IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. S-45-SB of 2007 Date of Decision : February 22, 2011 Vikas ….Appellant Versus State of Haryana …. Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr.T.S. Doabia and Mr.A.P.S. Deol, Senior Advocates with Mr. Arvind Singh, Advocate Mr. Raja Sharma, Assistant Advocate General, Haryana. T.P.S. MANN, J. The appellant, alongwith Mukhpal, Kapoor Singh and Rajiv, was tried for offences under Sections 148 and 307 IPC. The appellant was also tried for the offence under Section 27 of the Arms Act. Vide judgment and order dated December 21/23, 2006, Additional Sessions Judge (Fast Track Court), Bhiwani acquitted Kapoor Singh and Rajiv of the charges against them. Both, Vikas and Mukhpal, were convicted under Section 307 IPC. While Vikas was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.3,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months, Mukhpal was sentenced to undergo Criminal Appeal No. S-45-SB of 2007 -2- rigorous imprisonment for three years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two months. Vikas was also convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two months. Both the substantive sentences of Vikas were ordered to run concurrently. Aggrieved of the impugned judgment of conviction and sentence, Vikas filed the present appeal, whereas Mukhpal filed Criminal Appeal No.S-94-SB of 2007. Therefore, both the appeals are being disposed of by a common judgment. According to the prosecution, the incident in question had taken place on July 22, 2004 at 4.45 P.M. near the house of Kapoor Singh, father of Vikas appellant, situated in the city of Charkhi Dadri. Regarding the occurrence, statement Ex.PB was made by complainant Gulab Singh @ Billu before the police who mentioned therein that his fields were located at Loharu road. The adjoining land measuring 2800 sq. yards was purchased by Rajesh and others. On July 22, 2004, Vikas Mukhpal, Rajesh and others started raising wall thereon. The matter was reported to Police Station Sadar, Dadri. The police reached the spot. Complainant's brother Dharam Singh also made measurement at Criminal Appeal No. S-45-SB of 2007 -3- the spot and found that fifteen feet of his land had been encroached. He, alongwith Ranbir, Rajbir, Gaurav @ Monu and Sukhbir son of Om Parkash reached there on their tractor. Dharam Singh also reached there with the police. Later on, both the parties went near the house of Kapoor Singh in response to a telephonic message requiring them to visit the house of local MLA, which house adjoined that of Kapoor Singh. At this place, Vikas fired at them without saying anything which hit on the thigh of Sukhbir. Mukhpal also fired 5-6 shots whereupon everyone went here and there. According to the complainant, Vikas had fired at Sukhbir with an intention to kill him. On the basis of statement Ex.PB made by complainant Gulab Singh @ Billu on the aforementioned lines, FIR Ex.PB/1 was recorded at Police Station City Dadri. The police carried out the investigation by visiting the spot and prepared rough site plan. Statement of the witnesses were recorded. The accused were initially arrested under Sections 307/34 IPC and Section 25 of the Arms Act but these two Sections were deleted during the investigation. Upon completion of investigation, challan was presented against Vikas and Mukhpal for offences under Section 285 IPC and Section 27 of the Arms Act. Later on, Kapoor Singh, Rajiv and Rajesh were summoned as additional accused under Section 319 Cr.P.C. Summoning order passed qua Rajesh was, however, quashed by the High Court. The remaining four accused, namely, Vikas, Mukhpal, Kapoor Singh and Criminal Appeal No. S-45-SB of 2007 -4- Rajiv were charged for offences under Sections 148 and 307 IPC. In addition, Vikas was charged for offence under Section 27 of the Arms Act. All the accused denied the charges and claimed trial. In support of its case, the prosecution examined PW1 SI Kuldeep Singh, PW2 SI Hawa Singh, SHO PW3 ASI Kirori Lal, PW4 Girish Kumar, Draftsman, PW5 Dr. U.S. Disodia, PW6 Sukhbir, PW7 Gulab Singh, PW8 Sumir Kumar, PW9 ASI Mahender Singh, PW10 ASI Ashok Kumar, PW11 C. Rajpal and PW12 Dr. Sachit Sharma. When examined under Section 313 Cr.P.C., the accused denied the incriminating evidence put to them. They pleaded innocence. Accused Vikas and Mukhpal admitted their presence at the spot and stated that, in fact, complainant party was the aggressor party and had caused injuries to them. It was pleaded that Gaurav was armed with pistol and had fired shot upon them with intention to kill but the shot did not hit them. Accused Vikas stated that in order to save his and the life of Mukhpal, he fired two shots and, thereafter, they started fleeing away. Gaurav fired a shot upon him but it hit on the person of his own party- man Sukhbir and thereafter this false case was foisted. It was also pleaded that the police found that Section 307 IPC was not made out against them and that Kapoor Singh, Rajiv and Rajesh were not present at the spot. Accused