Crl.Appeal No.1009-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1009-SB of 1999 Date of decision: 5.7.2010 Varinder Singh and others ... Appellants versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Baljinder Singh, Advocate, for the appellants. Mr.Arshvinder Singh, DAG, Punjab. ... JORA SINGH, J. Varinder Singh, Sanjeev Kumar @ Sonu and Rajesh Kumar @ Raju were sent up for trail by the SHO of Police Station Khamano on the allegation that on 24.11.1996 at about 12.30 PM in the area of Village Ratton, Rajesh Kumar @ Raju had fired a shot hitting Beant Singh and thus committed offence punishable under Section 307 IPC. By the impugned judgment of conviction and order of sentence dated 13.10.1999 rendered by Additional Sessions Judge, Fatehgarh Sahib, appellants were convicted under Sections 307/34 IPC and sentenced to undergo RI for four years and to pay a fine of Rs.2000/-, in default of payment of fine, to further undergo RI for six months each. Prosecution story, in brief, is that Beant Singh, resident of Village Ratton, was doing agriculture work. Appellant Varinder Singh had six sisters, all were married and had six kanals of land each inherited from their parents. Beant Singh had purchased 1-1/2 killas of land in the name of his mother Manjit Kaur from Sukhdev Kumari and Nirmla Devi, sisters of Crl.Appeal No.1009-SB of 1999 2 Varinder Singh. On the basis of registered sale deed, mutation was sanctioned in the name of Manjit Kaur, mother of Beant Singh. Beant Singh was in possession of the land, but Varinder Singh and his sons were intending to take forcible possession of that land. On 24.11.1996, Beant Singh with his relative Darshan Singh was ploughing land with the help of tractor. Darshan Singh was driving the tractor, whereas Beant Singh was scattering barley seed in the land. At about 12.30 noon, Rajesh Kumar @ Raju armed with .12 bore single barrel gun came with his father Varinder Singh and brother Sanjeev Kumar @ Sonu armed with dangs. Varinder Singh had raised a lalkara exhorting Rajesh to fire a shot in order to teach a lesson for ploughing and sowing the land. Rajesh fired a shot hitting Beant Singh on his both thighs. On receipt of fire arm injuries, Beant Singh fell down. Sanjeev Kumar @ Sonu attempted to give a dang blow to Darshan Singh, but blow did not hit him. Darshan Singh and Prem Singh, who was passing by the side on the scooter, raised raula. Then, accused had fled away from the spot with their respective weapons. Prem Singh and Darshan Singh had shifted Beant Singh to Civil Dispensary, Khamano, where he was given first aid. After that, Beant Singh was referred to DMC, Ludhiana, where he was medico legally examined. Motive to cause injuries was that accused party was intending to take forcible possession of the land purchased by Beant Singh in the name of his mother Manjit Kaur. Varinder Singh and others had filed civil suit against his sisters and had lost the same. Inspector Harcharan Singh on receipt of wireless message from DMC, Ludhiana, went to the hospital to record the statement of injured. After getting opinion from the doctor regarding fitness of the injured to make a statement, statement of Beant Singh was recorded and the same was Crl.Appeal No.1009-SB of 1999 3 sent to the concerned police station after making endorsement. In view of the statement of Beant Singh, formal FIR was recorded. Clothes worn by the injured were collected from the doctor and the same were made into sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Inspector Harcharan Singh had gone to inspect the spot. Empty cartridge of .12 bore was lifted from the spot and the same was made into sealed parcel with seal bearing impression `HS'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. On 28.11.1996, Sukhdev Singh, Sarpanch of Village Raipur, had produced Varinder Singh and Sanjeev Kumar along with dangs before the Investigating Officer. Dangs were taken into police possession vide separate memo attested by the witnesses. Rajesh was arrested on 9.12.1996. In pursuance of disclosure statement suffered by Rajesh, .12 bore single barrel gun along with two live cartridges was recovered from the specified place. Gun and cartridges were made into parcel and the parcel was taken into police possession vide separate memo attested by the the witnesses. After completion of investigation, challan was presented in the Court. Accused were charged under Sections 307/34 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined PW1 Beant Singh, injured/complainant. He stated on oath that he along with Darshan Singh was present in the land purchased vide registered sale