Criminal Appeal No. 566-SB of 1998 1 Criminal Revision No. 1028 of 1998 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 566-SB of 1998 Date of Decision: 10.08.2011 1. Randhir Singh alias Dhira, aged 42 years, Head Constable of Police, then posted at Police Post Kala Sanghian, son of Rachhpal Singh, resident of village Lakhan Kalan, District Kapurthala. 2. Sukhdev Singh, aged 45 years, S.P.O., then posted at Police Post Kala Sanghian, son of Shiv Singh, resident of village Kala Sanghian, District Kapurthala. ... Appellants Versus 1. State of Punjab. 2. Bikkar Singh son of Sh. Chanda Singh, resident of Kala Sanghian, Tehsil and District Kapurthala. ...Respondents Criminal Revision No. 1028 of 1998 Date of Decision: 10.08.2011 Bikkar Singh son of Sh. Chanda Singh, resident of Kala Sanghian, Tehsil and District Kapurthala. ... Revision-Petitioner Versus 1. Randhir Singh alias Dhira, aged 42 years, Head Constable of Police, then posted at Police Post Kala Sanghian, son of Rachhpal Singh, resident of village Lakhan Kalan, District Kapurthala. 2. Sukhdev Singh, aged 45 years, S.P.O., then posted at Police Post Kala Sanghian, son of Shiv Singh, resident of village Kala Sanghian, District Kapurthala. 3. The State of Punjab. ...Respondents Criminal Appeal No. 566-SB of 1998 2 Criminal Revision No. 1028 of 1998 CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL 1. Whether Reporters of local papers may be allowed to see the judgement? Yes/No 2. To be referred to the Reporters or not? Yes/No 3. Whether the judgement should be reported in the digest? Yes Present: Mr. R.S. Cheema, Senior Advocate, with Mr. Arshdeep Singh Cheema, Advocate, for the appellants, in Criminal Appeal No. 566-SB of 1998. Mr. T.S. Salana, Deputy Advocate General, Punjab. Mr. Vivek K. Thakur, Advocate, for the complainant/respondent No. 2. Mr. Vivek K. Thakur, Advocate, for the revision-petitioner, in Criminal Revision No. 1028 of 1998. Mr. R.S. Cheema, Senior Advocate, with Mr. Arshdeep Singh Cheema, Advocate, for respondents No. 1 and 2. * * * * M. JEYAPAUL, J. (ORAL) 1. Accused Randhir Singh and Sukhdev Singh, Head Constable and Special Police Officer concerned of the Police Post Kala Sanghian were convicted under Section 307 and Section 307 read with Section 34 of the Indian Penal Code respectively. Hence the present appeal by the accused/appellants. The complainant has preferred Criminal Revision No. 1028 of 1998 praying for enhancement of sentence and payment of compensation. 2. The brief case of the prosecution is that on the intervening Criminal Appeal No. 566-SB of 1998 3 Criminal Revision No. 1028 of 1998 night of 23/24.09.1992, at about 11.30 PM, PW7 Bikkar Singh and his daughter PW8 Inderjit Kaur were in sound sleep in the house located in the field outside village Kala Sanghian. Hearing the barking noise of the dogs outside the gate both of them woke up and rushed towards the gate. They saw these accused in Police uniform armed with stengun and rifle. Both of them made an attempt to drag PW7 and threatened him and his daughter to part with the valuables lying in their house. While PW7 was dragged by the accused, PW8 stepped forward to save him. Accused Randhir Singh fired from his stengun aiming at PW8 which hit on her left thigh and left leg. PW9 Darshan Singh the brother of PW7 who was the neighbour also came running. Both the accused ran away from the scene of occurrence with their respective weapons. 3. PW8 Inderjit Kaur was admitted to Primacy Health Centre, Kala Sanghian and thereafter she was shifted to Civil Hospital, Kapurthala. 4. PW3 Dr. Harjit Singh attached to Civil Hospital, Kapurthala examined her on 24.09.1992, at about 7.00 PM and found an inverted margin wound on the anterior surface of left thigh, an inverted margin wound on the posterior lateral surface of the left leg, an inverted margin wound on the inferior angle of patella of the left leg and an inverted margin wound on the posterior lateral surface of the lower leg. PW8 was found conscious. After regaining consciousness, PW7 lodged a complaint narrating the occurrence. PW2 Niranjan Singh, Secretary of the Communist Party of India, Kapurthala took him Criminal Appeal No. 566-SB of 1998 4 Criminal Revision No. 1028 of 1998 to the Senior Superintendent of Police, Kapurthala before whom PW7 narrated the whole occurrence. The Senior Superintendent of Police, Kapurthala visited the spot on 24.09.1992, at about 12.00 Noon and assured PW7 that he would take action against the Police officials. But no action was taken. Therefore, a private complaint was lodged by PW7. The learned Chief Judicial Magistrate, Kapurthala having entertained the complaint lodged by PW7 summoned both the accused for the charges under Section 307 and Section 452 of the Indian Penal Code and supplied copies to them and committed the case to the Court of the learned Sessions Judge, Kapurthala for trial. 5. On the side of the defence, as many as seven witnesses were examined. 6. The trial Court having heavily come down upon the style of investigation conducted by the Police officials based on the original complaint lodged by PW7 and relying upon the testimony of PW7, PW8 and PW9 in the background of the medical evidence referred to above returned a verdict of conviction as against these accused. 