IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 334/1995 Judgment reserved on 24.6.2009 Date of decision: July 7, 2009 State of H.P. …..Petitioner Versus Tilak Raj and another ……Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1yes . For the Appellant: Mr. R.M. Bisht, Deputy Advocate General, with Mr. Vikas Rathore, Deputy Advocate General. For respondents: Pt. Om Parkash, Advocate, for the respondent. Surinder Singh, J. Heard and gone through the record. The respondents were tried and acquitted for the offences punishable under Sections 307, 323 and 506 read with Section 34 of the Indian Penal Code and in addition, Tilak Raj respondent was also charge-sheeted for the offence punishable under Section 27 of the Indian Arms Act. In short the respondents were put on trial on allegations that on 8.2.1993 after return of Barat in village “Rajot”, marriage 1 Whether the reporters of Local Papers may be allowed to see the judgment ?yes - 2 - celebrations of the son of Shri Sher Singh were going on. Around 9.30 p.m. Yudhbir Singh (injured) was frying “chapattis” on the hearth. The music was being played by the band party. Respondent Baldev Singh suddenly appeared there and picked-up a quarrel with the band party. On this, PW Yudhbir Singh intervened whereupon Baldev Singh picked-up a wooden stick from nearby, gave its blow on the right arm of Yudhbir Singh and ran away. Simultaneously Tilak Raj his brother an officer of Delhi Police came there, gave a push to Yudhbir Singh and abused him. PW Karan Singh took Yudhbir Singh along with other members of his family to the ground floor of his house. It is alleged that respondent disconnected the electric supply fuse, thus there was a complete black out. Thereafter, respondent Tilak Raj brought the SBBL gun of his father Megh Raj and fired thrice. First two shots did not hit anyone but the pallets of the third shot hit the left arm of Yudhbir Singh. On account of this incident all the family members including Yudhbir Singh got scared and locked themselves inside the house throughout the night. Next day, Yudhbir Singh injured reported the matter to police. A case under - 3 - Sections 346, 323, 506 read with Section 34 of the Indian Penal Code and under Section 27 of the Indian Arms Act, was registered in Police Station Baijnath. Respondents were arrested. The police recovered the gun Ex.P4 and got Yudhbir Singh medically examined from the doctor on 9.2.1993 at 7.50 p.m. The doctor found following injuries on his person:- (i) An elliptical wound of entry 12 cms, above olecranon process oveer left upper arm on lateral aspect, measuring 1.2x0.5 cm with inverted margins, with contusion collar of 2 mm size, around the wound. Singeing of hair up to 1mm was present which did not bleed on touch. No. clinical evidence of fracture of underlying wound was present. (ii) Another wound of entry 4 cms below and medial to injury No. 1. Circular in shape, 0,5cm in diameter with inverted edge with contusion collar around with singeing of hair. Blood clots were also found present. The wound did not bleed on touch. No. associated marks of tear or breach over the clots were noticed.. (iii) A reddish contusion 5x2 cms in size over lateral aspect of right fore-arm, 2 cm below lateral condyl, almost rectangular in shape was also found which was tender to touch. There was no - 4 - clinical evidence of fracture of underlying wound. All these injuries were opined to be simple in nature caused within 24 hours. The certificate Ext.PA to this effect was issued by the doctor. The injuries found on Yudhbir Singh were of the gun pallets. The X-ray of the injuries was also taken by Dr. Yash Pal wherein radio-opaque shadows were seen in the left tissue which were suspected to be the pallets but nothing action was needed. Shirt Ext. P-1 and Sweater Ext. P-2 of Yudhbir Singh injured were taken into possession vide memo Ext. P-C. The police also recorded the statements of the alleged eye witnesses Durgi Devi, Ashwani Kumar and Karan Singh. The case property was deposited in the Malkhana. Later the gun as well as wearing apparels of the injured were sent for forensic examination. The prosecution sanction (Ext. P-F) under the Arms Act was obtained from the District magistrate. After receipt of the report of the forensic science, case was presented in the court for the trial of the respondents for the above offences. Respondents were accordingly charge- sheeted to which they pleaded not guilty and claimed to face the trial. - 5 - To prove its case, the prosecution examined the witnesses and respondents were also examined by the learned trial Court under Section 313 of the Code of Criminal Procedure. The respondents admitted their presence on both the days i.e., on 7/8.2.1993 in the marriage party in village Rajot. According to them, when feast was going on, band party was playing the music. The village girls were dancing, some boys were drunk and joined them in the dance. Thereafter they were alleged to have misbehaved with the girls. To stop them from doing any indecent activity Baldev Singh asked the band-party not to play the band, which annoyed the group of boys. In the meanwhile some one removed the eclectic fuse and lights went off and the entire area went under darkness. The boys who were drunk, took advantage of the darkness and started pelting empty bottles and burning fuel-woods towards the house of the respondents. Thus to bring the situation under control their father