deed. They were ploughing the land with tractor. Darshan Singh was driving the tractor. He was sowing the land. Appellants came fully armed. Rajesh was armed with .12 bore single barrel gun. Other appellants were armed with sotis. Varinder Singh raised lalkara Crl.Appeal No.1009-SB of 1999 4 exhorting Rajesh to fire a shot in order to teach a lesson to him for ploughing and sowing the land. Then Rajesh fired shot hitting on his thighs. He was shifted to the hospital where he was medico legally examined. Motive to commit the crime was that appellants were intending to take forcible possession of the land purchased by him in the name of his mother. PW2 Darshan Singh is the eye witness. He has supported the version of Beant Singh by stating that in his presence injuries were caused to Beant Singh by the appellants. PW3 Prem Singh is the second eye witness. He has also supported the version of Beant Singh that in his presence appellants caused injuries by firing a shot with single barrel gun. PW4 Manjit Kaur stated that she had purchased 12 kanals of land from Nirmla Devi and Sukhdev Kumari vide registered sale deed, photostat copy of which is Ex.P3. She was in possession of the land purchased by her vide registered sale deed and was cultivating the same. PW5 Gurdip Singh stated that on 9.12.1996, he was with the police party. Raju was arrested by the police. Raju suffered disclosure statement after interrogation by the Investigating Officer and in pursuance of disclosure statement, he got recovered single barrel gun and two live cartridges along with arms licence. Memo was signed by him. PW6 Pal Singh, Clerk, Office of District Magistrate, Fatehgarh Sahib, stated that as per record, Varinder Singh had applied for extension of licence of single barrel gun and the District Magistrate had ordered extension of arms licence of Varinder Singh. PW7 Constable Inderjit Singh tendered his affidavit (Ex.P6). Crl.Appeal No.1009-SB of 1999 5 PW8 Dr. Rajneesh Sharma, DMC, Ludhiana, stated that Beant Singh was admitted in DMC, Ludhiana, on 24.11.1996 at 3.00 PM and was discharged on 6.12.1996. Beant Singh was medico legally examined on 24.11.1996. He had multiple small rounded punctured wounds about 1/2 x ½ cm size. Ex.PW8/B is the carbon copy of injury report. Pictorial diagram was prepared showing the seat of injuries. On 24.11.1996 as per request of Investigating Officer, Beant Singh was declared fit to make statement at 6.15 PM. After admission of Beant Singh, intimation was also sent to the concerned police station. Injuries on the person of Beant Singh were also got x-rayed, but no fracture was detected. PW9 ASI Surjit Singh stated that on 24.11.1996, he had joined police party headed by Inspector Harcharan Singh. Police party had gone to DMC, Ludhiana, to record the statement of Beant Singh. Application (Ex.PW8/C) was moved by Inspector Harcharan Singh requesting the doctor to give his opinion as to whether Beant Singh was fit to make statement or not. Doctor opined that Beant Singh was fit to make statement. In his presence, statement of Beant Singh (Ex.P1) was recorded. On 25.11.1996 again he was with the Investigating Officer and in his presence, place of occurrence was inspected. One empty cartridge of .12 bore gun was recovered from the spot and was made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo, which was attested by him. PW10 Dr. Charanjit Singh stated that on 24.11.1996, Beant Singh was brought to Civil Dispensary, Khamano. After first aid, patient was referred to DMC, Ludhiana. Intimation was sent to Police Station Khamano. Crl.Appeal No.1009-SB of 1999 6 PW11 Paramjit Singh, Halqa Patwari, prepared scaled site plan (Ex.PW11/A) at the instance of Darshan Singh. He further stated that khasra girdwari (Ex.PW11/B) was also prepared by him. PW12 Inspector Harcharan Singh is the Investigating Officer. PW13 Jawala Singh stated that sale deed (Ex.P3) was registered by him. Sale deed was executed in favour of Manjit Kaur by Sukhdev Kumari and Nirmla Devi. PW14 HC Jarnail Singh and PW15 HC Major Singh tendered their affidavits (Ex.P13 and Ex.P14), respectively. