Crl.Appeal No. 78-DBA of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 7.7.2011 (I) Crl.Appeal No.78-DBA of 2002 State of Haryana ... Appellant versus Lakhbir Singh and others ... Respondents (II) Crl.Revision No.596 of 2002 Amar Kaur ... Petitioner versus Lakhbir Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE S.S.SARON. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Sandeep Singh Mann, Sr.DAG, Haryana, for the appellant. Mr.Rakesh Nagpal, Advocate, for the petitioner in Revision No.596 of 2002 Mr.N.K.Sanghi, Advocate, with Mr.Aditya Sanghi, Advocate, for the respondents. ... JORA SINGH, J. Crl.Appeal No.78-DBA of 2002 by the State of Haryana and Crl.Revision No.596 of 2002 by Amar Kaur wife of Pritam Singh are directed against the judgment of acquittal dated 12.3.2001 passed by Additional Sessions Judge, Sirsa, in Sessions Case No.20 of 1994/2000 dated 7.2.1994/25.5.2000, arising out of FIR No. 221 dated 26.8.1992 under Sections 364/342/326/506/148/149 IPC, PS Rania. Story, in brief, is that Amar Kaur wife of Pritam Singh lodged report with the police that she is resident of Village Jiwan Nagar. Her Crl.Appeal No. 78-DBA of 2002 2 brother Ajit Singh is residing in Thailand and is owning land measuring 1-1/2 acres situated in the revenue estate of Village Jiwan Nagar. In the land owned by Ajit Singh, farm house was constructed, and in that farm house, her family members are residing. Her husband is the general attorney of Ajit Singh and in the land, paddy crop was sown. On the intervening night of 25/26.8.1992 at about 1.00 AM, Balwant Singh along with his sons Lakhbir Singh, Harbir Singh @ Ghola, Gurnam Singh, Satnam Singh @ Satta and Bhagwan Singh son of Jit Singh armed with lathis, gandasis and kirpans came. Electric light was on at that time. Balwant Singh raised lalkara as to why they are occupying the land, then they had caused injuries to Pritam Singh, Tarsem Singh and Tarsem Kaur wife of Tarsem Singh. Their hands and legs were tied with parnas. Raula was raised. Then her brothers-in-law Chhinder Singh and Balwinder Singh along with number of residents of Village Jiwan Nagar came at the spot. Respondents-accused raised lalkara to eliminate them. Then residents of Village Jiwan Nagar had left the place. After that, respondents-accused had also caused injuries to Chhinder Singh and Balwinder Singh and in defence, Chhinder Singh and Balwinder Singh had also caused injuries to Balwant Singh. After that, Chhinder Singh and Balwinder Singh had fled away from the spot. Later on, Pritam Singh, Tarsem Singh and her grand son Jaswant Singh, aged about 2-1/2 years, were kidnapped by the respondents-accused. Complainant was threatened not to report the matter to the police. In the morning of 26.8.1992, Amar Kaur along with Mangal Singh had gone to lodge report but near Village Mallekan, police party headed by ASI Rajinder Singh had met them. Then statement of Amar Kaur was recorded by ASI Rajinder Singh. After making endorsement, statement was sent to Crl.Appeal No. 78-DBA of 2002 3 the police station, on the basis of which, formal FIR was recorded. After the statement of Amar Kaur, police party along with complainant was going towards the place of occurrence, then IO received secret information that Pritam Singh and Tarsem Singh are being taken towards Balasar by some persons. After that, IO had gone towards Balasar side. On the katcha passage leading to Village Dudianwali, Pritam Singh and Tarsem Singh were found near the fields of Rattan Singh. Both were having injuries on their person. Site plan (Ex.PQ) of the place where Pritam Singh and Tarsem Singh were found present was prepared. Injured were shifted to Civil Hospital, Rania, for medico legal examination. ASI Rajinder Singh, IO, along with complainant had gone to the house of Balwant Singh, where Jaswant Singh, aged about 2-1/2 years, was found lying on a cot. Jaswant Singh was handed over to Amar Kaur. Site plan (Ex.PR) was prepared. After that, ASI Rajinder Singh had gone towards Jiwan Nagar and near Chowk of Jiwan Nagar, received wireless message regarding admission of Balwant Singh in Civil Hospital, Rania, and of Chhinder Singh and Balwinder Singh in General Hospital, Sirsa. ASI Rajinder Singh had gone to Civil Hospital, Rania. Application was moved requesting the doctor to report as to whether Balwant Singh was fit to make statement or not, but he was declared unfit to make statement. Tarsem Singh and Pritam Singh were also lying admitted in Civil Hospital, Rania, and their MLRs were collected. Statements of injured were recorded. After that, ASI Rajinder Singh had gone to General Hospital, Sirsa, where statements of Chhinder Singh and Balwinder Singh were