IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 176 of 1997 Reserved on : 15.07..2010. Decided on : 26.8.2010. ______________________________________________________________ State of H.P. …Appellant. Versus Harjinder Singh and another …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1 Yes. For the appellant : Mr. Rajinder Dogra, Addl. Advocate General with Mr. Anil Jaswal, Dy. Advocate General. For the respondent : Mr. Ashwani K. Sharma and Mr. Onkar Jairath, Advocates. _______________________________________________________________ V.K. Sharma, Judge. The present appeal at the instance of the State is against the judgment dated 27.6.1996 of the learned Additional Sessions Judge, Mandi, H.P., whereby the respondent herein, who shall here-in-after be called as ‘the accused’, was tried for the offence under Section 307 IPC and Section 27 of the Arms Act 1959 and was ultimately acquitted. 2. It shall be pertinent to notice at the very outset that though initially a charge-sheet was laid against the accused and co-accused Surinder Kaur under Section 307 read with Section 34 IPC and Section 27 of the Arms Act, but, later on the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 co-accused Surinder Kaur was discharged by the learned trial Court at the stage of consideration on charge under Section 227 Cr.P.C, vide order dated 10.9.1992, as is also apparent from the array of accused given in the impugned judgment dated 27.6.1996. However, since even despite that co-accused Surinder Kaur was arrayed as respondent No.2 in the present appeal, her name was ordered to be deleted vide an order of this Court, dated 29.7.1997. 3. The factual matrix of the prosecution case finds mention in the statement of the complainant, late Shri Mani Ram recorded by the police under Section 154 Cr.P.C (Ex.PW-4/B), dated 17.3.1990, who, by the time the case went to the Court for trial, had already died in the year 1991, as stated by his son PW-4 Davinder Kumar. The statement is in Hindi and when the same is translated into English, is to the following effect:- “stated that Dile Ram (PW-5 Dila Ram) resident of Baggi is my Kudam (Samdhi). His son Ravi Kumar has married Inderjit Kaur, who is daughter of ‘Sardars of Mandi’, last year. For the last about one week she has come from the house of her In-Laws to my house as a guest. Today, at about 1/1.15 PM Dile Ram came to my house and told that elder sister and elder brother of his daughter-in-law (Inderjit Kaur) had come to his house in the morning and that they may not come here to take her with them. In the meantime a lady wearing spectacles came down from the upper storey of my house. Dile Ram told that she is the elder sister of his daughter-in-law. My daughter-in-law Madhu and 3 Inderjit Kaur were present in the lower storey. A short while thereafter Inderjit Kaur was heard crying that “ Babuji bachao muje kheench kar le ja rahe hain”. On hearing this, Dile Ram immediately came down and went towards gali from where the cries emanated. I also came to the door at the staircase and saw that a Sardar was taking Inderjit Kaur towards the bazaar by pulling her. There was a revolver in his right hand, who fired at Dile Ram which hit him on the stomach. Dile Ram retraced his steps. In the meanwhile Davinder Kumar (PW-4) came there from the bazaar side to save Inderjitt Kaur, who was also fired at by the said Sardar, whose name was later on revealed as Harjinder Singh (accused), which hit him (Davinder Kumar) on his left wrist. As soon as Davinder Kumar tried to overpower the said Sardar (galay mein jhaphi mari), he again fired at him which hit him near the left shoulder. In the meantime, on hearing the sound of firing Lal Singh (PW-8) and Gian Chand (PW-6) came there and all of them overpowered the Sardar and I went towards bazaar to call other people. In the meantime a Sikh lady with spectacles whose name was revealed as Surinder Kaur (discharged co-accused), who had come down from the stairs of my house before the occurrence (sic. also came there). In the meanwhile many people from the bazaar came there and gathered around both of them and “in dono ko bazaar main gher liya aur josh mein aa kar dono ko jhakmi kiya”. In the meantime the police also arrived on the spot and arrested both of them and took them away in police vehicle. Both the brother and sister, i.e Harjinder Singh and Surinder Kaur led this murderous attack with a view to take away Inderjit Kaur in a pre-planned manner by bringing a revolver with them in which Dile Ram 4 and my son Davinder Kumar have been injured by bullets who have been sent to the hospital. Action may be taken against Harjinder Singh and Surinder Kaur in accordance with law.” 4. Consequently, F.I.R Ex.PW-12/A, dated 17.3.1990, was registered at Police Station, Sunder Nagar and the investigation commenced. 