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused is as under:- “I am innocent. Myself and my brother Mohinder Singh have been cultivating the land of our family since the very beginning and as a family settlement my father had transferred 6 acres of land in the name of our mother Daulti Devi who had executed a will before her death in my favour and my brother Mohinder Singh. After the death of my mother, the complainant party got the sale-deed registered in connivance with the Tehsildar and in collusion with Prem Singh Sarpanch and Ranjodh Singh Sarpanch in anticipation of the order of the Court as we had filed a civil suit on the basis of the will after the death of our mother. The land of our father and mother was under our cultivation since the very beginning. Our mother was also residing with us before her death. We had sown wheat crop in Crl.Appeal No.1009-SB of 1999 7 our land and on the day of occurrence myself and my son Sonu were constructing ridges in the wheat field when Beant Singh alongwith Darshan Singh, Prem Singh Sarpanch of Maneli and Ranjodh Singh Sarpanch and two other persons came there and started ploughing our wheat field forcibly. My self and my son Sonu tried to stop them but they caused injuries to us with their dangs. They had two 12 bore guns with them. We raised alarm on which my son Raju came running from our house for our rescue. He challenged Beant Singh etc., not to cause injuries to us at which a person accompanying Prem Singh etc., having gun of Prem Singh fired hurriedly at Raju but luckily Raju was saved and the pellet hit Beant Singh on his thigh. We immediately went to the police-station and lodged the report but the police did not hear us, we were detained in the police station, our gun was taken from our house by the police on the next day. Our gun since the day of terrorism remained deposited with the police and it was returned to us shortly before the occurrence and it remained lying with the police and it was not in working order. All the Rajputs family of our village had left the village during terrorism and our is the only family still residing in the village. When we were produced in the Court of Ilaqa Magistrate, Fatehgarh Sahib, we showed our injuries in the Court and we were got medically examined through the Supdt. Jail under the orders of the Court. Case has been falsely planted on me.” In defence, Dr.D.S.Bhullar appeared and stated that on Crl.Appeal No.1009-SB of 1999 8 3.12.1996 at 11.25 AM, he had medico legally examined Varinder Singh and found the following injuries on his person:- “1. Abrasion 8x1.5 c.m. black brown semi heated on the right side of back, 12 cm from mid line/height of part of ilitic crest, lateral to mid-line. 2. Contusion, 14x8cm, brownish on the outer and anterior aspect of left arm starting from the elbow joint, tenderness was present, movements of elbow joint were painful, x-ray was advised. 3. Contusion 0.5x0.5cm blackish on the dorsal aspect of right hand, 5 c.m. proximal to metacarpo-phaleignal joint of index finger. 4. Swelling 3x3cm and tenderness on the dorsum of right hand, 4 cm from metacarpo-phaloignal joint of ring finger. X-ray was advised.” On the same day at 11.45 PM, he had medico legally examined Sanjeev Kumar and found the following injuries on his person:- “1. Abrasion 3.5x1cm blackish brown, semi healed on the outer part of right fore arm 10 cm below elbow joint tenderness of the outer surface of upper end of the right arm X-ray was advised. 2. Tenderness on the outer part of right fore-arm below joint X-ray was advised. 3. Contusion 3x2 cm blackish semi healed on lateral aspect of left knee joint. 4. Abrasion 2x0.5cm blackish semi-healed on the upper Crl.Appeal No.1009-SB of 1999 9 part of dorsum of left knee joint. 5. Lacerated wound 1x.25 cm blackish semi-healed on the tip of the thumb of right hand. 6. Contusion 0.5x0.5 cm blackish on outer aspect of right middle phalynex of index finger.” After hearing learned Public Prosecutor for the State, learned defence counsel for the appellants and from the perusal of the evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned counsel for the appellants, learned State counsel and gone through the evidence on file. Learned counsel for the appellants argued that according to khasra girdwari (Ex.PW11/B), Mohinder Singh and Varinder Singh were in possession of land bearing Khasra No.34/10/1. Varinder Singh had six sisters. Varinder Singh and his sisters had inherited 6 kanals of land each from their parents. Khata was joint. Land was in actual possession of the appellants. According to the complaint, 1-1/2 killas of land was purchased by Manjit Kaur from Sukhdev Kumari and Nirmla Devi, sisters of Varinder Singh, but Sukhdev Kumari and Nirmla Devi were not in actual possession of the land sold. Civil Suit was pending. No application for partition of land was moved to get the possession as per registered sale deed, if executed in favour of Manjit Kaur. In fact, appellants were in actual possession of the land. Opposite party came to take forcible possession of the land. Mohinder Singh and Varinder Singh were cultivating the land. Father of Varinder Singh