recorded. After that, he had gone to the place of occurrence and after inspection, rough site plan (Ex.PS) with correct marginal notes was prepared. Three parnas (pieces of clothes) and Crl.Appeal No. 78-DBA of 2002 4 an iron sheet stained with blood were found lying at the spot. Parnas and iron sheet were sealed separately with the seal bearing seal impression `RS'. Sealed parcels were taken into police possession vide separate memo attested by the witnesses. Respondents-accused were arrested and after completion of investigation, challan was presented in Court. Respondents-accused were charged under Sections 323/324/325/364/506/148/149 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Dr. R.K.Bishnoi on 29.8.1992 had x-rayed the injuries on the person of Tarsem Singh and on 28.8.1992, on the person of Pritam Singh. PW2 Dr.R.P.Dahiya on 26.8.1992 had medico legally examined Chhinder Singh and found 8 injuries on his person. On the same day, he had also medico legally examined Balwinder Singh and found 5 injuries on his person. PW3 ASI Babu Lal collected copy of jamabandi (Ex.PE) from the Patwari and copy of general power of attorney (Mark-A). PW4 SI Het Ram after completion of investigation had prepared report under Section 173 Cr.P.C. PW5 Inderjit, Draftsman, had prepared scaled site plan (Ex.PG) with correct marginal notes. PW6 HC Rajinder Singh on receipt of ruqa had recorded formal FIR (Ex.PH/1). PW7 Constable Hari Ram had delivered special report to Ilaqa Crl.Appeal No. 78-DBA of 2002 5 Magistrate at about 6.00 AM on 26.8.1992. PW8 Dr.Y.K.Chaudhary on 26.8.1992 had medico legally examined Tarsem Singh and noticed 8 injuries on his person. Pritam Singh was also medico legally examined on the same day and 11 injuries were found on his person. On the same day, Balwant Singh was also medico legally examined and 8 injuries were noticed on his person. PW9 Amar Kaur is the complainant. She has reiterated her stand before the police. PW10 Pritam Singh, husband of the complainant, is the injured. He has also supported the version of Amar Kaur, complainant. PW11 SI Rajinder Singh is the Investigating Officer. PW12 Dr.S.K.Mohota on 26.8.1992 had medico legally examined Tarsem Kaur and noticed 14 injuries on her person. PW13 Inspector Abhey Singh had also partly investigated the case. After close of the prosecution evidence, statements of the respondents-accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the respondents-accused was that they are in actual possession of land. Tubewell connection is also in the name of Balwant Singh. In fact, complainant party had attacked respondents- accused and caused injuries to Balwant Singh. Opportunity was given to lead defence but no defence was led. After hearing learned PP for the State, defence counsel for the respondents-accused and from the perusal of evidence on the file, Crl.Appeal No. 78-DBA of 2002 6 respondents-accused were acquitted of the charge levelled against them. We have heard learned counsel for the appellant-State, learned counsel for the petitioner-complainant, learned counsel for the respondents- accused and gone through the evidence on the file. Learned State counsel and learned counsel for the petitioner argued that Ajit Singh is residing in Thailand. Amar Kaur is the real sister of Ajit Singh. Balwant Singh, respondent, is the brother of Ajit Singh but Ajit Singh had executed power of attorney in favour of Pritam Singh. Land owned by Ajit Singh is in actual possession of complainant party and in the land, farm house was constructed. Paddy crop was sown in the land and to take possession of the land forcibly, respondents fully armed came at about 1.00 AM on the intervening night of 25/26.8.1992. Injuries were caused to Pritam Singh, Tarsem Singh, Tarsem Kaur, Chhinder Singh and Balwinder Singh. In defence, Chhinder Singh and Balwinder Singh had caused injuries to Balwant Singh. Injuries cannot be self suffered or self inflicted. Amar Kaur and Pritam Singh appeared in Court and stated that respondents had caused injuries when they came to take possession of land owned by Ajit Singh, but evidence on file was not rightly scrutinized by the trial Court. When judgment is perverse and evidence on file was misread, then Appellate Court has the power to interfere. Defence version of respondents is that in defence, they had caused injuries to the complainant party but there is no cross case at the instance of Balwant Singh. In case police had refused to register cross-case, then Balwant Singh should have filed a private complaint but no complaint. Learned counsel for the respondents-accused argued that there is no dispute about the occurrence. In fact, respondents were in actual Crl.Appeal