Crl. Appeal No. 376-DB of 1998. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No376-DB of 1998 Date of decision: 6.11.2008 Hakam Singh ...Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR.JUSTICE K.S.GAREWAL HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.R.S.Cheema, Senior Advocate with Mr.Pawan Girdhar, Advocate for the appellant. Mr.Rajesh Bhardwaj, Addl. A.G., Punjab. -.- JITENDRA CHAUHAN, J. On 21.2.1991, an FIR was registered against the accused/appellant and the co-accused Khem Singh. Khem Singh died after the registration of the case and before the order of commitment. On 11.9.1997, the learned Sessions Judge charge-sheeted the accused under Sections 302/34, 307 of the Indian Penal Code and Section 25 of the Arms Act. The instant case was registered on the statement of PW-6, Sukhjit Singh, at Police Station, Bhawanigarh on 21.2.1991. The statement, Exhibit PC, made by the complainant Sukhjit Singh is reproduced hereunder: I am a resident of village Balad Kalan and working as a Tailor Master at Bhawanigarh. Today due to illness of our cow I have Crl. Appeal No. 376-DB of 1998. 2 not gone to attend my work. Today at about 12.00 noon when I and my uncle comrade Raghbir Singh s/o Harnam Singh were about to go to Veterinary Hospital for treatment of our cow, then Balbir Singh s/o Mukhtiar Singh Jat, resident of Balad Kalan met us and joined us to Veterinary hospital. I was carrying cow in my hand and my uncle Raghbir Singh and Balbir Singh were talking and escorting the cow behind me. At about 12 ¼ noon, when we reached in front of the house of Piara Singh s/o Nikka Singh of our village then Khem Singh s/o Nachhattar Singh and Hakam Singh @ Bhappa s/o Harnek Singh Jat resident of the village armed with rifles came there. Khem Singh raised a lalkara addressing my uncle as comrade “Be ready”, today we will not spare you and shall teach you a lesson to pursue a case u/s 307 IPC against us. In the meantime Khem Singh fired a shot from his rifle towards my uncle which hit him under the left arm put an pierced towards the right side. On receipt of fire shot my uncle fell down on the ground. Simultaneously, Hakam Singh fired towards Balbir Singh who fell down on heap of manures (Roories). Due to fear, I also ran away after leaving the cow. Both of them together with their respective weapons ran towards metaled road within our sight. When I and Balbir Singh went near and saw my uncle Raghbir Singh, he was lying dead. Thereafter, people of the village gathered there and after leaving Arjan Singh s/o Harnam Singh and Hari Singh s/o Jagta Singh residents of Balad Kalan near the dead body, I and Balbir Singh were going to inform you and Crl. Appeal No. 376-DB of 1998. 3 you met me us near Badal crossing and I have got recorded my statement which I have heard and it is correct. Inspector/SHO Paramvir Singh recorded the statement of Sukhjit Singh and sent the same to Police Station at 1.30 p.m. On receipt of the writing, the present FIR was registered. Special Report was sent to the Illaqa Magistrate at 4.45 p.m. Inspector Paramvir Singh inspected the spot. Inquest report Exhibit PD was prepared. The blood stained earth was lifted from the spot and was kept in a sealed parcel, Exhibit P9. Two empties were also lifted from the spot. A rough site plan, Exhibit PL, of the place of occurrence was prepared. The case was subsequently investigated by SI Mohinder Singh. The accused/appellant was declared proclaimed offender. On 29.5.1997, he appeared before DSP Jagjit Singh, who arrested the accused and handed him over to the Investigating Officer. Dr. L.C.Bansal of Civil Hospital, Sangrur on 22.2.1991 conducted the post-mortem examination on the body of Raghbir Singh. The doctor noticed the following injuries: 1. Oval lacerated wound on the lateral aspect of left side of chest 1.5 cm x 1 cm situate 7 cm above and lateral to left nipple. Margins of wound were inverted. Clotted blood present in the wound. On dissection underlying rib fractured, inter costal muscles, lower part of left lung, both ventricles of heart, lower part of right lung, pleura, inter costal muscle were lacerated and right side rib was fractured clotted and fluid blood present in the above described wound track. The track communicated with Crl. Appeal No. 376-DB of 1998. 4 injury no.2. 2. Oval lacerated wound 3.5 cm x 2 cm on the lateral aspect of right side of chest situate 10 cm below and lateral to right nipple. Margins of the wound were everted. Fluid dark black blood pouring out of the wound. It communicated with injury no.1. Hence injury No.1 is the wound of entry and no.2 the wound of exist. 3. An abrasion 4 cm x 1.5 cm on the front of left side of forehead above the eye brow Reddish in colour. Clotted blood present in wound.” The prosecution examined PW-1 Dharminder Singh, Draftsman, PW-2 Balbir Singh, PW-3 Sukhjit Singh, PW-4 Joginder Singh, Head Constable, PW-5 Dr. L.C.Bansal, PW-6 Sh. Paramvir Singh, Inspector, PW-7 Jagpal Singh and PW-8 Jagjit Singh, DSP. After conclusion of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure. The accused made following statement: Some unidentified persons had murdered Raghbir Singh. Sukhjit Singh and Balbir Singh PWs were not present there. I was not present at the spot. Sukhjit Singh and Balbir Singh wer subsequently summoned and introduced as false witnesses in connivance with the police. I have got no knowledge about the alleged murder of Raghbir Singh. I am innocent. Counsel for the accused pointed out that first injury was entry wound and the second injury was the exit wound. Both these injuries were Crl. Appeal No. 376-DB of 1998. 