CRA No.770-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.770-SB of 2000 Date of decision : 14.01.2011 Sukhpal Singh ….Appellant Versus State of Punjab ….Respondent CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present : Shri T.S. Sangha, Sr. Advocate, with Shri J.S. Lalli, Advocate, for the appellant. Shri Rajinder Mathur, Assistant Advocate General, Punjab. JITENDRA CHAUHAN, J. 1. Sukhpal Singh son of Harnek Singh has preferred this appeal against the judgment dated 14.7.2000 passed by the Additional Sessions Judge, Bathinda, vide which he was convicted under section 338 of Indian Penal Code. The learned Additional Sessions Judge released the accused- appellant on probation for a period of three years under section 4(1) of the Probation of Offenders Act. He was also directed to pay a sum of Rs.5000/-, out of which a sum of Rs.4000/- was ordered to be paid to the complainant Narotam Singh Chahal, the injured, while the remaining amount of Rs.1000/- CRA No.770-SB of 2000 -2- was to go the State as litigation expenses. The accused appellant was acquitted under section 307 of the Indian Penal Code. 2. In brief the facts set out by the prosecution are that on 30.09.1993, a message, Ex.PB, was received from the Civil Hospital, Manda, in the Police Station, Bhikhi, that one Narotam Singh was admitted in that hospital in injured condition, upon which SI Sukhdev Singh, along with another police official reached in the hospital. He obtained the opinion of the doctor on application, Ex.PC, about the fitness of the injured to make the statement but the doctor declared the injured was unfit to make the statement vide endorsement Ex.PC/1. 3. At that time Balwant Singh, Sarpanch, PW3, son of Sukhdev Singh, driver of the car, was present in the hospital. The Sub Inspector recorded his statement, Ex.PE, which was sent to the police station with his endorsement, Ex.PE/1, to the police station Bhikhi, on the basis of which formal FIR, Ex.PE/2, was recorded. The Special report reached the JMIC at his residence at 11.00 PM on the same day. 4. In his statement, Ex.PE, Balwant Singh, PW3, has stated that he along with Narotam Singh injured and Brij Lal Yadav, PW2, were in that car. Narotam Singh cried that he was dying. Narottam Singh was admitted in the Civil Hospital, Mansa. The injured was shifted to DMC, Ludhiana and thereafter to CMC Hospital, Ludhiana, where his statement was recorded on 6.10.1993 5. On 29.9.1993, at about 10.50 PM, Dr. Ram Singh Jaura, PW1, medically examined Narotam Chahal and found one lacerated gutter shaped wound, two lacerated oval shaped wounds on the his body. The doctor opined that these injuries were the result of a fire arm and duration of injuries was within six hours. As there was blackening, so it was a close range fire. CRA No.770-SB of 2000 -3- 6. Constable Sukhpal Singh was arrested on 26.10.1993. On the same day, SHO Gurjit Singh recovered one carbine, Ex.P.1, and sixteen cartridges, Ex.P2 to Ex.P17, from his residential room at Mansa in pursuance of disclosure statement, Ex PG, which were taken into possession vide memo, Ex.PH, attested by ASI Mangal Singh, PW4. He was arrested on 26.10.1993. 7. After completion of investigation, challan against Sukhpal Singh was presented in the court of Judicial Magistrate 1st class, Mansa. The learned Judicial Magistrate 1st Class, Mansa, committed the case to the court of Sessions for trial. 8. The learned Additional Sessions Judge, Bathinda, framed charge under section 307 IPC against the accused to which he pleaded not guilty and claimed trial. 