No. 78-DBA of 2002 7 possession of land. Complainant party came to take possession of land. In exercise of right of private defence, injuries were caused. Amar Kaur and Pritam Singh admitted that Ajit Singh is residing in Thailand for the last about 20-25 years. After that, they are in actual possession of land but there is no jamabandi or khasra girdwari on the file to show that complainant party is in actual possession of land. Electric connection is in the name of Balwant Singh. One criminal case was registered against Pritam Singh at the instance of Balwant Singh. Second case under the Arms Act was also registered against Pritam Singh. Pritam Singh filed suit for partition. In case complainant party was in actual possession of land, then there was no idea to file suit for partition. Dispute is regarding agricultural land. There was previous enmity amongst the parties. Due to previous enmity, false case was got registered simply to take possession of land, which was in actual possession of respondents. According to the prosecution story, entire land shown in the jamabandi (Ex.PE) is in actual possession of the complainant party. Respondents fully armed came and tried to take forcible possession of land. They caused injuries to the complainant party. In defence, complainant party had caused injuries to Balwant Singh, whereas defence version of the respondents is that Balwant Singh and his sons were in actual possession of land. Suit for partition was pending and there was a stay in favour of Balwant Singh. Complainant party tried to take possession forcibly, then in self defence, respondents had caused injuries. Now the question is whether in self defence, complainant party had caused injuries to the respondents or respondents in exercise of their right of private defence to protect possession had caused injuries to the complainant party. Crl.Appeal No. 78-DBA of 2002 8 Ex.PE is the jamabandi, which was collected by ASI Babu Lal from Patwari. As per jamabandi (Ex.PE), Ajit Singh and Balwant Singh are in actual possession of the land. No khasra number is in actual possession of Ajit Singh or Pritam Singh. Pritam Singh while appearing as PW10 in cross-examination admitted that he filed a suit for partition. Further he admitted that Ajit Singh was staying in Thailand for the last about 20-25 years. After Ajit Singh went to Thailand, he was cultivating the land which fell to the share of Ajit Singh. Entries of nehri girdwari are in his name. Electric connection was got installed by him but he admitted that he is not in possession of any bill. However, Amar Kaur while appearing as PW9 admitted that Balwant Singh and Ajit Singh have joint land measuring 2 killas. Ajit Singh also purchased half a killa of land separately. Balwant Singh was cultivating the joint land. There was a tubewell in the joint land. Electric connection was in the name of Balwant Singh. There was only one tubewell kotha in the land. If complainant party was in actual possession of the land owned by Ajit Singh, then copy of the latest jamabandi or khasra girdwari should have been produced on file to show that Pritam Singh was in actual possession of the land and as attorney of Ajit Singh, he has sown paddy crop in the land. When suit for partition was pending, then the complainant party cannot contend that there was partition of the land amongst the brothers, namely, Ajit Singh and Balwant Singh. Land where paddy crop was sown, fell to the share of Ajit Singh and as an attorney, Pritam Singh is cultivating the same. Ajit Singh has been in Thailand for the last about 20-25 years. Entries of nehri girdwaries are in his name as per Pritam Singh but no copy of khasra girdwari has been brought on the file. There is one electric motor in the land. As per Amar Kaur, connection was Crl.Appeal No. 78-DBA of 2002 9 in the name of Balwant Singh and he was cultivating the joint land, whereas Pritam Singh stated that he got the electric motor installed but he was not in possession of any electricity bill. They admitted that electric connection was in the name of Balwant Singh. If the electric connection was obtained by Pritam Singh and he was operating the electric motor, then he should have produced the electricity bill on record but no bill has been got produced on the file. ASI Rajinder Singh, IO, admitted that dispute was regarding 1-1/2 acres of land. Balwant Singh was in possession of the land. There was an electric motor of Balwant Singh and he was operating the same. No independent witness came forward to state that the joint land was in actual possession of the complainant party. All this shows that the joint land is in the actual possession of Balwant Singh and his sons. They