Crl. Appeal No. 587-SB of 1995 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.587-SB of 1995 Date of Decision: 15.05.2009 Birbal son of Ram Kishan son of Chandu, resident of village Kaurwala. ... Appellant. Versus The State of Punjab .... Respondent. --- CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. A.P.S. Deol, Senior Advocate with Mr. Davinder Bir Singh, Advocate for the appellant. Mr.U.S.Dhaliwal,Addl.A.G.,Punjab for the respondent-State. **** Sham Sunder, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 08.09.1995, rendered by the Court of Additional Sessions Judge, Bathinda, vide which it convicted Birbal, accused, (now appellant), as under:- Crl. Appeal No. 587-SB of 1995 --2-- Name of the accused (now appellant) The offence for which conviction was recorded. Sentence awarded Birbal U/S.307 IPC Rigorous imprisonment for seven years. Fine of Rs.1000/-. In default of payment of fine to undergo rigorous imprisonment for three months. 2. The facts, in brief, are that, on 16.10.1988, at about 7.30 PM Amarjit Singh came out of the house of Luddar Singh after taking milk. Birbal Singh, accused, who came out of the house of Mal Singh alias Mara Singh, fired from .12 bore pistol at Amarjit Singh, and the pellets hit his right arm, hand and neck. Bir Singh and Gurjant Singh, who were sitting, in front of the house of Gurcharan Singh, raised alarm. They witnessed the occurrence. Thereafter, the accused ran towards his house. Amarjit Singh, injured was taken to Civil Hospital, Budhlada, by Bir Singh and Gurjant Singh, where he was medicolegally examined and treated. 3. On receipt of the wireless message, from the Station House Officer, Police Station Budhlada, Harkirpal Singh, Sub Inspector, alongwith Crl. Appeal No. 587-SB of 1995 --3-- other police officials, went to Civil Hospital, Budhlada and after obtaining the opinion of the doctor, regarding the fitness of the injured, he recorded his statement, on the basis whereof, the FIR was registered. Harkirpal Singh, Sub Inspector, visited the spot. Site plan was prepared. He also recorded the statements of the witnesses. The accused was arrested. After the completion of investigation, the accused was challaned. 4. On his appearance, in the Committing Court, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Sections 307 of the Indian Penal Code, and 27 of the Arms Act, against the accused, was framed,to which he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. Amarjit Singh, Medical Officer, (PW-1), who medicolegally examined Amarjit Singh son of Bir Singh, on 17.10.1988 at 2.30 AM and found the following injuries on his person:- Crl. Appeal No. 587-SB of 1995 --4-- “1. 35 cm x 8 cm injury area on medial aspect of right fore-arm and dorsum of right hand wit fingers, having multiple reddish abrasions of varying sizes 1 mm x 1 mm to 7 mm x 3 mm with intervening healthy areas. Clotted blood was present. Small particles were embedded here and there. Some lacerated wounds of similar sizes were also present. X-ray of right fore-arm and right hand was advised. 2. Similar abrasions and lacerated wounds were present on the right upper arm above the elbow joint in an area of 10 cms x 8 cms. X-ray of right upper arm was advised. 3. Similar abrasions and lacerated wounds of the description of injury no.1 were also present on anterior of right of chest above axilla about 16 cms from mid sternal line and 8 cms below the top of shoulder in an area measuring 10 cms x 5 cms. Over lying shirt had multiple torn holes of sizes 1 mm or so. X-ray of chest was advised. Crl. Appeal No. 587-SB of 1995 --5-- 4. Similar abrasions and contusions of the description of injury no.1 were found in an area of 8 cms x 4 cms on anterior of neck above the sternal notch. X-ray of neck and upper chest were advised.” The probable duration of the injuries was within 24 hours. The pellets which were recovered from the wound, looked to be of a country made cartridge. The injuries on the person of injured, could be the result of fire arm. 5-A. Amarjit Singh son of Bir Singh, injured, (PW-2) deposed, in terms of the prosecution version, as stated above, while narrating the facts of the case. 5-B. Bir Singh son of Kaur Singh, eye witness, (PW-3), corroborated the statement of Amarjit Singh, injured,(PW-2) in all material particulars. 5-C. Harnek Singh, Assistant Sub Inspector, (PW-4), tendered his affidavit Ex.PF into evidence. 5-D. Bharat Singh, Assistant Sub Inspector, (PW-5), stated that two parcels were produced before Harkirpal Singh, Assistant Sub Inspector by the doctor,out of which, one parcel, contained Crl. Appeal No. 587-SB of 1995 --6-- shirt of Amarjit Singh, injured, and the other parcel, contained the pellets. Both these parcels were sealed with the seal bearing impression 'AS' and were taken into possession, vide recovery memo Ex.PD, duly attested by him, and the other prosecution witnesses. 5-E. Harbans Singh, Assistant Sub Inspector, (PW-6), tendered into evidence Ex.PX, affidavit. 