. 664-SB of 2000 -14- is, thus, patently false and result of dishonest act of the Patwari in connivance with complainant party. In this regard, it is significant to notice that no entry of this report was made in Roznamacha by the Patwari although he would have done it if he had made the report on 12.3.1990 and if the report was correct. He also did not issue any notice to Sobha, who was owner of the disputed land, before making this report. On the other hand, this report is in complete contradiction to khasra girdawari entry made by same Patwari just 9 days before making this report. The original report has also not seen the light of the day. Consequently, this report is completely unreliable and incorrect and entire emphasis of the prosecution on this report is completely misplaced. On the other hand, in jamabandis for 1983-84 and 1988-89, produced by both parties in their evidence, owner of the said disputed land was in self cultivating possession. The land was admittedly mutated after his death on 17.10.1988 in favour of his wife Sobha, daughter Sawati and mother Shakuntla. Mutation thereof has also been produced in evidence. Entries in khasra girdawaries continued regarding self cultivation of the land i.e. cultivation by owners. Last khasra girdawari before the occurrence was made on 3.3.1990 and even after the occurrence, the entries continued in favour of the owners. From this revenue record which almost stands unrebutted, it becomes manifest that the complainant party never came in possession of the disputed land at any stage. There is also no documentary evidence of payment of Batai by complainant party to Aprajit owner of the disputed land till his death. There Criminal Appeal No. 664-SB of 2000 -15- is also no document regarding creation of any tenancy of the disputed land in favour of the complainant party as alleged by the prosecution. Moreover, temporary injunction was granted in favour of Sobha and Sawati owners by the civil court on 14.5.1990 i.e. before the occurrence and the same was affirmed vide order dated 2.6.1990. On the other side, temporary injunction sought for by the complainant party was declined by the civil court and their appeal was also dismissed by the appellate court. In this view of the matter also, it becomes manifest that accused (including their predecessor-in-interest) were in possession of the disputed land on and before the occurrence and complainant party was never in possession thereof. Emphasis was laid on temporary injunction obtained allegedly by the complainant. However, no such temporary injunction order has seen the light of the day. Oral statements of the witnesses regarding alleged temporary injunction in favour of the complainant party carry no weight when the documentary evidence which was readily available has been withheld. Thus examined from any angle, it is fully established that complainant party was not in possession of the disputed land. Consequently, the question of the accused damaging the standing crops of the complainant party in the disputed land or setting on fire their hut and chaff etc. lying in the disputed land would not arise. Similarly question of the accused party attempting to take possession of the disputed land from the complainant party would not arise because the complainant party was never in possession of the disputed land and rather accused and their Criminal Appeal No. 664-SB of 2000 -16- predecessors were in possession of the disputed land. Prosecution of the accused in this case is clear attempt to take possession of the disputed land by the complainant party by launching this prosecution with the help of Patwari Kulwant Singh, PW8 who made false report dated 12.3.1990 and with the help of police officials. Such attempt by revenue and police officials has to be deprecated strongly.