are operating the electric motor. Pritam Singh is one of the injured witnesses and as discussed earlier, there is a dispute regarding possession of joint land. In cross- examination, Pritam Singh admitted that he was challaned under the Arms Act but he was not in possession of any pistol, whereas his wife Amar Kaur while appearing as PW9 admitted that criminal case under the Arms Act was registered against her husband for keeping an unlicenced pistol. Pritam Singh had kept a pistol because he felt danger to his life at the hands of respondents. It is further stated that Balwant Singh filed a complaint against Pritam Singh. Pritam Singh while appearing as PW10 also admitted that the theft case was registered against him at the instance of Balwant Singh. This goes to show that there was previous enmity amongst the parties. Respondents were in actual possession of the land. Ajit Singh had Crl.Appeal No. 78-DBA of 2002 10 executed a power of attorney in favour of Pritam Singh. Mark-A is the copy of power of attorney but there is not a word in Mark-A that Ajit Singh was in actual possession of the land and that land is to be cultivated by Pritam Singh. Original power of attorney has not been brought on the file. In case Ajit Singh had executed a power of attorney in favour of Pritam Singh, then the question remains as to whether Pritam Singh was in actual possession of the land, i.e., the share of Ajit Singh without partition. Registration of criminal case against Pritam Singh at the instance of Balwant Singh shows that complainant party had a motive to implicate the respondents because without partition, they had intended to take possession of the land, which was in actual possession of the respondents. Motive is a double edged weapon but when respondents were in actual possession of the land and as per the stand of Pritam Singh, suit for partition was pending, then respondents had no motive to cause injuries. On the other hand, complainant party had the motive to cause injuries because they had intended to take actual possession of the land without partition. Occurrence in the case is an admitted fact but the only dispute is whether respondents in exercise of right of their private defence to protect property had caused injuries to the complainant party or complainant party had caused injuries to the respondents when they intended to take actual possession of land. As per Ex.PH, i.e., statement of complainant, respondents armed with lathis, gandasis and kirpans had caused injuries to Pritam Singh, Tarsem Singh and Tarsem Kaur. On hearing raula, Chhinder Singh and Balwinder Singh came at the spot, then respondents had also caused injuries to them. As per Ex.PH, number of other villagers also came at the spot but Crl.Appeal No. 78-DBA of 2002 11 when lalkara was raised by Balwant Singh, then they left the place of occurrence. After that, Chhinder Singh and Balwinder Singh in defence had caused injuries to Balwant Singh. Chhinder Singh, Balwinder Singh, Tarsem Singh and Tarsem Kaur were not produced for the reasons best known to the prosecution. In Court, Amar Kaur while appearing as PW9 stated that Gurnam Singh gave a kirpan blow hitting on the person of Tarsem Singh. Second blow was given to Tarsem Kaur. Satnam Singh and Ghola son of Balwant Singh gave blows to Tarsem Singh. Balwinder Singh was also assaulted. Her grand son was taken away by the respondents. A raula was raised, then number of persons from the village came along with Chhinder Singh and Balwinder Singh. Respondents also gave injuries on the person of Chhinder Singh and Balwinder Singh. After that, out of fear, Chhinder Singh and Balwinder Singh had fled the spot. Her son Tarsem Singh and husband Pritam Singh were taken away by the respondents. Not a word was stated that in defence, Balwinder Singh and Chhinder Singh had caused injuries on the person of Balwant Singh. In cross-examination, Amar Kaur stated that no injury was received by Balwant Singh. Pritam Singh stated that respondents with their respective weapons gave injuries to him, his son Tarsem Singh and daughter-in-law Tarsem Kaur. After that, they were tied with turbans and parnas. Raula was raised by Amar Kaur and on hearing raula, number of villagers, including Amrik Singh, Inder Singh, Buta Singh, his brothers Chhinder Singh and Balwinder Singh came at the spot. After leaving them, respondents started giving injuries to his brothers. Out of fear, his brothers ran towards the dera of Joginder Singh. He along with his son Tarsem Singh and grand son Jaswant Singh were kidnapped by the respondents and taken in a jeep. They Crl.Appeal No. 78-DBA of 2002 12 were brought towards Balasar. He along with his son Tarsem