5-F. Harkirpal Singh, Sub Inspector, (PW-7), who is the Investigating Officer, recorded the statement of Amarjit Singh,injured, Ex.PW7/A, on the basis whereof, the FIR was registered. Thereafter, the Additional Public Prosecutor closed the prosecution evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that on 17.10.1988 Bir Singh, Amarjit Singh and Mangu, caused injuries on his person with gandasa. It was further stated by him that he was got admitted, in the hospital,at Crl. Appeal No. 587-SB of 1995 --7-- Sardulgarh,where he was medicolegally examined. It was further stated by him that his statement was recorded by the Assistant Sub Inspector, but no action was taken by him. It was further stated by him that Amarjit Singh, then got a false case registered against him. It was further stated by him that some days before the occurrence, Amarjit Singh, was apprehended with working still. He was having suspicion, that he (accused) had got him arrested, in that case, and due to that reason, he was falsely involved. 6-A. In his defence, the accused examined Maghar Singh,(DW-1).He also tendered into evidence Ex.DB and Ex.DC,copies of the MLRs and X-ray report.Thereafter,he closed the defence evidence. 7. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant. Crl. Appeal No. 587-SB of 1995 --8-- 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that the prosecution miserably failed to prove that fire-arm injuries were caused, on the person of Amarjit Singh. He further submitted that no expert was examined to prove that the pellets, which were recovered from the wound of Amarjit Singh,injured, constituted ammunition. He further submitted that, as such, those pellets did not fall within the ambit of the provision of Section 25(2) (b) of the Arms Act. It was further submitted that the Ballistic Expert did not give an opinion, as to when the fire was made from the pistol last time. It was further submitted that neither the wads of the cartridges nor pellets were found at the spot. It was further submitted that the alleged occurrence took place at about 7.30 PM, but the medical examination of the injured was conducted at 2.00 AM i.e. after the delay of about 7 hours, which clearly showed that the injuries were fabricated. It was further Crl. Appeal No. 587-SB of 1995 --9-- submitted that, as per the MLRs, two injuries were found on the head and two injuries were found on the back of the accused, but the same were not explained. It was further submitted that the prosecution suppressed the genesis of the occurrence and, as such, its case was bound to fail. It was further submitted that there was unexplained delay of 12 hours, in lodging the first information report, which must prove fatal to the case of the prosecution. 11. On the other hand, the Counsel for the respondent-State, submitted that from the statement of Amarjit Singh, injured, (PW-2), which was duly corroborated by Bir Singh, eye witness, (PW-3), it was proved that fire-arm injuries were caused on his (Amarjit Singh) person. He further submitted that even Dr. Amarjit Singh, Medical Officer, (PW-2) deposed that the injuries on the person of Amarjit Singh, injured, could be possible by fire-arm. He further submitted that Maghar Singh, (DW-1) could not be said to be a credible witness as he kept silent through out and never made any complaint, that the occurrence did not take place in the manner, as deposed to by Amarjit Crl. Appeal No. 587-SB of 1995 --10-- Singh,injured. He further submitted that, under these circumstances, it was not proved as to in which occurrence, the accused sustained injuries which were simple, in nature, and, as such, it was not necessary to explain the same. He further submitted that the prosecution did not suppress the genesis of the occurrence. 12. Amarjit Singh, injured, when appeared as PW-2, in clear-cut terms, stated that when he came outside the house of Luddar Singh, Birbal Singh, accused, fired a shot from his pistol at him, after coming out of the house of Mal Singh alias Mara. He further stated that, the shot hit his arm, right shoulder, and neck. He further stated that, in the electric light, at the spot, his father Bir Singh and uncle Gurjant Singh, who were sitting, in front of the house of his uncle Gurcharan Singh, at the time of occurrence, witnessed the same. He further stated that the accused after causing fire arm injuries, to him, ran away towards his house. Not only this, even Bir Singh, (PW-3), an eye witness of the occurrence, also stated that the accused fired a shot from .12 bore pistol at Amarjit Singh, as a Crl. Appeal No. 587-SB of 1995 --11-- result whereof, he sustained injuries. Dr. Amarjit Singh, Medical Officer,(PW-1), who medicolegally examined Amarjit Singh,injured, in his statement, at one point, stated that the injuries on the person of the injured, could be the result of fire arm. He, however, during the course of cross- examination , stated that he could not give any definite opinion, whether it was a fire arm injury. It appears that the doctor was out and out to help the accused. It was, on account of this reason, that he made contradictory statement. Not only this, the pistol was got recovered by the accused. A parcel, containing the pellets, was also handed over to Harkirpal Singh, Sub Inspector, (PW-7) by the doctor, and he sent the same to the Ballistic Expert, alongwith the pistol. The Ballistic Expert , vide report Ex.PX, opined that, on chemical examination of barrel wash of .12 bore country-made pistol marked W/1, contained in parcel 'B', it was found that it had been used in firing. He, however, stated that the last date of its firing could not be ascertained. The opinion of the Ballistic Expert to the effect that .12 bore country-made pistol, had been used in firing, was Crl. Appeal No. 587-SB of 1995 --12-- sufficient to prove that the injuries were caused on the person of Amarjit Singh, with fire arm. The mere fact that the Investigating Officer did not conduct the investigation, in a proper manner, as he did not lift the pellets, or wads from the spot, did not mean that no fire-arm injury was caused on the person of the injured. From the cogent, convincing and reliable ocular evidence of Amarjit Singh and Bir Singh, duly corroborated by the report of Ballistic Expert as also by Dr. Amarjit Singh, Medical Officer,(PW-1), in the manner, referred to above, it could be safely held that the accused caused injuries on his (Amarjit Singh) person, with fire-arm. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. Coming to the next submission of the Counsel for the appellant, that since the medical examination was conducted after about seven hours of the occurrence, the possibility of fabrication of the injuries on the person of Amarjit Singh, injured, could not be ruled out, it may be stated here that the same does not appear to be correct. Crl. Appeal No. 587-SB of 1995 --13-- In the instant case, the occurrence took place on 16.10.1988 at about 7.30 AM in the area of village Korwala, Police Station Boha, from where the injured was taken and got admitted in the hospital at a distance of 7 miles. The injured was taken to the hospital at about 2.30 AM when he was medicolegally examined. It must have taken sufficient time for the kith and kin of the injured to arrange a vehicle for taking the injured to the hospital. It also must have taken sometime for them to arrange money for the treatment of the injured. The injuries on the person of Amarjit Singh, with fire arm, could not be fabricated, in any manner. As soon as, the injured arrived in the hospital, he was medicolegally examined. The mere fact that he was taken to the hospital, after some delay, did not mean that the injuries on his person were fabricated. The delay in the examination of the injured, stood explained from the aforesaid documents. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same is rejected. 14. No doubt, there was some delay in lodging the first information report. The Crl. Appeal No. 587-SB of 1995 --14-- statement of Amarjit Singh, injured was completed on 17.10.1988 at about 7.30 AM and immediately, thereafter the FIR was registered. Police Station Boha is at a distance of 12/13 Kms from the place of occurrence. As soon as the occurrence took place, the injured was taken to the hospital at Budlada after covering a distane of 7 miles. He was medicolegally examined at about 2.30 AM on 17.10.1988. Harkirpal Singh, the then Sub Inspector, Police Station, Boha, received a wireless message from the Station House Officer, Police Station Budhlada that Amarjit Singh, injured was admitted in the hospital at Budhalada. Thereafter, he went to the hospital and moved an application Ex.PC for seeking the opinion of the doctor, as to whether, the injured was fit to make statement. The doctor declared the injured fit to make statement, and he recorded his statement, on the basis whereof, the FIR was registered. It may be stated here that as soon as Amarjit Singh received injuries by fire-arm, the first and foremost concern of the kith and kin of the injured, was to provide him the best medical aid, to save his life. For arranging the vehicle and Crl. Appeal No. 587-SB of 1995 --15-- money, it must have taken sometime for the kith and kin. The kith and kin of the injured must have been extremely puzzled and perplexed. It was not possible for them to decide, as to what further course of action was to be taken immediately. It was, under these circumstances that some delay occurred, in lodging the first information report. The circumstances aforesaid clearly, explain the delay. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same is rejected. 15. The next submission of the Counsel for the appellant that since the prosecution failed to explain the injuries, on the person of the accused, it could be said that it suppressed the very genesis of the occurrence, and, as such, the accused was entitled to acquittal on this score alone is also not correct. Ex.DB is the copy of MLR of the accused. It may be stated here, that when the same was tendered into evidence, it was objected to, for want of mode of proof. The doctor, who medicolegally examined the accused and prepared Ex.DB, was not examined by him, for the reasons best known to the accused. Under these Crl. Appeal No. 587-SB of 1995 --16-- circumstances, Ex.DB, copy of the MLR, which was not proved, in accordance with the provisions of law, could not be taken into consideration. Even if, it is assumed, that the said document could be taken into consideration, it may be stated here that the injuries on the person of the accused, were minor and superficial. In these circumstances, it was not at all necessary for the prosecution to explain the same. Such like injuries could be self suffered. The arrival of the accused in the hospital, was on 17.10.1988 at 2.30 PM as is evident from Ex.DB, copy of the MLR, whereas the occurrence took place on 16.10.1988, at about 7.30 PM.In case, the accused had sustained injuries in the same occurrence, then there was no reason on his part not to rush to the hospital, for his medical examination immediately. Injury nos. 3 and 4 were declared simple, in nature. Injury nos. 1 and 2 on the person of the accused were advised x- ray. Injury Nos. 1 and 2 were also declared simple, in nature, after radiological examination, as is evident from Ex.DC, copy of the x-ray