7. The learned Senior Counsel appearing for the appellants would vehemently submit that the names of these Police officials did not find a place either in FIR No. 45 dated 24.05.1992 marked as Exhibit DC or in the complaint dated 27.09.1992 marked as Exhibit DE submitted by PW8. Referring to the evidence of PW2 Niranjan Singh, he would submit that even according to the prosecution version as spoken to by PW2, PW7 had not shared information with respect to the Criminal Appeal No. 566-SB of 1998 5 Criminal Revision No. 1028 of 1998 identity of the Police officials who were allegedly involved in the occurrence. Referring to the judgement Exhibit PX relating to the excise case launched as against PW7 by the first accused Randhir Singh, the learned Senior Counsel would submit that the complaint was motivated and as a result of which these Police officials were implicated in this case. DW6 Assistant Sub Inspector Amrik Singh Chahal would depose that the FIR 45 which was originally lodged by PW7 was to be closed as two terrorists were involved in the occurrence and later on they had been killed in encounter. It is his grievance that the trial Court did not deal with the inquiry report Exhibit DD submitted by the Superintendent of Police (Operations), Kapurthala. It is his further submission that the complainant has come with a totally improbable case as against these two Police officials as though they made an attempt to commit robbery and in the said process they gave gun shot injury to PW8. 8. PW7 private complainant in this case had passed away. PW8 had sought for substitution. The original complainant PW7 was substituted by PW8 to contest this appeal preferred by the appellants herein. 9. The learned Counsel appearing for the complainant/revision-petitioner would submit that the inquiry report Exhibit DD submitted by the Superintendent of Police (Operations) cannot be referred to as a material before the Court of law. The original complaint giving out the names of these accused had been completely Criminal Appeal No. 566-SB of 1998 6 Criminal Revision No. 1028 of 1998 suppressed by the Police officials in order to save their own colleagues. The present private complaint lodged by PW7 gives out the names of these two Police officials and their role in making an attempt to commit robbery and causing lethal fire shot injury on the person of PW8. The Central Excise case had been booked only subsequent to the present case. Therefore, no motive can be attributed to PW7 for launching prosecution in a case of attempting to commit robbery as against the accused Police officials. It is his submission that the trial Court has rightly recorded conviction as against these Police officials as voluminous material is available on record to establish that only these two Police officials committed the offences charged as against them. 10. The learned Deputy Advocate General appearing for the State of Punjab would submit that the evidence of PW7, PW8 and PW9 in the background of the medical evidence would establish the case of the prosecution. Therefore, he would submit that no necessity has arisen to upset the well merited judgement of the trial Court. 11. The entire materials on record were thoroughly scanned by me in the background of the elaborate submissions made in this case. There is no dispute to the fact that there was an occurrence on 23/24.09.1992 during night hours in which two persons sporting Police uniform armed with lethal weapons made an attempt to commit robbery and caused gun shot grievous injury on the person of PW8. The question is who actually was the culprit who committed such a crime. The Court will have to find on a thorough analysis of the material on Criminal Appeal No. 566-SB of 1998 7 Criminal Revision No. 1028 of 1998 record whether the prosecution could establish that only these two Police officials were involved in the crime alleged as against them. 12. It is very important to refer to the evidence of PW2 Niranjan Singh. PW7 has come out with a categorical version that he narrated the entire story to his friend Niranjan Singh who was the Secretary of the Communist Party of India, Kapurthala. Both of them proceeded to the Senior Superintendent of Police, Kapurthala and narrated the entire occurrence to him. PW2 Niranjan Singh has deposed before the trial Court that it was true that PW7 disclosed about the occurrence that took place in the night on 23/24.09.1992, but PW7 had not whispered anything about the role of these two accused in the crime alleged to have been committed in front of the house of PW7. It is to be noted that PW2 Niranjan Singh was not at all cross-examined by the prosecution. The implication is that his testimony that PW7 never whispered anything about the role of these accused to him stands uncontroverted. I do not also find any reason to reject the evidence of PW2 who was holding a responsible post in the political party. Further, it is the admitted case that he was the close friend of PW7. Therefore, his testimony which is found to be believable would go to establish that PW7 had not disclosed the identity of these two Police officials as that of the persons who actually committed the crime to PW2. If at all PW7 and PW8 could identify these two accused as the Police officials who committed the crime on 23/24.09.1992, there was no reason for PW7 to suppress the identity of these two accused while narrating the whole Criminal Appeal No. 566-SB of 1998 8 Criminal Revision No. 1028 of 1998 story to his friend PW2. 