Megh Raj fired twice in the air by his gun but after sometime 3rd shot was heard. Subsequently it was learnt that Sher Singh husband of PW6 Durgi Devi was loading his muzzle loading gun. It accidentally went off and caused injuries to Yudhbir Singh who was standing nearby. - 6 - Respondents were called upon to enter into defence but no evidence in defence was led. At the end of the trial, respondents were acquitted by the learned trial court, inter alia, on the grounds that two shots were earlier fired by some one in the air only to create confusion but not to kill any one whereas few pallets of the 3rd shot which hit Yudhbir Singh, could not be established by the prosecution having been fired by Tilak Raj. The acquittal of respondents has been challenged in this appeal by the State. We have examined and re-appraised the prosecution evidence on record. PW-7 Yudhbir Singh is the injured complainant. Both the respondents are the real brothers residing in the vicinity of the complainant in village Rajot, where the marriage party was going on. As stated above Yudhbir Singh aforesaid was frying the “chapatis’ at 9.30. p.m. in the court yard of his sister’s house Durgi Devi and the band party was playing band. When alleged quarrel took place, respondent Baldev is stated to have given him the blow with stick and Tilak Raj pushed him aside, at that juncture according to PW7, he was saved by PW Karan Singh his brother –in-law and ran away from - 7 - the spot to take shelter in the house of Karan Singh. Karan Singh asked Yudhbir Singh to go to the first floor of his house along with other members of the family. Yudhbir Singh also stated that the accused had disconnected the electric fuse and respondent Tilak Raj had called for the gun, then he fired twice, which did not hit anyone. But the pellets of third shot fired by him from the first floor of his house, hit him on his left arm. PW-6 Durgi Devi wife of Sher Singh stated that Baldev picked-up quarrel with her brother Yudhbir Singh. He took the wooden stick from the spot and hit on the right arm of Yudhbir Singh, which ensued the scuffle. She further gave a different story saying that Tilak Raj respondent and Megh Raj both had come there and Megh Raj father of Tilak Raj had inquired about his gun. It was thereafter Megh Raj brought the gun and then handed it over to Tilak Raj and Tilak Raj fired the gun twice in the air but it did not hit any one. The third shot fired by him hit right arm of her brother. In cross-examination she stated that Tilak Raj was at a distance of 10-12 yards away from there. She was confronted with her statement Ext.DA recorded by the police under Section 161 Cr.P.C. wherein this fact was not recorded. Thus she improved her - 8 - version materially when examined in the court. She admitted that her husband has a muzzle loading gun. PW-8 Ashwani Kumar is another eye witness of the incident. He gave different story of the incident. According to him, respondent Baldev came in the court yard and started arguing with the band party. Yudhbir Singh told him not to indulge into the arguments with them. Thereafter Baldev Singh picked-up a stick and hit Yudhbir Singh. Thereafter Yudhbir Singh went to the house of his sister. He did not say anything about the arrival and presence of Karan Singh on the spot. He also did not say about the removal of the electric fuse by the respondents. According to him simultaneously when Tilak Raj came there on the spot with the gun, lights went off and he did not know who disconnected the fuse wire. He stated that Tilak Raj had fired twice in the air and third time towards the house of Durgi Devi and the pellets of third shot hit the right arm of Yudhbir Singh. In cross-examination he was confronted with his statement Ext.DB recorded by the police, wherein he did not state above the third fire from the gun by Tilak Raj. He did not know Tilak Raj earlier but saw him on that very day. However, he admitted that 4-5 boys were - 9 - dancing when band was being played. He also stated that when lights went off he locked himself in the room thereafter he heard the gun fire and it cannot be concluded that this witness had seen accused Tilak Raj outside while firing the gun. PW-14 Karan Singh has also made the similar statement that his wife’s brother Yudhbir Singh had asked Baldev Singh his nephew not to indulge into the arguments but he gave him the blow of a stick on his right hand and a quarrel ensued between them, it was he who intervened and took Yudhbir Singh inside his house and closed the doors. It was thereafter there was a gun fire. Two shots were fired in the air and the third shot came and hit Yudhbir Singh on his left arm. Yudhbir Singh at that time was in the upper story of the house of Sher Singh. In cross-examination, he could not say whether first two shots were fired to scare of the boys and to stop roudism, to bring situation under control. He also admitted that Tilak Raj respondent had sustained injury on his head and his feet were also burnt which fact was denied by PW Durgi Devi. Significantly, the prosecution did not explain his injuries nor he was medically examined. He admitted that due to electric - 10 - disconnection, there was complete darkness all around. Karan Singh further admitted that he had made a statement before the police that when band party was being played a scuffle ensued between the boys of village Chobin and respondents. In the meantime, electric supply was disconnected