5. As per prosecution, three persons belonging to the complainant party, namely, Inderjit Kaur (not examined), PW-5 Dile Ram and PW-4 Davinder Kumar, were injured during the occurrence. They were sent for medical examination. 6. PW-1 Dr. Jaya Vaidya, had conducted medical examination of Inderjit Kaur vide certificate Ex.PW-1/D and had observed the following injuries on her person and had opined as under:- “1. Defuse swelling over lateral and dorsal aspect of left side. Tenderness on the lateral malleolus is present. Querry fracture of the Ankle joint. Advised x-ray left ankle joint. 2. A C.L.W. size 1cmx1/4 cm on the anterior medial surface of left forearm about 10 cm. approximate to wrist joint (left). Clotted blood was present around it. 3. Complains of pain on the right parietal region on examination tenderness was present over the parietal eminence right side. 4. An irregular abrasion size about 4 cmx2 cm on the anterior- lateral surface of left leg about 3 cm distal to tibial tuber sty. 5 Nature of injuries No. 2, 3 and 4 are simple. Injury No.1 was found grievous as per the x-ray report Ex.PW-1/B and x-ray skiagram Ex.PW-1/C. I have issued the M.L.C Ex.PW-1/D which is prepared and signed by me. Duration of these injuries was within 24 hours caused by blunt weapon. X-ray report Ex.PW-1/B has been given by Dr. Mrs. Usha Prashar with whose handwritings and signatures I am familiar as we have worked together at Sub Divisional Hospital, Sundernagar. She is presently not in a position to attend the court because of head injury and is admitted to I.G.M.C Shimla.” 7. PW-15 Dr. H.K. Abrol, had conducted medical examination of PW-5 Dila Ram and vide certificate Ex.PW- 15/A and had found the following injuries on his person and had opined as under:- “Injury No.1: An oval wound punctured in appearance measuring 1cm x ½ cm 1” below and right to xiphisternum, fresh bleeding present from the wound. A dark ring is present around the wound (collor or abrasion), edges of wound inverted. Injury No.2: A eliptical wound 1” in length 1cm. in breadth (at its voidest portion ), 3” below the right nipple in 9th Intercostal space. The edges of wound are everted. The intervening splace between the Two wounds i.e. injury No.1 and 2 is 2.5”. A proke could be easily inserted from wound No. (1) to (2) in horizontal direction. The patient was fully conscious. Plus was 84 per minute and Blood pressure was 200 x 140 mm of HG. 6 Opinion: Injury No. 1 and 2 are simple within six hours and kind of weapon used was firearm. I have issued the MLC Ex.PW-15/A which has been prepared and signed by me. I had referred the patient for x-ray of Chest. However, no fracture was detected. nor any bullet was found inside the part x.rayed as per the report Ex.PW- 15/B.” 8. PW-3 Dr. O.P. Mahendru had examined PW-4 Davinder Kumar and had noticed the following injuries on his person vide certificate Ex.PW-3/D and had opined as under:- “1. A round wound punctured in appearance measuring ½ cm x ½ cm on the extensor surface of left forearm at its lower third towards ulnarside. The edges of the wound is inverted and there is a dark ring around the wound (collar of abrasion. Fresh bleeding was present from the wound. There was marked red coloured haematoma 3 inch x 2 inch on the flexor aspect of left forearm towards radial side at its upper third. Advised x-ray left forearm x-ray left shoulder. 2. Minute elliptical wound ½ cm long 2 mm in width on the nape of the neck on left side. Fresh bleeding present from the wound. 3. An abrasion fusiform in shape 4 cm long ½ cm in width at its widest portion. The tail of the abrasions is directing towards the insertion of deltoid muscle on postero lateral aspect of left shoulder). There is a dark ring on the upper portion of abrasion. As per radiologist report pertaining to x-ray No.1 shows fracture of the ulna with multiple R.O. shadows in the bone and soft tissue. – x-ray no.2 is normal. In my opinion, injury No.1 is grievous. Injuries No.2 and 3 are simple. The duration of injury is within six 7 hours. Weapon used was firearm. X-ray report Ex.PW- 3/A has been given by Dr. Mrs. Usha Kiran Parshar with whose handwriting and signatures I am familiar as we have worked together as Medical Officer at Sub Divisional Hospital Sundernagar. She is presently not in a position to attend the court because of head injury and is admitted to I.G.M.C.Shimla. The skiagrams are Ex.PW-3/B and Ex.PW-3/C. M.L.C.Ex.PW-3/D was prepared by me and signed. Injuries No. 1 mentioned above could have been dangerous to life. The other two injuries were not dangerous to life because injury No.3 the bullet has just brushed over the skin. Had this bullet hit a vital part of the body it could have caused death.” 