13. In the light of the testimony of PW2, FIR No. 45 marked as Exhibit DC through DW4 Assistant Sub Inspector Dalbir Singh will have to be looked at. DW4 would depose before the trial Court that PW7 lodged a complaint at about 3.00 AM on 24.09.1992 and the formal FIR No. 45 which was marked as Exhibit DC was registered by DW4. In FIR No. 45, PW7 has not whispered anything about the identity of these accused. Of course, it is the version of PW7 that he, in fact, disclosed the names of these accused, but it was completely suppressed by DW4 Assistant Sub Inspector Dalbir Singh in order to save the skin of the Police officials. The above version does not have a leg to stand upon as the FIR 45 does reflect the version of PW2 Niranjan Singh. Further, within about few hours, the FIR 45 was registered by DW4. There would have been no chance for DW4 to cook up the First Information Report beyond the scope of the complaint lodged by PW7 before him. Therefore, I do not find any fabrication in the FIR 45 marked as Exhibit DC. Exhibit DC also would establish that PW7 had not divulged the names of these Police officials as the culprits in the crime alleged. 14. The Supreme Court in Dalip Singh Vs. State of Punjab, 1997(4), RCR(Criminal), 58 has observed as follows:- Coming now to the defence witnesses, we find that Swaran Singh (D.W.1) and K.S. Kailey (D.W.5), Deputy Superintendent of Police and Additional Deputy Superintendent of Police Criminal Appeal No. 566-SB of 1998 9 Criminal Revision No. 1028 of 1998 respectively of Ferozepur were examined to testify that they had perused the case diary prepared by the Investigating officer and interrogated some of the accused and other persons. On their such exercise they found that three of the accused, namely Dalip Singh (appellant), Shabeg Singh and Arjan Singh were innocent. In our considered view, the Designated Court ought not to have permitted the defence to adduce the above evidence as it is not legally admissible. In Vijender etc. vs. The State of Delhi, 1997(2) RCR (Crl.) 256: 1997(3) J.T. 131 a Bench of this Court, of which one of us was a member (M.K. Mukherjee, J.) while dealing with a similar question observed as under, 1997(2) RCR (Crl.) 256 (para 25):- "The result of investigation under Chapter XII of the Criminal Procedure Code is a conclusion that an Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance thereupon under Section 190 (1) (b) Cr.P.C. and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The trial Court is then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation of the result thereof." An inquiry conducted by an Investigating Officer which led to the finding that there was no case made out cannot be referred to as legal evidence before the Court of law. The materials collected by the investigating agency will have to be translated into legal evidence before the trial Court. Only then could it be relied upon by the Court of Criminal Appeal No. 566-SB of 1998 10 Criminal Revision No. 1028 of 1998 law. 15. The Superintendent of Police (Operations) had conducted inquiry on the basis of the complaint given by PW8. Based on the complaint Exhibit PE submitted by PW8 on 27.09.1992, it is to be noted that the said complaint given by PW8 after a lapse of three days from the date of occurrence also does not contain the names of these accused. It is not as if Exhibit PE was recorded by any of the Police officials based on the information furnished by PW8. It appears that PW8 herself had scribed it and submitted Exhibit PE before the authorities concerned on 27.09.1992. PW7 has been associated with the injured daughter PW8 who was taking intensive treatment in the Civil Hospital. PW7 would depose that PW8 regained consciousness only on 27.09.1992. But the medical records produced by PW1 Dr. Bharpur Singh Rai and PW3 Dr. Harjit Singh would go to establish that she was, in fact, conscious from day one when she was admitted to hospital for treatment. At any rate, even assuming for the sake of argument that she was unconscious and she could regain consciousness only on 27.09.1992, she would have come out with the complaint Exhibit PE only after consultation with her father PW7. Even otherwise, it is her testimony that she knew the identity of the second accused Sukhdev Singh. Therefore, there was no reason for not disclosing the names of these two accused in the complaint Exhibit PE which originated only on 27.09.1992. In my considered view, PW7 and PW8 were not aware of the real culprits who actually committed the crime at least till Criminal Appeal No. 566-SB of 1998 11 Criminal Revision No. 1028 of 1998 27.09.1992 when the complaint was given by PW8. 