by some one and it became pitch dark. He along with Yudhbir were went inside and he did not see any person firing at them. He also admitted that Sher Singh had a “muzzle loading” gun. On analyzing the prosecution evidence and on its reappraisal, we find that the statement of the injured as well as the alleged eye witnesses are materially contradicting each other with respect to the firing of the gun shots by respondent Tilak Raj as alleged. On the top of it when it was complete dark out side then it was difficult to identify the person while firing the shots from the gun. It also emerges from the evidence that Sh. Megh Raj was having his licensed gun and he had sent for it. The prosecution could not prove that it was Tilak Raj who had fired the gun. The evidence on this aspect is quite contradictory and not inspiring confidence. The prosecution witness also admitted that two shots were fired in the air in same direction which could only be with - 11 - a view to create confusion and not to kill anyone. Prosecution though tried to prove that pallets of two gun shots had hit the walls but there is no recovery of pallets from the spot. It is also significant to note that the prosecution examined only interested witnesses in this case. Whereas it was a marriage party and many other respectable persons were also present but the choice of the prosecution fell only on the relations witnesses. Even their statement is not consistent. We have noticed the material contradictions as stated above and are not worth inspiring confidence. It has also come in the evidence that Sher Singh was also having a “muzzle loading” gun with him and the defence raised was that Megh Raj had sent for the gun and when the gun shots were fired in the air and not aimed at any particular person. Further PW-16 Shri G.S. Thakur, Inspector stated that the gun Ext. P- 4 and three spent cartridges Ext. P-5 to Ext. P-7 were produced by Megh Raj father of the respondents, which were taken into possession vide memo Ext. P-E. The gun along with empty and five live cartridges purchased under the permission of the S.D.M. Palampur were sent for examination to F.S.L.Junga. He further stated that two gun shots had hit the walls of the house of Sher Singh and the pieces of - 12 - earthen plaster aforesaid had fallen on the ground and it was taken into possession vide memo Ext. P-D. But admitted in his cross- examination that no pallets were recovered from the spot despite the search therefor. He also admitted that PW Karan Singh and Sher Singh both were married to the real sisters of the complainant and no independent witnesses except relations were examined by him during the investigation since presence of other persons did not come to his notice. It is pertinent to note that he has admitted in the cross-examination that the boys of Chobi village were present in the marriage ceremony even no efforts were made to record their statements to lend strength to the prosecution case. The live cartridges which were sent to the Forensic examination did not find mention in the report Ext. P-Y. It is not known as to how the examiner came to the finding that gun Ext. P-4 was in a working order without conducting the firing test. Further the sanction Ext. P-F alleged to have been obtained by the police on 31.4.1993 does not spell out which of the documents were examined by the District Magistrate at the time of according sanction. More particularly when the report of the Forensic science Ext. P-Y was issued on - 13 - 17.6.1993 and the District Magistrate had already accorded sanction in April 1993 i.e. two months prior to the issuance of the report of the forensic science which was an important document for his consideration. Therefore, in our considered opinion, it is quite prejudicial to the accused and sanction Ext. P-5 also lacks application of mind in absence of which charge under Section 27 of the Indian Arms Act also does not stand proved against Tilak Raj. In so far as threatening and giving beatings to the complainant Yudhbir Singh by respondent Baldev Singh is concerned, the witnesses have also sharply contradicted on this with each other. Some says that altercation was picked-up by Baldev respondent with the band party and the another says that when he was stopped by Yudhbir Singh, respondent Baldev Singh gave him the blow of stick picked-up from spot and third set of witnesses stated altercation took place with Yudhbir Singh which resulted into scuffle. There is no evidence with respect to the criminal intimidation, the injury with stick blow did not find mention in the M.L.C. of Yudhbir Singh and with respect to the offences under Section 323 and 506 read with Section 34 of the Indian Penal Code evidence is - 14 - discrepant and is also not worth inspiring confidence. In these circumstances on its re- appraisal we find the ocular version of the prosecution witnesses who are the close relatives, a suspect and the injury on the person of respondent Tilak Raj also remained unexplained which further compounds the suspicion about the incident which is differently stated by the witnesses. Thus, the case of the prosecution was rightly held to have not been proved beyond a reasonable doubt by the learned trial court. Therefore, we find no valid grounds to interfere with the impugned judgment of acquittal recorded by the learned trial court as such the appeal is dismissed. (Deepak Gupta), Judge. (Surinder Singh), Judge. July 7,2009. (cm/R)