Singh was thrown out from the jeep near Balasar. But in cross-examination it is admitted that 10/12 more assailants were with the respondents but Amar Kaur does not make a mention about 10/12 other assailants. According to the complainant and Pritam Singh, 5 persons were injured, i.e., Pritam Singh, Tarsem Singh, Tarsem Kaur, Balwinder Singh and Chhinder Singh but only Amar Kaur and Pritam Singh appeared as PWs. Other injured were not examined by the prosecution. According to the complainant, no injury was caused on the person of Balwant Singh but as per Ex.PH, Balwinder Singh and Chhinder Singh in defence had caused injuries on the person of Balwant Singh. If in defence, injuries were caused by Balwinder Singh and Chhinder Singh on the person of Balwant Singh, then in Court, Amar Kaur and Pritam Singh should have stated that in defence, they (Balwinder Singh and Chhinder Singh) had caused injuries on the person of Balwant Singh. They rather stated that on hearing raula, Chhinder Singh and Balwinder Singh came there. Then after leaving the complainant party, respondents had caused injuries on the person of Chhinder Singh and Balwinder Singh. After that, out of fear, they (Chhinder Singh and Balwinder Singh) had fled away from the spot. As per Ex.PH, respondents came and caused injuries to the complainant party. Pritam Singh, Tarsem Singh and Jaswant Singh were kidnapped. Pritam Singh and Tarsem Singh were released on the way. Jaswant Singh was recovered from the house of Balwant Singh. There is not a word in Ex.PH that respondents had also brought one tempo and their luggage was loaded in that tempo. Pritam Singh in cross-examination stated that after causing injuries, respondents had loaded their luggage in the Crl.Appeal No. 78-DBA of 2002 13 tempo. Occurrence continued for about 4 hours. Evidence on record shows that after recording the statement of Amar Kaur, when police party was going towards the place of occurrence, then on the way, secret information was received that Pritam Singh and Tarsem Singh were kidnapped by some persons and they were being taken towards Balasar. As per secret information, police party had gone towards that side. Pritam Singh and Tarsem Singh were found on the katcha road with injuries on their person. They were shifted to the Civil Hospital, Rania, for medico legal examination. After that, house of Balwant Singh was raided. Then Jaswant Singh was recovered while he lay on a cot. Amar Kaur was with the police party at the time of recovery of the child. Respondents were in actual possession of the land. When complainant party tried to take possession of the land, then in defence, respondents had caused injuries, but to pressurise the respondents to take possession of the land, the story was concocted. Possibility of child with Amar Kaur when police party had raided the house of Balwant Singh cannot be ruled out. To implicate respondents, Jaswant Singh, aged about 2-1/2 years, was shown to have been recovered while lying on a cot from the house of Balwant Singh. Injuries on the person of Tarsem Kaur were found to be simple in nature. Only one injury on the upper arm of Tarsem Singh was found to be grievous in nature. Three injuries on the person of Pritam Singh were found to be grievous in nature but not on any vital parts of his person. On the other hand, 8 injuries were noticed on the person of Balwant Singh, out of which, 2 injuries were on the head. Injuries on the head cannot be self suffered or self inflicted. When respondents were in actual possession of the land, then there was no need for them to self suffer or self inflict injuries Crl.Appeal No. 78-DBA of 2002 14 on the head. On the other hand, possibility of self suffering injuries which are simple in nature or some injuries of grievous nature on non-vital parts of the complainant party cannot be ruled out. After going through the evidence on the file, the trial Court rightly opined that the respondents being in actual possession of joint land to protect their possession had caused injuries in self defence. Judgment of acquittal is to be set aside if Appellate Court is of the opinion that the judgment is perverse and evidence on file was misread. Judgment is not to be set aside lightly on the ground that there is a possibility of a different view. When two views are possible and possible view as per evidence on the file was taken by the trial Court, then the judgment of acquittal is not to be set aside on the allegation that there is a possibility of a different view by the Appellate Court. For the reasons recorded above, Crl.Appeal No.78-DBA of 2002 and Crl.Revision No. 596 of 2002 are dismissed. ( JORA SINGH ) JUDGE 7.7.2011 ( S.S. SARON ) pk JUDGE