Criminal Appeal No. 146-DB of 1999 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 146-DB of 1999 Date of decision : 2.7.2008 Risal Singh .....Appellant Versus State of Haryana ...Respondent **** 2. Criminal Appeal No. 147-DB of 1999 Krishan .....Appellant Versus State of Haryana ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. Vivek Singla, Advocate for the appellants Mrs. Navin Malik, Addl. Advocate General, Haryana S. D. ANAND, J. In all, as many as seven persons including the two appellants (Risal Singh son of Makhan and Krishan son of Kheru ) were prosecuted by the police of Police Station, Bhuna, in case FIR No. 119 for the offences under Sections 148, 302, 149, 430 IPC and 25 of the Arms Act. The finding of indictment was recorded only qua appellant Risal Singh and Krishan and also one Hanuman, who is not indicated to have filed an appeal Criminal Appeal No. 146-DB of 1999 -2- **** against his conviction. The other four accused were acquitted. 2. The appellants Risal Singh and Krishan are in appeal against the verdict of conviction recorded by the learned Trial Judge. 3. The prosecution allegations, upheld at the trial, were as under:- 4. On the date of impugned occurrence, PW-12 Rajender, Narsi and PW-11 Balwant were in the process of irrigating their agricultural holding. They had obtained the turn of one Hari Ram son of Malik Ram for irrigating their fields. At the relevant point of time, they were moving along the water-course for taking the water from the outlet upto their land. At a particular place (near the Dhani of Sohan Lal), they found that there was obstruction in the water-course. They also spotted the appellants ( and their acquitted associates) coming from behind Dhani Sohan Lal. At that time, appellant Krishan was armed with a double barrel gun; while appellant Risal Singh was armed with a single barrel gun. The acquitted accused were also armed with different weapons. Hanuman gave a lalkara that enemies were available( a reference to the members of the complainant party) and they should be done away with in order to teach them a lesson for having got the land vacated. Thereupon, appellant Krishan fired a shot which hit Narsi. The other shot fired at the members of the complainant party hit PW-12 Rajender and PW-11 Balwant. All of them fell down upon the ground. Appellant Risal Singh also fired a shot and so also did deceased accused Jagdish. On hearing the Raula raised by the members of the complainant party, Kishan son of Ram Narain and also Bhagat Singh and Chander Pal came over there from their Dhani. In a bid to save the members of the complainant party, Krishan son of Ram Narain fired a shot Criminal Appeal No. 146-DB of 1999 -3- **** towards the appellants and their acquitted associates. That shot hit Hanuman. Thereupon, the appellants and their associates fled the spot and carried along their weaponary. 5. PW-1 Raja Ram Patwari had prepared scaled site plan Ex. PA of the spot on 17.7.1996, on the pointing of Balwant Singh and Rajinder Singh. 6. PW-2 ASI Om Parkash, had partly investigated this case by having recorded statements under Section 161 Cr.P.C. of Kuldeep Singh Patwari and had also collected Warabandi Ex. PB. 7. PW-3 SI Nihal Singh had also partly investigated this case and had recorded statements under Section 161 Cr.P.C. of PW-1 Raja Ram Patwari and PW-8 Constable Dhoop Singh. 8. PW-4 Dr. Sangeeta Mehta had intimated the police, vide ruqqa Ex. PF, that Bhagat Singh and Chander Pal had brought the dead body of Narsi son of Ram Narain to the hospital. 9. PW-5 Dr. Dhananjay Kumar Dadhich had conducted the post- mortem examination on the dead body of Narsi and found six lacerated wounds on it. He further opined that death had occurred on account of shock hemorrhage resulting from the said multiple injuries caused by fire- arms. The injuries were opined to be ante mortem in nature and sufficient to cause death in the ordinary course of nature. 10. PW-6 Ishwar Singh, PW-7 MHC Ram Mehar and PW-9 Constable Krishan Kumar tendered their affidavits Ex. PL, Ex. PM and Ex. PO respectively into evidence. 11. PW-8 Constable Dhoop Singh tendered into evidence his Criminal Appeal No. 146-DB of 1999 -4- **** affidavits Ex. PN and Ex. PK. 12. PW-10 Sunder lal, Licence Clerk, office of the Deputy Commissioner, Hisar, made a record based statement to the effect that one DBBL 12 bore gun licence had been issued in favour of Het Ram son of Bhima Ram and that one gun licence had also been issued to Hanuman son of Budh Ram. 13. PW-11 Balwant Singh and PW-12 Rajender are the witnesses representing ocular segment. 14. PW-13 Krishan son of Ram Narain had been attracted to thespot bythe Raula. He had carried along a licensed gun with him and had fired a shot, the pallets whereof hit Hanuman. 15. PW-14 Des Raj witnessed the apprehension of Krishan by the police on 21.6.1996, while he was carrying one double barrel gun and two live cartridges. 16. PW-15 witnessed the apprehension of appellant Risal Singh, making of a disclosure statement by him and also the effecting of recovery of one single barrel gun at this instance, in pursuance of disclosure statement aforesaid. 17. PW-16 ASI Satbir Singh had apprehended Krishan on 21.6.1996. He had also apprehended two accused accused namely Parjad and Rameshwar on 22.6.1996. He had also apprehended acquitted accused Kheru on 23.6.1996. 18. PW-17 ASI Jai Pal Singh had, besides recording the formal FIR and the despatch of special report to the learned Illaqa Magistrate, also conducted part investigation of this case. Further, on 24.6.1996 he had Criminal Appeal No. 146-DB of 1999 -5- **** arrested appellant Risal Singh, recorded his disclosure statement and also witnessed the recovery of one single barrel 12 bore gun at the instance of Risal Singh in pursuance of disclosure statement aforementioned. He had arrested deceased accused Jagdish too. Accused Hanuman was arrested by him on 2.7.1996. 