9. As already noticed, as per prosecution both the accused Harjinder Singh and the discharged co-accused Surinder Kaur had also suffered injuries at the hands of the enraged crowd, which had gathered on the spot scene soon after the occurrence. They were also got medically examined. 10. Accused Harjinder Singh was examined by PW-2 Dr. L.D.Vaidya, who had issued certificate Ex.PW-2/A detailing the following injuries and opinion:- “1. An obliquely placed lacerated wound of the size 5 x ½ cm present on the right side of forehead. Oozing from the wound was present. There was no injury to underlying bone. 2. Two obliquely placed reddish colour contusions present on the right side of back over scapular region crossing to the mid line. Sizes of these abrasions were 8 inch x ½ inch and 4 inch x ½ inch. 8 3. An abrasion of the size of 2 cm x 2 cm present on the posterior aspect of left elbow region. 4. Blunt trauma on the right side of front of chest over lower Ribs. There was no external injury. Injury to underlying bones or injury underlying viscera. 5. Blunt trauma right index finger with reddish colour contusion over its proximal phalanx. There was no injury to underlying bone. 6. ½ cm size abrasion just below the left lower lid. Nature of all injuries was simple having been caused with a blunt weapon within a duration of 24 hours. The patient was brought to the hospital by Parbhat Singh ASI. The patient had told me that he was assaulted on the said date at about 2.00 PM. Above injuries could be sustained in an assault. I have issued the M.L.C Ex./PW-2/A which is prepared and signed by me.” 11. Similarly, the discharged co-accused Surinder Kaur was examined by PW-1 Dr. Jaya Vaidya vide certificate Ex.PW-1/A detailing the following injuries and opinion:- “1. Swelling on the dorsum of nose with irregular contusion on it. Colour was reddish. Bleeding from the nose was present. Querry - fracture nasal bone for which x-ray of nasal bone was advised. 2. An irregular contusion on the forehead between the eye brows. Colour was reddish. 3. Swelling in the inner surface of upper lip. Colour was reddish. 4. Complains of pain on the gums upper central, incisors. Referred to Dental surgeon for opinion on the same. 9 5. A C.L.W size 1 cm x ½ cm on the right parieto occipital region with clotted blood around it. There was tenders and swelling around it. 6. Complains of pain in the right scapular region. On examination tenderness on the right scapular region was present. The nature of injuries 2, 3, 5 and 6 is simple. Duration within six hours. Weapon used was blunt. I have also seen the x-ray report Ex.PW-1/E in respect of Smt. Surinder Kaur. It has also been given by Dr. Mrs. Usha Prashar with whose handwriting and signatures I am familiar as we have worked together at Sub Divisional Hospital Sundernagar. No fracture was detected vide the said report.” 12. The revolver Ex.P-3 said to have been used by the accused during the occurrence was taken into possession by the police vide memo Ex.PW-4/A and sketch thereof was prepared which is Ex.PW-9/B. Maruti Van bearing registration No. CHK 9941 along with keys and documents and ladies’ purse containing nine live rounds and licence of .32 bore revolver bearing No. 105/M dt/86, valid upto 31.12.92, were also taken into possession from the said van vide memo Ex.PW-6/A. A bullet fired from .32 bore revolver was also taken into possession from the spot scene vide memo Ex.PW-9/A. 13. On production by the accused Harjinder Singh, his shirt and baniyan and dupatta of the discharged co-accused Surinder Kaur were also taken into possession, vide memo Ex.PW-9/C. 10 14. Out of the aforesaid nine live rounds of .32 bore revolver taken into possession by the police contained in a ladies’ purse vide memo Ex.PW-6/A, five rounds were sent for forensic examination to C.F.L Chandigarh after obtaining permission to open the parcel from the Sub Divisional Magistrate, Sundernagar, vide application Ex.PW-14/A. 15. The Investigating Officer also prepared site plan of the place of