Criminal Appeal No. 1036-SB of 1997 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Appeal No. 1036-SB of 1997 Date of Decision: 24.4.2008 Niranjan Singh and Others …Appellants Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Amrik Singh Kalra, Advocate for the appellants. Mr. Amit Chaudhary, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. Appellants Niranjan Singh, Sarabjit Singh, and Hardev Singh, all sons of Hazara Singh, had been convicted and sentenced by the Court of learned Additional Sessions Judge, Patiala. Sarabjit Singh has been sentenced to five years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default of payment of fine to further undergo rigorous imprisonment for three months under Section 307 IPC. Niranjan Singh and Hardev Singh were also sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.2,000/- each, in default of payment of fine to further undergo three months Criminal Appeal No. 1036-SB of 1997 2 rigorous imprisonment under Section 307 read with Section 34 IPC. All the appellants were named as accused in case FIR No. 89 dated 3.7.1991 registered at Police Station Julkan, under Section 307 and 307 read with Section 34 IPC. FIR in the present case was recorded on the statement of Devinder Singh. Devinder Singh accompanied Kirpal Singh son of Lakhmir Singh Jat, Jit Singh son of Lakha Singh Jat and Tejinder Singh son of Harjit Singh Jat, all residents of village Kheri Ranwa and came to the Police Station and stated that he is an agriculturist. On the day of occurrence, he had taken water from canal for irrigating his fields. Jit Singh was present along with him. He found that that the water in the water canal was receding. He along with Jit Singh went to the field of Niranjan Singh and there he noticed that Niranjan Singh, Sarabjit Singh and Hardev Singh were irrigating their fields by carving the water towards their field. At that time Sarabjit Singh was armed with 12 bore gun. It was at 9.30 P.M. Light was emitting out of the tube-well of Kirpal Singh. He asked the accused as to why the water had been taken by them towards their field. Upon which the three brothers started abusing the complainant. Some hot words were exchanged. At that time Niranjan Singh armed with gun from the distance of about 15/20 karams exhorted that the complainant should be taught a lesson. On saying so, Sarabjit Singh fired a shot from his gun which hit on the chest towards left side. Kirpal Singh who was standing near his tube-well witnessed the occurrence. FIR was investigated and the appellants were charged for the offence under Sections 307 and 307 read with Section 34 IPC. They Criminal Appeal No. 1036-SB of 1997 3 pleaded not guilty and claimed trial. Prosecution examined PW.1 Dr. Amritpal Singh who found following three fire short injuries on the person of Devinder Singh:- “1. A lacerated wound about 3 mm in diameter on the front of chest in the intermammary are about 11 cm inner to the left nipple. Fresh blood was present. Advised X-ray from R.H. Patiala. 2. A rounded lacerated wound 3 mm in diameter on the front of abdomen about 15 cm above the umbilicus. Fresh blood was present. Advised X-ray from R.H. Patiala. 3. A lacerated wound about 3 mm in diameter on the right thigh about 8 cm below the inguinal region. Fresh blood was present. Advised X-ray from Rajindra Hospital, Patiala”. It was opined by PW.1 Dr. Amritpal Singh that the injuries were simple in nature. PW.2 Dr. Bir Singh, Registrar, stated that he has brought bed head ticket of injured Devinder Singh. He stated that on 4.7.1991 operation of the abdomen of injured was done by a team of doctors consisting of himself and other doctors. It is further stated that abdomen was opened. Track was found upto the half of sub contaneous tissue. But no bullet or pallet was found. Paritoneum was also opened. Criminal Appeal No. 1036-SB of 1997 4 Injured PW.3 Devinder Singh appeared in the Court and reiterated the version given by him in the FIR. He has given the time of occurrence as at about 9.30 P.M. PW.4 Kirpal Singh corroborated the testimony of PW.3 Devinder Singh. PW.5 Baldev Singh, Patwari had prepared the scaled site plan. PW.6 Jagrup Singh, Assistant Sub Inspector, had taken into possession rifle produced by Niranjan Singh, accused. PW.7 Kuldip Kumar, Sub Inspector, had investigated the present FIR. PW.8 Dr. Amritpal Singh was Senior Lecturer in the Radiology Department, and he proved the X-rays of injured PW.3 Devinder Singh. PW.9 Gurdial Singh, Assistant Sub Inspector, was then posted as Moharrir Head Constable and has tendered his affidavit Ex.PW.9/A., which is of formal nature in order to prove link evidence. PW.10 Harnek Singh, Constable, has also tendered his affidavit Ex.PW.10/A to the similar effect. PW.11 Gurmail Singh, Constable, tendered his affidavit to the similar effect i.e. Ex.PW.11/A. PW Lakhbir Singh was given up as won over. Report of Chemical Examiner Ex.PC, report of Serologist Ex.PD and report of Forensic Science Laboratory Ex.PE were tendered. Statements of accused under Section 313 Cr.P.C. were recorded. They stated that prosecution witnesses have deposed falsely being interested in the case. Criminal Appeal No. 1036-SB of 1997 5 All the three accused have separately submitted their defence pleas. They stated that Inderjit Singh was being chased by the complainant party and in order to save him from their clutches two shots were fired in the air. Then Niranjan Singh fired third shot from his gun, which slightly injured Devinder Singh. Hardev Singh appeared as DW.1 and reiterated the defence plea. I have heard Mr. Amrik Singh Kalra, Advocate, learned counsel for the appellant. The plea raised by defence is untenable and the same cannot be accepted. The turn of water was of Devinder Singh, the accused were armed, water is necessary easement which was being denied to the complainant. The complainant had every right to protest. The complainant had gone there not armed and had made a grievance. The accused had fired shot from 12 bore gun and caused injuries to the complainant. It will be pertinent to note here that there is no injury on any of the accused as it was one sided affair. At this stage, Mr. Kalra in the alternate has submitted that in the FIR it has been stated that when the complainant went there for protest, hot words were exchanged and some abuses were also given. Mr. Amit Chaudhary, learned Assistant Advocate General, Punjab, appearing for the State has unable to explain as to why other two appellants except Sarabjit Singh have not caused any injury. Admittedly, only one shot was fired and this is attributed to Sarabjit Singh. Therefore, appellant Niranjan Singh and Hardev Singh cannot be convicted with the aid of Section 34 IPC. Consultations and deliberations Criminal Appeal No. 1036-SB of 1997 6 to widen the net cannot be ruled out. As a matter of abundant caution they are liable to be acquitted. Hence, their appeal is accepted. Mr. Kalra has stated that in the present case, occurrence had taken place on 3.7.1991, a period of 17 years is going to lapse. The parties are residing in the neighbouring village and their fields adjoin each other and in the last 17 years, no untoward incident had taken place. He has further stated that Sarabjit Singh is having three daughters. Taking into account protracted trial, peace prevailing in the village and the fact that appellant Sarabjit Singh has two daughters of marriageable age, he should not be sent behind the bars. The contention of Mr. Kalra, to reduce the sentence cannot be accepted. As Sarajbjit Singh is a sole bread winner of his family and his two daughters are to be married, taking into account protracted trial, it will be appropriate to reduce his sentence from five years to two years, however, sentence of fine is enhanced to Rs.20,000/-. Appeal of Hardev Singh and Niranjan Singh is accepted, they are acquitted. With these modifications, appeal of Sarabjit Singh is dismissed. (Kanwaljit Singh Ahluwalia) Judge April 24, 2008 “DK”