IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.645 of 1996. Date of decision: October 22nd, 2009. State of Himachal Pradesh. …..Appellant Versus Lal Singh and another. ……Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?1 No. For the Appellant : Mr.Ramesh Thakur, Asstt. Advocate General. For the Respondents: Mr. Rakesh Jaswal, Advocate. Surinder Singh, J (oral): The respondents were acquitted of the offences punishable under Section 307 of the Indian Penal Code and also for acquiring illegal possession and then misusing the SBML licenced Gun by respondent Lal Singh, thereby committing the offence under Section 25 and 27 of the Arms Act, which has been challenged in this appeal by the State. We have heard the learned counsel for the parties and carefully reappraised the evidence on record. In short, the prosecution case can be summed up thus. PW1 Dharam Chand (complainant), PW2 Duni Chand, PW3 Jagdish Chand and PW4 Girdhari Lal are the sons of PW5 Tulsi Ram. Respondents are relatives of the complainant 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - party and reside in the same village. The boundaries of their land adjoin each other. Thus, there was a boundary dispute between both the parties, on account of which the respondents nourished grudge against the complainant party. On 11th January, 1993, at about 3.30 p.m., the village school was closed. The complainant Dharam Chand, a teacher in the said school, had reached his house. At about 6 p.m., respondent Lal Singh came with a gun in the courtyard of his house and gave a “Lalkara” to him to come out as he intended to settle the score with him once for all. On hearing this, the younger brother of Dharam Chand, named Jagdish Chand (PW3) came out and tried to defuse the situation. Immediately thereafter, his brother Duni Chand (PW2) also came out of the room followed by the complainant. On seeing them, Lal Singh fired pallets at them, but it hit his brother Duni Chand on his left shoulder. He got injured and was taken to the hospital. Lal Singh fled away from the scene, leaving behind his Gun on the spot. The matter was reported to the police. Police recorded the statement Ex.PW1/A of Dharam Chand, on the basis of which FIR Ex.PW12/C was registered and the police visited the spot next day. The complainant handed over the Gun Ex.P1, which was taken into possession by the police vide memo Ex.PW1/B. PW7 Dr. Surender Singh was on duty in the Zonal hospital Mandi. He examined the injured Duni Chand and noticed the following injuries:- - 3 - “1. 1 cm. in diameter inverted, blackish margins and fresh blood was oozing. 2. 1.2 cm. in diameter inverted edges (lacerated) blackish in colour. 3. 1 Cm. in diameter inverted blackish lacerated margins. One pallet was palpable posteriorly on upper part of scapula.” The X-ray of the chest of the anterior and lateral view were also taken, which had shown the presence of pallets in the anterior chest wall left scapular region and left shoulder joint. In the opinion of the doctor, the injuries were grievous, having been caused within six hours. To this effect, Medico legal certificate Ex.PW7/A was issued by him. From the spot, the police had also taken, Datt (Wad) Ex.P2, which was used in the said gun, vide memo Ex.PW1/C. The gun and the wad were sent for the forensic examination to the Ballistic Expert. The reports of the Ballistic Expert are Exts.PG & PH. After completing the investigation, the challan was presented in the court for the trial of the respondents. Respondents were charge-sheeted. They abjured the guilt and claimed trial. Prosecution examined its witnesses to prove the charges, whereas, the respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the allegations against them and alleged false implication in the present case. The stand taken up by the respondents in defence was that the gun Ex.P1 was a licenced gun of respondent Raghubir Singh. He had gone to guard his fields from the wild animals. In the - 4 - evening, when he was returning to his house, he was carrying his gun on his shoulder. While crossing the passage near the courtyard of the complainant, his feet struck against a stone and fell down, with the result the gun went off. The pallets hit the wall of the house of PW5 Tulsi Ram and few pallets hit Duni Chand. When the respondents were called upon to enter into their defence, respondent Raghubir Singh examined himself under Section 315 of the Code of Criminal Procedure, after taking the permission of the court. Learned trial Court appreciated the rival contentions, based upon the statements recorded before the Court and came to the conclusion that the material witnesses did not support the case of the prosecution and the defence raised was found probable, thus recorded the findings of acquittal. We also find that PW1 complainant Dharam Chand did not depose what he had initially stated in the FIR. According to him he heard the gun shot and then he came out from his room and saw his younger brother Duni Chand was lying injured in the verandah. Lal Singh respondent was in the courtyard and the gun was lying on the ground near him. He had picked up the gun and kept it inside the room. Thereafter he took his brother to the hospital and lodged the FIR. However, he stated that he did not know whether respondent Raghubir Singh while passing through his house fell down and the gun went off accidentally, whereas, PW2 Duni Chand, the injured witness stated that respondent Lal Singh came to their house and challenged his brother Dharam Chand, asking him to come out, - 5 - otherwise he would shoot him. On hearing this, he (Duni Chand) came out and the respondent Lal Singh fired at him, the pallets hit his shoulder. Thereafter, Dharam Chand, Jagdish Chand, Girdhari Lal and their mother who were in the kitchen came out and they picked him up and took to the hospital at Mandi. We find his statement juxta-opposite to PW1 Dharam Chand, as he stated that he was in his room and not in the kitchen. PW2 also admitted that the gun fire had hit the walls of the verandah, but he denied the defence raised by the respondents. There is further contradiction with respect to Lalkara raised by Lal Singh. PW3 Jagdish Chand stated that the respondent Lal Singh came to the courtyard and shouted from courtyard, the words “BAHAR NIKALO”, but he did not particularly name any person to whom he wanted to take out. When Duni Chand came out, he heard the sound of gun shot. The pallets hit Duni Chand. He categorically stated that when he asked Duni chand about it, he told that the gun fell down from the hands of Lal Singh, which went off. However, he was cross-examined by the learned Public Prosecutor, but he denied the prosecution story as put to him in its totality. Rather, in his cross-examination, he has admitted that at that time, both the respondents were passing through the path besides their house, which probablised the defence version. Further, PW4 Girdhari Lal gave a different version. He stated that respondent Lal Singh came to their courtyard and uttered the words“ DHARAM CHAND BAHAR NIKLO, MAIN TERE PAR FIRE KAR DOONGA”. He stated that at that time, Dharam Chand was - 6 - sleeping inside the house and he did not come out, but he alongwith his brother Jagdish Chand and Yog Raj came out of the kitchen. Lal Singh had fired at Duni Chand. Thus, on the critical examination of the aforesaid evidence, we did not find any consistency in the statements of the prosecution witnesses. All the witnesses gave different version which was found suitable to them. The defence version also stands probablised and was further testified on oath by Rabhubir Singh respondent when he appeared as his own witness. The long standing litigation may also be a factor to falsely implicate the respondents. We also find that two views have emerged from the evidence on record, out of which one is consistent with the defence raised by the respondents, which makes the prosecution evidence doubtful, therefore, its benefit was rightly given to the respondents by the learned trial court. Therefore, for the above reasons, no interference is called for in the findings of acquittal recorded by the learned trial court. As such, the appeal sans merit and is accordingly dismissed. (Surjit Singh) Judge. (Surinder Singh), Judge. October 22nd, 2009. (Pds)