Kapoor Singh and Rajiv pleaded innocence and stated that they were not present at the spot. They further took the stand Criminal Appeal No. S-45-SB of 2007 -5- that complainant party was the aggressor party and they had come near their house with pre-arranged plan to attack them. When called upon to lead defence evidence, the accused examined DW1 Dr. Anil Sharma, DW2 Dr. P.K. Anand and DW3 Dr. R.S. Punia, besides tendering photographs Mark-D1 to Mark-D5, negatives Mark-D6 to Mark-D10 of Santro car, medical record Mark- D11 to Mark-D20 and x-ray film of Vikas Mark-D21, besides copy of charge sheet of cross case as Ex.DX. After hearing learned counsel for the parties and going through the evidence brought on the record, the trial Court came to the conclusion that the prosecution had been able to prove its case against Vikas and Mukhpal for offence under Section 307 IPC and also against Vikas for offence under Section 27 of the Arms Act. However, the prosecution could not prove its case against accused Rajiv and Kapoor Singh for offence under Section 307 IPC. Both Rajiv and Kapoor Singh were, accordingly, acquitted of the charges whereas Vikas and Mukhpal were convicted and sentenced, as mentioned above. The ocular account of the occurrence had been brought on record by the prosecution by examining Sukhbir as PW6 and complainant Gulab Singh as PW7. In his statement, PW6 Sukhbir stated that about 1¾ years back at about 3.00 P.M. he was present at the house of his father's Bua (his father's father's sister). It was learnt that Vikas Criminal Appeal No. S-45-SB of 2007 -6- and others were raising a wall in their fields. He, alongwith his uncle Dharam Singh, Ranbir, Gulab and Gaurav went to Police Station Sadar, Dadri and moved an application. Police accompanied them to the place where Vikas and others were raising wall. Accused, namely, Vikas, Mukhpal, Kapoor Singh, Rajiv and one Rajesh were present there. Measurement was done and it was found that Vikas and others had encroached upon an area of 15 feet towards their side and the length of the said wall was 300 feet. Police gave instruction to the accused to stop construction and returned thereafter. His uncle also went with the police. A telephonic message was received from Kuldeep Singh, Personal Assistant to Ranbir Singh Mandola, the then MLA, at mobile phone of Vikas to the effect that both the parties should assemble at the house of Kapoor Singh as the house of Ranbir Singh Mandola was near the residence of Kapoor Singh. They went to the spot by adopting separate route while Vikas and others went straight. He, alongwith Ranbir, Gulab, Gaurav and Rajbir went in a tractor trolley and when they alighted from the tractor, the accused came there in a Maruti car. Kapoor Singh and Rajiv caught hold of him whereas Vikas fired a shot at him, in order to kill him, which hit on his private part. Accused Mukhpal fired 5-6 shots but those did not hit anybody. He was taken to PGIMS, Rohtak, where his statement was recorded by the police on the next day. Similarly, PW7 Gulab Singh deposed before the trial Court Criminal Appeal No. S-45-SB of 2007 -7- that their agricultural land was situated on Dadri-Loharu road towards southern side. On 22.7.2004, they learnt that accused Vikas, Rajiv, Kapoor Singh, Mukhpal and Rajesh were raising a wall. His brother Dharam Singh moved an application in the Police Station and police visited the spot. Vikas, Rajiv, Kapoor Singh, Mukhpal, Rajesh and 20- 25 other persons were present there and it was found that they had encroached upon an area of 15 x 300 feet and height of the wall was 3½ feet. He stated that the wall was constructed in their area and the accused did not stop construction despite being restrained by the police. The police returned back. His brother Dharam Singh also went back with the police. He further deposed that Vikas received telephonic message and informed them that the telephone was of Kuldeep Singh, Personal Assistant to Ranbir Singh Mandola, the then MLA, Badhra and it was desired that both the parties should come near the house of Kapoor Singh, where the house of Ranbir Singh Mandola was located. They went to the house of Kapoor Singh by adopting separate passage than the one adopted by the accused. On their reaching at the spot, Kapoor Singh and Rajiv caught hold of Sukhbir while Vikas fired shot upon Sukhbir which hit on his male organ and the shot went through and through. Thereafter, they all went here and there. Accused Mukhpal fired 5-6 shots, which did not hit anybody. On his statement Ex.PB, instant case was registered. He stated that the police colluded with the accused and challened Vikas and Mukhpal only for minor offences. Criminal Appeal No. S-45-SB of 2007 -8- PW5 Dr. U.S. Disodia deposed that he had medico legally examined injured Sukhbir on 22.7.2004 and found two injuries on his person. He proved his opinion Ex.PE/1 declaring that the injuries were caused by fire arm within a probable distance of 3 feet. In cross- examination, he stated that on the same day, he had medically examined