had transferred 6 killas of land in the name of his wife Daulti Devi. Daulti Devi had executed a Will in favour of Varinder Singh and Mohinder Singh, but after her death, complainant party got Crl.Appeal No.1009-SB of 1999 10 registered a sale deed in connivance with the revenue authorities with collusion of Prem Singh, Sarpanch, and Ranjodh Singh, Sarpanch. Civil suit on the basis of Will was pending. On the date of occurrence, Varinder Singh and his son Sanjeev Kumar @ Sonu were in the fields and were constructing ridges. Beant Singh, Darshan Singh, Prem Singh, Ranjodh Singh and two other persons came and started ploughing the land forcibly. Varinder Singh and Sonu tried to stop them. Beant Singh and others had caused injuries to Varinder Singh and Sonu with dangs. Complainant party was having two .12 bore guns. Raula was raised, then Rajesh @ Raju also came to the spot. Another person accompanying Prem Singh and others, armed with a gun of Prem Singh, fired a shot at Rajesh @ Raju, but Rajesh had saved himself. Pellets had hit Beant Singh on his thighs. Report was lodged but no action. Gun was taken into police possession from the house of appellants and was not in working order. When the appellants were produced in Court, then they were medico legally examined as per order of the Court. Argued that according to prosecution story, only one shot was fired. Shot was not repeated. There was no intention to murder. Shot was fired from a distance of 6-7 karams. At the time of alleged occurrence, Varinder Singh was 58 years' old, Sanjeev Kumar was 21 years' old, whereas Rajesh Kumar was 22 years' old. Appellants were the first offenders. Varinder Singh and Sanjeev Kumar have already undergone one month and twenty seven days, whereas Rajesh Kumar has undergone three months and seven days. Occurrence was in the month of November, 1996. Impugned judgment is not challenged on the point of conviction. Requested that lenient view may be taken if the Court is of the opinion that injuries were caused by the appellants. Crl.Appeal No.1009-SB of 1999 11 Learned State counsel argued that Sukhdev Kumari and Nirmla Devi inherited land from their mother. They were in actual possession of the land. Civil suit was pending on the basis of Will but the Will set up by the appellants was not upheld. According to defence version, occurrence is an admitted fact. Presence of appellant at the time of occurrence is clear. Only dispute is whether Beant Singh received injuries when unknown person accompanying him fired a shot to eliminate Rajesh Kumar. Evidence on the file was rightly scrutinized. Undisputedly, Varinder Singh and his six sisters had inherited property from their mother. Sukhdev Kumari and Nirmla Devi are the sisters of Varinder Singh. Civil Suit was pending at the instance of Varinder Singh and others on the basis of Will. As per registered sale deed, Manjit Kaur purchased land from Sukhdev Kumari and Nirmla Devi. According to the appellants, they were in actual possession of the land, whereas allegation of the complainant party is that vendee was not in possession of the land purchased. PW11 Paramjit Singh, Patwari, stated that Khasra Girdwari (Ex.PW11/B) was prepared by him. In cross examination, admitted that place of occurrence was shown in Khasra No.34/10/1 and cultivation of the land in dispute was shown in the possession of Mohinder Singh and Varinder Singh sons of Ajmer Singh and Daulti Devi wife of Ajmer Singh. Khasra Girdwari (Ex.PW11/B) is for the period from 1993 to 7.10.1996. Occurrence was on 24.11.1996. Copy of jamabandi was not produced on the file. When khasra girdwari (Ex.PW11/B) is upto 7.10.1996 and civil suit on the basis of Will was pending at the time of occurrence, that means Daulti Devi had died before the present occurrence, but as per entries of khasra girdwari, Daulti Devi Crl.Appeal No.1009-SB of 1999 12 was also shown to be in possession of the land. When Daulti Devi had died earlier to the present occurrence but was shown in possession of the land at the time of occurrence, then it means that entries of khasra girdwari are apparently wrong. Something could be said if only Mohinder Singh and Varinder Singh would have been shown in actual possession of the land and not Daulti Devi because dead person cannot be in possession of the land. Khata was joint. There was no application for partition. But co-sharers can be in actual possession of the land on the basis of oral partition. Sometimes, all co-sharers are shown in actual possession of the land, but on the spot, they are cultivating land separately. If PW1 admitted that no application for partition was moved