16. The Court is not concerned with the final decision arrived at by the Superintendent of Police (Operations). But the Court is concerned with the reference made as to the excise case which was launched by the first accused Randhir Singh as against PW7. There is no impediment to refer to the Excise case reference made by the Superintendent of Police (Operations) during the course of inquiry based on the records produced before him. 17. A judgement was produced before the trial Court and marked as Exhibit PX. That was a case bearing FIR No. 24 originated way back on 30.04.1992, about five months prior to the occurrence. It is very much relevant to refer to the observations made by the learned Chief Judicial Magistrate, Kapurthala in the said case. As regards the incriminating circumstances spoken to by the witnesses, PW7 who figured as an accused in the said excise case (respondent herein) set up a defence that he was arrested from his house in the presence of one Darshan Singh, but nothing was recovered from his possession. A false case was foisted on him was the final answer supplied by him under Section 313 of the Code of Criminal Procedure. The said case was decided, of course, in his favour on 05.07.1995 about three years after the date of occurrence of this case. One would expect PW7 to come out with an allegation that he was implicated in the said excise case well subsequent to the occurrence which took place at his house on 24.09.1992 in order to intimidate him. I find that there was no such Criminal Appeal No. 566-SB of 1998 12 Criminal Revision No. 1028 of 1998 allegation found in the statement given by him under Section 313 of the Code of Criminal Procedure. Within about ten days' time, the Superintendent of Police (Operations) also had noted the fact that the accused was booked as early as on 30.04.1992 in a case under the Punjab Excise Act. It is to be further noted that the learned Chief Judicial Magistrate, Kapurthala while disposing of the case in FIR No. 24 launched as against PW7 under the Excise Act had made an observation that the accused had suffered right from 1992 as he has been attending the Court since then. In the above facts and circumstances, I find that there is no substance in the defence set up by PW7 that a false case under the Punjab Excise Act was booked subsequent to the present case of robbery. The voluminous materials referred to above would go to establish that a case under the Punjab Excise Act had been booked as against PW7 five months prior to the present occurrence. 18. It is found that the first accused Randhir Singh had, in fact, booked that case as against PW7 under the Punjab Excise Act. The second accused Sukhdev Singh had come out with a version during the course of inquiry conducted by the Police officials that he had to wake up Randhir Singh who was, in fact, sleeping at Police Post Kala Sanghian, after hearing the report of gun fire. Therefore, PW7 and PW8 have every reason to implicate the accused Randhir Singh and Sukhdev Singh in this case of robbery after consultation having bought sufficient time. The private complaint was lodged only on 03.05.1993. Criminal Appeal No. 566-SB of 1998 13 Criminal Revision No. 1028 of 1998 Only in the present private complaint, the names of these accused figured as the persons who allegedly attempted to commit robbery and in the said process caused lethal gun shot injuries to PW8. The materials on record would go to establish that they had never divulged the names of these accused prior to the private complaint lodged by them. Therefore, I find that there is substance in the submission made by the learned Senior Counsel appearing for the appellants that the present complaint as against these two Police officials was motivated. 19. The trial Court Judge had very conveniently omitted to embark upon any discussion with regard to the Punjab Excise case booked as against PW7 who was, of course, acquitted under the judgement Exhibit PX. Had the trial Court taken serious note of such a judgement, it would have definitely come to a conclusion that the present private complaint had been lodged as against these accused on account of the motive harboured by PW7 and PW8. 20. DW4 Assistant Sub Inspector Dalbir Singh would depose that empty cartridges of AK-47 alone were recovered from the scene of occurrence. It is effectively submitted that during 1992, terrorist activity was on the rise. DW6 Assistant Sub Inspector Amrik Singh Chahal who finally dealt with the FIR 45 lodged by PW7 arrived at a decision that two terrorists who were involved in the occurrence were killed in encounter. 21. It is the case of the prosecution that these two Police officials armed with lethal weapons made an attempt to commit Criminal Appeal No. 566-SB of 1998 14 Criminal Revision No. 1028 of 1998 robbery and caused gun shot grievous injury to PW8. The farm house of PW7 and PW8 was located about 1 ½ kms away from the Police Post Kala Sanghian. In my considered view, it is quite improbable for the Police officials to come with lethal weapons to commit robbery of a farm house. Therefore, the case of the prosecution also suffers from improbability. 22. I find that the trial Court has not properly appreciated and evaluated the materials on record and has arrived at a wrong conclusion that the accused herein committed the offences punishable under Sections 307 and 307 read with Section 34 of the Indian Penal Code. The accused are entitled to acquittal. 23. In view of the above, the judgement of conviction and sentence passed by the trial Court as against these accused/appellants is set aside and both the accused are acquitted of the charges framed as against them. The bail bonds executed by them shall stand discharged. Consequently, the appeal is allowed and the revision-petition stands dismissed. 10.08.2011 (M. JEYAPAUL) Amodh JUDGE