Vikas and Mukhpal and found two injuries and four injuries, respectively on their person. He also stated that on the basis of x-ray report Ex.DE, he had declared injuries on the person of Vikas as grievous in nature. It is true that injuries were found on the person of Vikas and Mukhpal accused. From the side of the prosecution it has not been explained as to how they had received injuries. According to PW6 Sukhbir and PW7 Gulab Singh, they were empty handed and had not caused any injury to any of the accused. The presence of the injuries on the persons of Vikas and Mukhpal established that they were present at the scene of occurrence. According to Vikas and Mukhpal, the aggression had been opened by the complainant party when Gaurav, armed with a pistol, fired upon them with intention to kill them but the shot hit none. In order to save their lives, accused Vikas fired two shots and thereafter started running away. Gaurav fired a shot towards Vikas but the same hit on the person of Sukhbir. Under these circumstances, material question for determination is as to which party was the aggressor and which of the party acted in self defence. On the one hand Criminal Appeal No. S-45-SB of 2007 -9- the prosecution witnessed did not explain as to how injuries received by the accused whereas on the other, the accused did not come up with any explanation as to how and in what manner they received injuries and at the hands of whom. They did not substantiate their plea of self defence by examining any witness in their defence. Mere fact that they had given their version in their statement before the police and on its basis other party was challaned in the cross case is not sufficient to give credence to their version, especially when they did not bring the said version on record. Mere production of charge sheet Ex.DX in the cross case cannot help the accused as their version did not stand mentioned therein. From the evidence it stands established that PW Sukhbir had received fire arm injury on his person while accused Vikas and Mukhpal had received blunt weapon injuries. Both the parties were initially present in the field where accused Rajesh and others were raising a wall as they had purchased the land adjoining that of the complainant party. From the fields, the parties went near the house of Kapoor Singh to assemble at the house of the local MLA for resolving the matter. It was at that moment of time that all of a sudden a fight ensued between the parties. None of the parties has, however, been able to show that the aggression had been opened by the other side. None of the injuries found on both the sides could be caused by friendly hand. Therefore, it is not possible to determine with certainty as to which party Criminal Appeal No. S-45-SB of 2007 -10- had opened attack. Apparently it is a case of sudden and free fight. Therefore, the fact that the prosecution did not explain injury on accused cannot be termed fatal to the case. Once it is found to be a case of free fight in which both the parties sustained injuries, each accused would be liable for the specific act attributed to him. The shot was fired by Vikas at Sukhbir with an intention to kill him. The firing was from a close range and the injured was hit on his penis and the bullet thereafter exiting from right gluteal region. Similarly, accused Mukhpal had also fired 5/6 shots from the weapon held by him. Therefore, both of them had rightly been convicted for the offence under Section 307 IPC. In addition, Vikas appellant exposed himself to liability under Section 27 of the Arms Act as he used his licensed revolver of .32 bore in an unlawful manner. In view of the above, the conviction of Vikas and Mukhpal appellants was well merited. The appellants are facing the agony of criminal prosecution for the last more than 6½ years. They had also received injuries in the occurrence. Taking into consideration the totality of the circumstances, the Court is of the view that the sentences of imprisonment imposed upon Vikas and Mukhpal appellant are slightly on the higher side and need to be reduced. Resultantly, conviction of Vikas and Mukhpal under Criminal Appeal No. S-45-SB of 2007 -11- Section 307 IPC and in addition of Vikas under Section 27 of the Arms Act is maintained. Sentence of rigorous imprisonment for five years imposed upon Vikas appellant under Section 307 IPC is reduced to rigorous imprisonment for three years. The sentence of fine for the said offence, alongwith its default clause, is maintained and so also his imprisonment and fine alongwith its default clause for the offence under Section 27 of the Arms Act. His substantive sentences of imprisonment shall run concurrently. Similarly, sentence of rigorous imprisonment for three years imposed upon Mukhpal appellant under Section 307 IPC is reduced to rigorous imprisonment for two years. His sentence of fine alongwith its default clause is maintained. Criminal Appeal Nos.S-45-SB of 2007 and S-94-SB of 2007 are, accordingly, disposed of. ( T.P.S. MANN ) February 22, 2011 JUDGE satish