and khata was joint as per PW2 and no finding of the Civil Court that Varinder Singh and Mohinder Singh were in actual possession of the entire land, then on the basis of copy of khasra girdwari (Ex.PW11/B), nothing to opine that, in fact, appellants were in actual possession of the disputed number, i.e., Khasra No.34/10/1, where the occurrence had taken place. Suppose appellants were in actual possession of above said khasra number, where occurrence had taken place, then question is whether Rajesh Kumar had fired a shot hitting Beant Singh or some unknown person accompanying Beant Singh had fired a shot aiming his weapon towards Rajesh Kumar and Rajesh Kumar had saved himself and then accidentally shot fired had hit Beant Singh on his thighs. Defence version of the appellants is that on the day of occurrence, they were present on the spot. Beant Singh, Darshan Singh, Prem Singh and Ranjodh Singh with two other unknown persons came to the spot and started ploughing the land forcibly. Unknown person had fired a shot with the gun of Prem Singh hitting Beant Singh. That means, no dispute regarding presence of Crl.Appeal No.1009-SB of 1999 13 eye witnesses Darshan Singh and Prem Singh. No evidence on the file that Prem Singh was a licencee. Version of the appellants is that they had a gun. Gun was deposited with the police, but later on, same was collected from the police. Gun was not in working order. PW6 Pal Singh, Clerk, brought record and stated that Varinder Singh was a licencee and the licence was valid upto 11.8.1998. In defence, no effort was made to summon the record from the office of District Magistrate to show that Prem Singh was a licencee. If unknown person accompanying Prem Singh had fired a shot aiming the weapon towards Rajesh @ Raju, then no reason that shot had accidentally hit the thighs of Beant Singh. Beant Singh appeared as PW1 and suggestion was given that they had caused injuries to the appellants. Raju brought gun to scare the complainant party when complainant party was causing injuries to Varinder Singh and Sanjeev Kumar. In defence, Dr. D.S.Bhullar appeared but according to the doctor,Varinder Singh and Sanjeev Kumar were medico legally examined on 3.12.1996. All the injuries on their person were found to be simple in nature. Doctor admitted that possibility of the injuries present on the person of Varinder Singh and Sanjeev Kumar by fall against hard surface cannot be ruled out. If Varinder Singh and Sanjeev Kumar had received injuries in the same occurrence, then why they were medico legally examined on 3.12.1996. After receiving injuries, they should have approached the police or the doctor. There was no idea to remain silent for about 7 days. Prosecution was not required to explain the injuries on the person of Varinder Singh and Sanjeev Kumar because as per story, complainant party had not caused injuries to Varinder Singh and Sanjeev Kumar. When possibility of injuries on the person of Varinder Singh and Sanjeev Kumar being self suffered or Crl.Appeal No.1009-SB of 1999 14 self inflicted cannot be ruled out, then I am of the opinion that statement of Dr. D.S.Bhullar is without any evidentiary value. According to the defence version, Varinder Singh and Sanjeev Kumar were medico legally examined as per order of the Court, but Varinder Singh and Sanjeev Kumar were arrested on 28.11.1996. Dr. D.S.Bhullar has not stated a word that Varinder Singh and Sanjeev Kumar were medico legally examined as per order of the Court. Varinder Singh and Sanjeev Kumar were produced before the Investigating Officer by Sukhdev Singh, Sarpanch, on 28.11.1996. Sukhdev Singh was not produced in defence to state that he has not produced Varinder Singh and Sanjeev Kumar before the police. No question was put to the Investigating Officer that on 28.11.1996 when Varinder Singh and Sanjeev Kumar were produced before the police, then they were medico legally examined as per order of the Court. Rajesh was arrested on 9.12.1996 and as per disclosure statement suffered by him, he got recovered weapon of offence from the specified place. If Rajesh was armed with a gun and complainant party had caused injuries to Varinder Singh and Sanjeev Kumar, then he should have fired a shot. As per defence version, Rajesh brought gun from his house. When he had heard raula and had seen complainant party while causing injuries to Varinder Singh and Sanjeev Kumar, then there was no idea to remain silent, he should have fired a shot to scare the complainant party, but no injury on the person of Prem Singh, Ranjodh Singh, Darshan Singh or two unknown persons accompanying them. In fact, complainant party