occurrence Ex.PW-16/A. The following clue materials - I(A) Shirt and (B) undershirt belonging to accused Harjinder Singh, (C) Dupatta (Scarf) of discharged co- accused Surinder Kaur, II(A) Shirt and (B) Sweater belonging to Davinder Kumar and III (A) Shirt and (B) Coat belonging to Dila Ram, were sent for examination to the Chemical Examiner to Govt. Punjab and report Ex.PX was obtained, which is to the following effect:- “Blood was found on exhibits No. I(A), and No. I(B) and pieces were sent to Serologist Govt. of India, Stains as indicated on the sketches overleaf were found on exhibits No. I(C), II(A), II(B), III(A) and No. III(B) and these marked ‘X’ were tested and found to be of blood and pieces there from were sent to Serologist Govt. of India.” 16. The revolver and live/fired bullets were also sent for examination to C.F.L Chandigarh and report Ex.PY was received, which revealed as under:- “O P I N I O N On thorough examination and comparison of class and individual characteristic marks of the test and crime 11 cartridge cases and bullets under the comparison micro scope I came to the conclusion that the crime cartridge cases marked C/1 to C/5, and the crime bullets marked B/1 to B/3 had been fired through the .32 revolver, S. No. AFT 1393, marked A, and they could not have been fired through any other firearm because every firearm has its own individual characteristic marks.” 17. On completion of investigation both the accused were sent up to face trial. On being charged, whereas accused Harjinder Singh pleaded not guilty and clamed to be tried, the co-accused was discharged, as already noticed. The prosecution evidence followed. It has examined as many as 16 witnesses. 18. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. According to him, no marriage ever took place between Ravi Singh and his sister. He has admitted that Dila Ram had followed them in a three wheeler. It is also admitted that he and Surinder Kaur had given their blood stained clothes to the police. The specific defence set up by the accused in answer to question No.28 of the statement is as under, however, he has not led any evidence in defence:- “I was going in the Van along with my sister Surinder Kaur from Mandi to Ludhiana and I was having all India Licence for Pistol which I had kept in purse in my van and when reached at Bhojpur (Sundernagar) I stopped Van as my sister Inderjeet Kaur was standing upon the road and I called her from the Van and she came down and was talking to me. In the meanwhile 12 Devinder Kumar, Virender Sood alias Billa, Mohinder Pal came and attacked me with Hockey, and gave beatings to me and my sister. They opened the Van took out purse, broke panes etc. and they tried to kill us and Revovler was in their hand and in the scuffle might have been fired.” 19. On conclusion of the trial, the accused was acquitted by the learned trial Court by extending benefit of doubt to him. Being aggrieved, the State has laid challenge to the impugned judgment dated 27.6.1996, which is supported by the accused. 20. We have heard the learned Additional Advocate General for the appellant-State, the learned counsel for the respondent-accused and perused the record. 21. The case set up by the prosecution is that whereas Smt Inderjit Kaur, had suffered injuries during the occurrence while being dragged by the accused, two other members of the complainant-party, namely PW-5 Dila Ram and PW-4 Davinder Kumar, were shot at by the accused with pistol Ex.P-3, thereby causing injuries to them. The injuries found on the persons of the accused and the discharged co-accused are sought to be explained as having been caused by the crowd that had gathered on the spot at the time of the occurrence. 22. It may be noticed at the very outset that two most material witnesses for the prosecution, namely the complainant, late Shri Mani Ram and Smt. Inderjit Kaur, were not examined during the trial. Whereas, the former who besides being the complainant was also an eye witness, had 13 already died before the trial commenced, as already noticed, the latter who was said to have suffered injuries during the alleged occurrence, was given up by the prosecution as having been allegedly won over by the accused. 23. On an appraisal of the evidence led by the prosecution, it shall not be unsafe to conclude that the same suffers from serious infirmities rendering the very genesis of the prosecution case highly doubtful. The reasons to arrive at this inference are stated here-in-after. 