5 caused by one shot. The seat of injury suggested that the assailant was positioned on an elevated location as compared to the deceased, whereas no reference of the same had been made by PW-2 and PW-3 in their statements. The trial Court was not convinced by the above argument and held that there could be unevenness of the surface and no benefit could be given on the basis of the same. The trial Court further held that there was motive to eliminate the deceased, Raghbir Singh, as he was pursuing a criminal case, which was got registered by Khem Singh, accused (since deceased) against Balbir Singh etc. There was evidence to the effect that Hakam Singh and Khem Singh were first cousins. PW-2, Balbir Singh, made a statement that he alongwith Raghbir Singh, the deceased, took the cow for treatment and no one else accompanied. He admitted the factum of incident in which, Raghbir Singh was killed. But categorically stated that shot was not fired by Khem Singh. PW-3, Sukhjit Singh, supported the prosecution to the extent that he accompanied the deceased Raghbir Singh and PW-2, Balbir Singh, while taking the cow for treatment to the Veterinary Hospital. However, there was discrepancy in the statement made by PW-3, Sukhjit Singh, during cross-examination, especially when he stated that the incident took place while he along with Raghbir Singh, the deceased, and PW-2, Balbir Singh, were returning from the Veterinary Hospital. But as per the statement Exhibit PC recorded by PW-6 Paramvir Singh, Inspector, the incident took place when they were going to the Veterinary Hospital. It was further argued on behalf of the accused that the presence of PW-3, Sukhjit Singh, was improbable in view of the statement made by PW-2, Balbir Singh, who stated that it was only he, i.e., Balbir Singh and Crl. Appeal No. 376-DB of 1998. 6 Raghbir Singh, who were taking the cow to the Veterinary Hospital. With regard to the discrepancy in cross-examination of PW-3 Sukhjit Singh, the learned trial Court observed that the statement was made after a long gap of seven years and on that account minor details are likely to be erased from the memory. PW-3, Sukhjit Singh, being from the same village, could not have made any mistake in identifying the accused. The learned trial Court observed that PW-2, Balbir Singh, refused to identify the assailants for extraneous reasons, and held that Raghbir Singh was murdered in the manner described by the prosecution. It was argued on behalf of the accused that the accused did not fire any shot at Raghbir Singh. The shot allegedly fired by the accused/appellant did not hit PW-2 Balbir Singh. PW-2, Balbir Singh, did not identify the accused as his assailant. However, the trial Court held that the accused/appellant shared common intention with the co-accused (Khem Singh) to kill Raghbir Singh and Balbir Singh. No recovery of fire arm could be effected from the accused Hakam Singh, therefore, charge under Section 25 of the Arms Act was not established. Accordingly, the accused was held guilty under Section 302/25 and 307 of the Indian Penal Code. The present appeal was filed against the judgment and order dated 27/30.7.1998. Notice was issued and recovery of fine was stayed on 21.8.1998 Learned counsel for the appellant has argued that the medical version clearly proves the fact that the assailants and the victims were standing at distinctly different levels. The co-accused Khem Singh (since deceased) caused death of Raghbir Singh by firing the gun shot. The FIR Crl. Appeal No. 376-DB of 1998. 7 was got registered by interested witness, and the delay in lodging the same was utilized to exaggerate the allegations. There were material discrepancies in the statements of PWs regarding the circumstances of the occurrence, and the same could not be attributed to an innocent person on account of lapse of memory. Two witnesses were discrepant regarding the manner, in which, the incident took place i.e. whether incident took place while they were going to Veterinary Hospital or while returning therefrom. Ignorance about such a material fact militates against the normal conduct of human affairs. The presence of two witnesses was unnatural. The story of taking the cow to the Veterinary Hospital does not seem to be convincing and appears to have been invented to justify the presence of Sukhjit Singh, PW-3. On behalf of the State, it was submitted that the FIR was registered on the statement of PW-3, Sukhjit Singh, who supported the case of the prosecution in toto and as such the finding recorded by the learned trial Court cannot be found fault with. We have heard the learned counsel for the parties and perused the record. As per the statement of PW-3, Sukhjit Singh, the co-accused Khem Singh (since deceased) caused fatal gun shot injury to the deceased, Raghbir Singh. The present appellant fired a gun shot aiming at PW-2, Balbir Singh, who escaped unhurt, PW-2, Balbir Singh, made a categorical statement that it was only he along with Raghbir Singh, who had taken the cow to the Veterinary Hospital for treatment and none else was with them. PW-3, Sukhjit Singh, is the real nephew of the deceased Raghbir Singh. As per his statement, the incident occurred while they were Crl. Appeal No. 376-DB of 1998. 