1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 673-SB of 1999 Date of Decision: 30.6.2010 *** Umar & Ors. .. Appellants Vs. State of Haryana .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. Sunil Pawar, Advocate for the appellants. Mr. Rajeev Malhotra, Addl. A.G. Haryana. *** ARVIND KUMAR, J. The appellants before this Court are impugning the judgment and order dated 21.7.1999 delivered by the learned Addl. Sessions Judge, convicting them under Sections 120-B, 148, 307 read with Section 149 IPC and sentenced them to undergo one year rigorous imprisonment under Section 148 IPC; five years with a fine of Rs.200/- for the offence under Sections 307 read with Section 149 IPC. In default of payment of fine, further sentence of two months was awarded and both the sentences were ordered to run concurrently. The case of the prosecution, in brief, was that on 25.9.1994 at about 9:30 a.m. Abdul Sattar(complainant) along with his brother Umar Mohd. were going to their fields situated in the revenue estate of village Rupdaka. When they were about 3 killas behind their fields, then Sahun, in order to kill Abudl Sattar fired a shot. The pellets struck on the right palm of Abdul Sattar and on stomach, chest and thighs of Umar Mohd. It was also the case of the prosecution that Sahun was accompanied by Hanu son of Patela, Jallu son of Ghamman, Rudar and Umar sons of Jallu Meo duly armed with lathies and after the occurrence they all exhorted that they have killed the enemies, who have filed case against them and went therefrom in 2 the tractor parked there. The further story put forth by the prosecution was that on hearing the noise of fire shot, Idrish and Iliyas, working in the nearby fields came at the spot and shifted the injured to the General Hospital, Palwar from where Umar Mohd. was referred to Safdurjang Hospital, Delhi. According to the prosecution the accused did so as there was a dispute inter se the parties in respect of one acre of land, which was agreed to be sold by Jallu son of Ghamman against the earnest money of Rs.30,000/-, but later he did not execute the sale deed, leading to institution of a civil case by the complainant side. It was further case of the prosecution that a day prior to the occurrence, the ladies of accused family harvested the Bajra crop standing in the said land, for which the complainant side dissuaded them. On the basis of statement Ex.PB made by Abdul Sattar, instant case was registered and investigated upon. Investigating Officer ASI Ram Niwas (PW13) went to the spot and took into possession the blood stained earth as well as motor cycle; site plan of the place of occurrence was prepared; statements of witnesses were recorded. X-ray of Abdul Sattar complainant was got done and as per report Ex.PF radio opaque shadow was noticed at the back of the 5th metacarpel. On 6.10.1994 one gun of .12 bore along with one empty was recovered from accused Umar son of Jallu and the same was taken into police possession vide recovery memo Ex.PE. On completion of usual formalities of investigation, final report under Section 173 Cr.P.C. was prepared and forwarded to the Court against accused Umar and Rudar sons of Jallu. They were charge-sheeted under Sections 120-B, 307 read with Section 120-B IPC, to which they pleaded not guilty and claimed trial. After examination of some of the prosecution witnesses i.e. PW1 Dr. Banwari Lal, who medicolegally examined the complainant, PW2 ASI Pyare Lal recorded the formal FIR of the case, PW3 HC Surender Singh in whose presence the blood stained earth and motor cycle was taken into police possession, PW4 complainant Abdul Sattar and injured-eye witness PW5 Umar Mohd., an application under Section 319 Cr.P.C. was filed seeking summoning of Jallu son of Ghamman, Sahun and Hanoo sons of Patela. Consequently, the said application was allowed and the aforesaid accused were summoned as an additional accused to face trial. 3 On their appearance, all the five accused were again charge sheeted for the offence under Sections 120-B IPC, 148 IPC and under Section 307 read with Section 149 IPC. On their denial to the charges, the prosecution was directed to produce its evidence. Then prosecution again produced PW4 and PW5 for their further cross examination besides examining Rajinder Singh HC as PW6, who tendered the affidavit as Ex.PD, PW7 Maghan Khan, witness to the recovery of blood stained earth and motor cycle, PW8 Const. Dharam Singh transmitted the copy of FIR to higher authorities, PW9 Const. Kanwar Chand attested the recovery memo of gun and cartridge, PW10 Dr. Surjeet Mehra radiologically examined the complainant, PW11 Bihari Lal clicked the photographs Ex.P1 to Ex.P4 and proved the negatives thereof as Ex.P5 to Ex.P8, PW12 Gyasi Ram Patwari prepared the scaled site plan Ex.PG, PW13 ASI Ram Niwas partly investigated the case and later handed over the investigations of PW19 Krishan Chand SI, PW14 and PW15 Idrish and Illiyas respectively allegedly witnessed the occurrence, PW16 Shiv Kumar Ahlmad produced the records of civil suit titled Islam Vs. Jallu & Ors., PW.17 Hakam and PW18 Farukh claimed that they saw the accused Umar Mohd. coming out of the fields having a gun, PW19 Krishan Chand also partly investigated the case and PW20 Mohinder Singh, as per his deposition, went to AIIMS, New Delhi and obtained the MLX and X-ray report of Umar Mohd. It is pertinent to mention here that Jallu son of Ghamman died during the trial and proceedings against him were dropped. On closure of prosecution evidence, the incriminating evidence produced by the prosecution was put to the accused, to which they denied and pleaded false implication. However, no evidence in defence was adduced by them. On conclusion of trial, the appellants, as noticed above