24. Firstly, the occurrence had taken place in a busy bazaar during the broad day light. However, neither any independent witness from the neighbourhood was cited nor examined. To the contrary the witnesses examined by the prosecution either belong to the complainant party or are their relatives or tenants. PW-5 Dila Ram, is father of Ravi Singh, who had allegedly married Inderjit Kaur, sister of the accused. However, the accused has denied that Inderjit Kaur had married Ravi Singh. The occurrence is stated to have started at the house of the complainant, late Shri Mani Ram, who was samdhi of PW-5 Dila Ram. PW-7 Smt. Madhu is daughter of PW-5 Dila Ram. She is married to Mahinder Pal, brother of PW-4 Davinder Kumar. PW-5 Dila Ram has stated during cross examination that on the day of occurrence (17.3.1990), his son Ravi Singh was already in police custody along with Bitta, younger brother of PW-4 Davinder Kumar, in a rape case under Sections 363, 366 and 376 I.P.C pertaining to Police 14 Station Balh. He has further stated that Virender Sud (PW-9) and Vikram Sud are the tenants of his son-in-law Mahainder Pal. He has also admitted that a case was registered against his son Ravi Singh, Virender Sud, Vikram Sud, Davinder Kumar and Mahinder Pal with regard to abduction of Inderjit Kaur from the school in a maruti van. PW-6 Gian Chand was working in the shop of Mahinder Pal. 25. The deposition of PW-6 Gian Chand is in utter contraction to the prosecution case. He has stated that on 17.3.1990, at about 1.15 PM, he was working in the shop of Mahinder Pal at Bhojpur. He heard 3-4 shots of firearm. Then he rushed to the house of Mahinder Pal. While he reached the court-yard of Mahinder Pal, he found that he had been injured with bullet. However, it is not the case of the prosecution that Mahinder Pal was injured during the occurrence and instead the injuries are said to have been suffered by PW-4 Davinder Kumar, who is brother of Mahinder Pal. Since this witness was working with Mahinder Pal, it cannot be said that it is a case of mistaken identity vis-à-vis Mahinder Pal and his brother PW-4 Davinder Kumar. 26. The prosecution story has become doubtful from the sequence of events as deposed by PW-5 Dila Ram, who has stated that the accused had come to his house at BSL Colony, on 17.3.1990, at 12.00 noon. However, according to his daughter PW-7 Smt. Madhu, her father (PW-5 Dila Ram) had 15 come to the house of her in-laws at about 11.00 AM. These timings do not reconcile with each other. 27. Still further PW-8 Lal Singh has further contradicted the prosecution version. He has deposed that when he and PW- 6 Gian Chand reached the spot, PW-4 Davinder Kumar had sustained a bullet injury on the left forearm. He was catching hold of the accused with that very arm by putting the same around his body. The accused was holding a pistol in his hand. He did not see anything else. He along with Gain Chand tried to snatch the pistol which was having two live cartridges, from the accused. While the accused was holding pistol, in his hand, Gian Chand and the witness fired two shots from the same in order to empty it. Then PW-4 Davinder Kumar snatched the pistol from the accused. However, PW-6 Gian Chand has an altogether different story to tell. He has stated that the accused was holding a pistol in his hand. The pistol was snatched from the accused by him and PW-8 Lal Singh. According to him, the pistol was empty when it was snatched by them. 28. Furthermore, PW-7 Smt. Madhu has stated during cross examination that on 17.3.1990, Mahinder Pal and PW-4 Davinder Kumar had gone to Mandi at about 9.00/10.00 AM in connection with their personal work and had returned after the occurrence had already taken place. If it was so, the very status of PW Davinder Kumar is falsified. 16 29. There is also no independent evidence with regard to the manner and circumstances under which the accused and the discharged co-accused had suffered injuries during the alleged occurrence. 30. Taking into consideration the fact that admittedly a case for abduction of Inderjit Kaur from the school in a maruti van had been registered against Ravi Singh, Virender Sud, Vikram Sud, Davinder Kumar and Mahinder Pal, the possibility of a tainted version having been put forth from the side of the complainant party can also not be ruled out in the facts and circumstances of the present case. 31. In view of the above, we see no merit in the present appeal and the same is dismissed being without any merit. (R.B. Misra) Judge. (V.K.Sharma) Judge. August 26 , 2010. Lsp*