19. PW-18 Ram Kumar had attested recovery memo Ex. PCC, Ex. PDD, Ex. PEE and Ex. PFF vide which blood stained earth, one blood stained parna, two empties of 12 bore and some wads recovered from the spot were taken into possession. 20. PW-19 ASI Chhaju Ram had investigated a part of the case. 21. Appellants denied the prosecution allegations and pleaded false implication in the case on account of party faction. 22. DW-1 Dr. Jai Narain was examined in defence evidence. He had medico legally examined Hanuman ( a non-appellant convict) and found seven circular wounds of different sizes on his person. 23. Learned counsel for the appellants has the following criticism to offer to assail the finding of conviction recorded by the learned Trial Judge. 24. Appellants had been falsely implicated on account of party faction in the village and falsity of the prosecution plea is apparent from the very fact that the prosecution presentation was discarded by the learned Trial Judge qua as many as four persons. 25. We do not find any merit in the plea. The false implication of few members of opposite faction is a common phenomena. The fact that the prosecution presentation is disbelieved qua some of those named as Criminal Appeal No. 146-DB of 1999 -6- **** accused would not, ipso facto, entitle those convicted to plead falsity of the entire prosecution presentation. It is the job of the Court to conduct the adjudicatory exercise with a view to be able to find out the truthfulness of the prosecution presentation. Those found guilty would suffer conviction; while those found innocent would be entitled to acquittal. 26. Insofar as appellant Krishan is concerned, his culpability in the impugned occurrence is fully buttressed by the testimony on oath of PW-11 Balwant and PW-12 Rajender, both of whom detailed the sequence of events culminating in the act on the part of that respondent/accused in firing a fatal shot which hit Narsi. The fact that appellant Krishan holds a double barrel gun licence was proved by the record based testimony of Sunder Lal PW-10. The testimony of PW-11 Balwant and PW-12 Rajender is further cemented by the deposition of PW-13 Krishan son of Ram Narain who got attracted to the spot by the noise of gun fire and the Raula (Mardia-Mardia) raised by his brother Balwant PW-11. He had carried along his licensed gun. He found that his brother Narsi was lying upon the ground, along with Rajender injured. He had also seen appellant Krishan carrying a double barrel gun with him. A shot was fired by him in order to save his brother. The scared respondent/accused Krishan and also the acquitted associates fled the spot, along with their weapons of offence. It was indeed put to PWs, in the course of cross-examination, that it was Narsi deceased who, accompanied by two unknown miscreants, had gone to the spot to forcibly eject Hanuman from certain agricultural holding and it was Narsi only who fired upon Hanuman to eject him. It was also put to him that only after Hanuman had been felled upon the ground that deceased accused Jagdish, a Criminal Appeal No. 146-DB of 1999 -7- **** neighbour of Hanuman, fired a shot in defence of Hanuman. It was that shot which hit Narsi deceased. Another part of that suggestion is that Jagdish fired a shot from a gun belonging to Hanuman, which was obtained by Jagdish for purpose of defence of Hanuman, who had fallen upon the ground and was handicapped thereby. The suggestions were denied by the witnesses as incorrect. Appellant Krishan does not appear to have pursued the matter any further to prove the correctness of denied suggestions and also to thereby prove the falsity of denial offered by the relevant PWs. Hanuman was the best placed, to enter the witness box (though in his own discretion),and own the attributed role. He refrained from entering the witness box. Apart there from, it is proved on record that it was appellant Krishan who, in pursuance of a disclosure statement, got the recovery of aforementioned gun effected. Thus, the present is a case in which ocular presentation is not only supported by the corresponding medical evidence but is also buttressed by the fact of recovery of weapon of offence at the instance of that appellant. That part of the evidence is further cemented by the FSL report which upheld the prosecution presentation that two empties recovered from the spot had been found to have been fired by that double barrel gun. 27. We, accordingly concur, with the line of reasoning adopted by the learned Trial Judge in convicting appellant Krishan. However, insofar as appellant Risal Singh is concerned, the prosecution presentation qua his culpability is not free from doubt. He is not averred to be related to appellant Krishan. They have different parentage. There is vague allegation that he and accused Jagdish had fired from their respective Criminal Appeal No. 146-DB of 1999 -8- **** weapons towards the members of the complainant party. It is not even the allegation that the shot fired by appellant Risal Singh hit any member of the complainant party. The medical segment also does not indicate any injury corresponding to the shot attributed to the appellant Risal Singh. Insofar as the effecting of recovery (of one single barrel gun) at his instance is concerned, it too does not inspire confidence. On the own showing of PW- 17 SI Jai Pal Singh (before whom appellant Risal Singh had allegedly made a disclosure statement), a number of witnesses were available at Bus Stand, Bhuna, but none of them was associated in the police party. He conceded that he did not send for the Sarpanch or Lamberdar of the village to witness the impugned recovery. That part of the evidence does not, thus, inspire confidence. Appellant Risal Singh is held entitled to benefit of doubt. The appeal preferred by him shall stand allowed. 28. To sum up, the appeal filed by appellant Krishan shall stand dismissed; while the appeal filed by appellant – Risal Singh shall stand allowed. He shall stand acquitted of the charge. ( S. D. ANAND ) JUDGE July 02, 2008 (ADARSH KUMAR GOEL) Pka JUDGE