were held guilty and sentenced in the manner indicated above. Dis-satisfied with the same, the appellants have filed the instant appeal. I have heard learned counsel for the parties and with their assistance have gone through the records of the case. In the instant case PW4 Abdul Sattar is the injured/ complainant on whose statement the case was registered against the accused 4 while PW5 Umar Mohd. was also injured to the said occurrence. It is claimed that the occurrence was noticed by Pws 14 and 15 namely Idrish and Iliyas, who came at the spot after hearing the noise of gun shot. But a careful look at their statements leave no doubt that the same are not trustworthy and their version do not inspire any confidence. Initially, the case of the complainant that it was Sahun who fired the shot and he was accompanied with Hanu, Jallu, Rudar and Umar, but while stepping into the witness box as Pw4, complainant Abdul Sattar stated that Hanu was armed with a gun and it is he who fired the shot, resulting into sustaining of injuries by him and his brother. He also did not even name Sahun as one of the accused. That apart, this witness when again appeared in the witness box after allowing the application of the prosecution under Section 319 Cr.P.C. improved the version and this time he stated that it was Sahun who fired the shot and he was accompanied with Hanu, Jallu and Rudar. He admitted that Sahun and Hanu are two different persons. This witness kept on changing his stand as to in fact had fired the said shot. Both the injured are discrepant to each other as to the presence of accused Umar at the spot. PW4 Abdul Sattar did not name Umar as one of the accused while PW5 Umar Mohd. did. Further, Pws 17 and 18 Hakam and Farukh respectively further demolished the case of the prosecution when they stated that they saw Umar Mohd. running out of the Bajra fields having gun with him. Thus, with all these inconsistencies, discrepancies and improvement in the version of prosecution witnesses, it is not safe to base conviction of the accused- appellants. Further, so far as presence of PW 14 Idrish and PW15 Iliyas at the time of occurrence or witnessing the occurrence is concerned, the same is not free from doubts. PW 4 i.e. the complainant admitted that Idrish and Iliyas came at the spot after 15 minutes of the occurrence. PW14 Idrish also admitted that no firing was done in his presence and they came to the spot after 10 minutes of the occurrence. Even the complainant admitted that till he remained conscious, he did not notice Idrish and Iliyas at the spot. Thus, in that situation, it cannot be believed that the after the occurrence the accused had remained at the spot atleast for 10 minutes, enabling the other persons to see them. Both these witnesses in unequivocal terms admitted that they are deposing to help the complainant being co-villagers. When the 5 statements of complainant is considered in juxtaposition with the statements made by PW14 and 15 the alleged eye-witnesses, it cannot be safely said that either they were present at the spot or witnessed the occurrence. Not only this, it has come on record that the FIR in this case was result of deliberations and consultation. The alleged occurrence was of 9:30 a.m. and it has been admitted by the complainant that the police had reached the hospital at about 11:00 a.m. But the FIR was registered at 3:15 p.m. The complainant admitted in his evidence that prior to making the statement he had consulted with his family members. The inordinate and unexplained delay in lodging of the FIR and admission by the complainant that prior to making the statement, he had consultation with his family members, leads to the irresistible conclusion that the FIR was the lodged after due deliberations and consultations. There was every reason to the complainant side to implicate the accused since they were having strained relations with each other and admittedly, civil litigation in respect of land is going on between the parties initiated at the instance of the complainant. Coming to the alleged recovery of gun from accused Umar, the evidence produced in this regard is also not convincing. Both the recovery witnesses i.e. PW9 Const. Kanwar Chand and PW19 SI Krishan Chand are discrepant to each other. PW9 stated that the gun and the cartridge was produced by one Sumer Singh while it is said by PW19 that the same were recovered from the accused Umar. Further, the prosecution failed to connect the said gun with the alleged commission of offence as no evidence was produced to prove that it was the same gun which was used in the commission of offence. The gun was never sent to the FSL or examined by the armourer to prove that it was in fact in working condition or not? There is another aspect of the matter. It has come in the evidence of PW5 Umar Mohd. and PW14 Idrish that the place where the alleged occurrence took place is usually used as a poaching area by the hunters. Thus, the contention of the defence, in the facts and circumstances of the case, seems to be probable that the injured received the pellets accidentally while going through the hunting area. It is apt to mention here that for the reasons best known to the prosecution, medical evidence with regard to receipt of injuries by Umar Mohd. was not produced. In absence 6 thereof, it is not established that as to whether Umar Mohd. received injuries or not. The cumulative of above discussion is that the prosecution has failed to prove its case against the accused beyond all reasonable doubts. Accordingly, the appeal is allowed and the conviction and sentence of the appellants, as imposed by the learned trial court is set aside and they are acquitted of the charges framed against them. (ARVIND KUMAR) JUDGE June 30,2010 Jiten