8 taking the cow for treatment. Whereas, in the statement before the trial court he stated that the incident took place when they were returning from the hospital. There is no doubt that the prosecution evidence, thus, suffers from inconsistencies and discrepancies but such short-comings are there in large number of criminal cases. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter or pertain to insignificant aspects thereof. In case of material inconsistencies, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence in the matter of small discrepancies, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases which does not appear to have been followed by the learned Sessions Judge. The non-identification by PW-2, Balbir Singh, coupled with the statement of PW-3, Sukhjit Singh, regarding the manner of occurrence, in our view, are material inconsistencies. The Hon'ble Supreme Court in Bhajan Singh v. State of Punjab, AIR 1977 Supreme Court 674 dealing with the question of material contradictions observed as under: “There are also certain other contradictions on material points in the evidence of some of the prosecution witnesses. We will refer to only two of them. Ajaib Singh (PW5) on cross-examination said that on May 14, 1969 he pleaded with the accused not to report against him to the police and agreed to pay the sum the accused wanted from him, only “to put off the accused at the time and in order to get him entangled in a corruption case”. If this was so, then clearly he had made up his mind about his course of action which is quite inconsistent with that he said in examination-in-chief that he sought Nand Crl. Appeal No. 376-DB of 1998. 9 Singh's (PW10) advice on two successive days, on the 14th and also on the 15th May, as to what he should do. Another significant discrepancy is in PW8 Buta Singh's description of the recovery of the currency notes from the accused as made in court and as appearing in his statement recorded under Section 161 of the Code of Criminal Procedure. In court he stated that Inspector Shiv Narain recovered ten currency notes from the right pocket of the trousers that the accused was wearing at the time. The witness was confronted with his earlier statement where he had said that the currency notes were recovered from the left pocket. On this contradiction the public prosecutor was allowed to cross-examine the witness and on such cross- examination the witness said that the statement that he made before the police was correct. Memory is apt to get blurred with the passage of time and it is possible that the witness did not quite remember whether the money was recovered from the right pocket or the left pocket. What is remarkable is that on cross-examination by the public prosecutor the witness should say that the statement he had made before the police was correct. If he remembered that the earlier statement was correct, then it is not possible to explain how he could make a mistake on this fact in his examination-in-chief. It may also be noted that there is no evidence that any scientific test was applied to prove that the appellant had handled the currency notes.” As per the evidence on record, the appellant fired a shot at Balbir Singh, who fortunately escaped unhurt. Though Raghbir Singh was pursuing an FIR against the accused Khem Singh (since deceased), there is no satisfactory explanation as to why PW-2, Balbir Singh, would make a false statement against the person who tried to take his life by firing a shot upon him. In the given set of facts, the presence of PW-3, Sukhjit Singh, Crl. Appeal No. 376-DB of 1998. 10 becomes doubtful. Admittedly, the appellant did not cause any injury to the deceased. The only allegation against the accused/appellant is that he fired a shot on Balbir Singh. Balbir Singh has made a categoric statement that the appellant did not fire any shot at him, and no shot was fired by him upon the deceased. Therefore, it is not established that the accused/appellant Khem Singh (since deceased) and Hakam Singh shared common intention to kill Raghbir Singh. It seems that the trial Court failed to take note of serious inconsistencies in the prosecution case pointed out above. The inconsistencies cast a legitimate doubt on the truth of the prosecution story. In view of the above, we do not, therefore, find it possible to maintain the conviction of the appellant. Accordingly, the appeal is accepted and the appellant is acquitted. The appellant is stated to be on bail, his bail bonds are discharged. ( JITENDRA CHAUHAN ) JUDGE 6.11.2009 ( K.S.GAREWAL ) mk/srm JUDGE