report. During the course of cross-examination of Amarjit Singh, injured, a suggestion was put to Crl. Appeal No. 587-SB of 1995 --17-- him that he, Bir Singh and Mangu, caused injuries on the person of Birbal, accused at 9/10 PM. On the other hand, as per the statement of Amarjit Singh, the occurrence took place at 7.30 PM on 16.10.1988. It means that the accused did not receive injuries on his person in the occurrence, in which the injuries were caused on the person of Amarjit Singh. If he received injuries at about 9/10 PM on 16.10.1988, it could be said that the same were received by him, in some other occurrence or in some other manner. In these circumstances, it could not be said that the prosecution suppressed the genesis of the occurrence. As stated above, it is not necessary for the prosecution to explain injuries on the person of the injured in every case. In Babu Nanda Sarma v. State of Assam, AIR 1977, (SC) 396, it was held as under:- “Prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances. It depends upon the facts and circumstances of each case whether the prosecution case becomes Crl. Appeal No. 587-SB of 1995 --18-- reasonably doubtful for its failure to explain the injuries on the accused. In the case of the present nature, before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The trial Court therefore, erred in holding that the prosecution has failed to explain the injuries upon 'B'” 15-A. Not only this, no reliance could be placed, on the statement of Maghar Singh, (DW-1), who stated that no fire-arm injury was caused by the accused, on the person of Amarjit Singh, but on the other hand, he (Amarjit Singh) and Mangu, caused injuries with gandassi on the person of Birbal, accused. This witness, remained silent, right from the year 1988 to 21.08.1995. He Crl. Appeal No. 587-SB of 1995 --19-- stated during the course of cross-examination, that he did not give any information, to the Police, with regard to the occurrence, in which the injuries were caused on the person of the accused. He further stated that he did not give any application, to the Panchayat that the injuries were caused on the person of the accused by Amarjit Singh by stating therein that no fire-arm injury was caused on his person. He also did not give any application to the higher Police authorities or higher administrative authorities that the occurrence did not take place, in the manner, as deposed to by Amarjit Singh, but, on the other hand, Amarjit Singh, and his companions caused injuries on the person of the accused why he slept over the matter, for about seven years, is not known. The mere fact that he remained silent for a period of seven years in itself, was sufficient to disbelieve his statement. The trial Court was right in disbelieving the defence version, and the defence evidence. This Court on re-appraisal of the evidence, also comes to the same conclusion. The finding of the trial Court, in this regard, being correct, is affirmed. Crl. Appeal No. 587-SB of 1995 --20-- 16. The Counsel for the appellant, however, placed reliance on Babu Ram and others v. State of Punjab (2008)2 Supreme Court Cases (Cri.) 727 in support of his contention that non- explanation of injuries, on the person of the accused, by the prosecution, in the same occurrence or in the course of altercation, is a very important circumstance, leading to the inference, that the prosecution had suppressed the genesis and origin of the occurrence, and had, thus, not presented the true version; that the witnesses who had denied the presence of injuries, on the person of the accused were lying on a most material point and their evidence was unreliable; that in case, there was a defence version, which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case. There is, no dispute, with the proposition of law, laid down in Babu Ram and others's case (supra), by the Apex Court. However, the facts and circumstances,thereof are clearly distinguishable, from the facts of the instant case. In the instant case, the occurrence Crl. Appeal No. 587-SB of 1995 --21-- took place on 16.10.1988 at about 7.30 PM, but during the course of cross-examination of Amarjit Singh, injured, (PW-2), a suggestion was given to him that in the occurrence, which took place at 9/10 PM, the injuries on the person of the accused by Amarjit Singh and his companions were caused. It means that the injuries on the person of the accused were not allegedly caused during the course of same occurrence, in which the injuries on the person of Amarjit Singh were caused by the accused with fire arm. Thus, after 1-½/ 2 hours of the occurrence, in which the injuries were caused on the person of Amarjit Singh, the accused sustained injuries, in some other manner,at the hands of some other persons and in some other occurrence. Even the evidence of Maghar Singh, DW-1, examined by the accused, has been held to be in-credible. Not only this, even the doctor, who medicolegally examined the accused, was not produced. The MLR Ex.DB was objected to, for want of proof and the same therefore, could not be taken into consideration. The injuries on the person of the accused were simple in nature. In this view of the matter, there was no, obligation upon the Crl. Appeal No. 587-SB of 1995 --22-- prosecution, to explain the injuries on the person of the accused. The prosecution, thus, did not suppress the genesis of the occurrence. Accordingly, no help can be drawn by the appellant,