9. In order to prove its case, the prosecution examined eleven witnesses. Dr Ram Singh Jaura proved the medical examination of the injured. This witness proved Ex PA carbon copy of MLR, Ex.PA/1 pictorial diagram showing the seats of injuries, Ex.PB, intimation to the police and his opinion, Ex.PC/1 and Ex.PD/1, regarding the unfitness of the injured to make a statement. ASI Mangal Singh, PW4, SI Sukhdev Singh, PW5, and Inspector Gurjit Singh, PW10, proved the steps of the investigation conducted by them. HC Gurcharan Singh, PW6, proved the transfer and posting order, Ex.PH, of Constable Sukhpal Singh, accused-appellant, with Brij Lal Yadav, PW2, as gunman. Formal affidavits, Ex.PF, of HC Balraj Singh and Ex.PS of Constable Nirbhai Singh, were tendered in evidence. Constable Paramjit Singh, PW7, is a witness to the recovery memo, Ex.PJ, and Ex PK, by which the Car No.CHK-2276 and three empty cartridges of 9 mm were taken into possession. Sohan Lal, PW8, proved site plan, Ex.PL. CRA No.770-SB of 2000 -4- 10. The star witness Narotam Singh injured was examined as PW9, who stated that on 29.9.1993, he along with Balwant Singh and Brij Lal Yadav along with their gunmen Jarnail Singh and Sukhpal Singh (accused appellant), respectively, were going from Budhlada via Bhikhi to Mansa in red colour Maruti car No.CHK-2276. It was about 10.30 PM, they were discussing the affairs of election of Planning Board. The car was being driven by Balwant Singh while Brij Lal Yadan was sitting on the front seat. The injured was sitting on the rear seat on lleft side and besides him was sitting Jarnail Singh, gunman, while Sukhpal Singh, gunman (accused appellant), was sitting on the back seat along with Jarnail Singh. This witness further stated that accused Sukhpal Singh reacted to their remarks that Sher Singh, MLA, was harming the interest of Congress candidate and they would be bringing this fact to the notice of S. Beant Singh, the then Chief Minister, Punjab. Sukhpal Singh, accused-appellant, stated that Sher Singh, MLA, was just like his father and he could not tolerate to hear anything against him. On which this witness replied him to mind his own business and he should not meddle in their political affairs otherwise he would be transferred. The accused-appellant fired three shots towards him with his carbon like weapon with an intention to kill him. Two shots fired by the accused-appellant pierced through the side window of the car, the third hit him on his upper thigh piercing it through and through on the hip side of the left thigh. Balwant Singh stopped the car. They over-powered the accused-appellant and snatched away the weapon from him. The injured was got admitted in the Civil Hospital, Mansa. 11. PW2, Brij Lal Yadav, and PW3, Balwant Singh, proved that they all were occupants of the car, but did not toe the lines of Narotam Singh Chahal, PW9, injured witness, about the firing by the accused-appellant. Both CRA No.770-SB of 2000 -5- these witnesses feigned ignorance about the person who fired and the direction the fire came from. 12. In his statement under section 313 Cr.P.C., the accused-appellant denied the incriminating evidence appearing against him and stated that the case is false and registered against him merely on the basis of suspicion and on account of political rivallary with Sher Singh Gagowalia. The accused- appellant did not lead any evidence in defence. 13. The learned trial court convicted and sentenced the accused appellant as stated in para no.1 of this judgment. This appeal was admitted for hearing on 29.8.2000. 14. Shri T.S. Sangha, Senior Advocate, appearing for the accused- appellant, has argued that the learned trial court has erred in convicting the accused-appellant under section 338 IPC. Learned counsel inter alia submits that the name of the accused appellant for the first time appeared in the statement of Narotam Singh Chahal, PW9, under section 161 Cr.P.C., after seven days of the occurrence i.e. on 5.10.1993. The learned counsel further submits that charge under section 307 IPC only was framed against the accused-appellant, in which he stood acquitted. The charge under section 338 IPC, was framed against him, therefore, a prejudice has been caused to him. The learned counsel submits that the prosecution never made any effort to send the weapon for examination by the Ballistic Expert and as such it could not be established that any bullet was fired from the carbine, Ex.P1. Learned counsel assailed the statement of solitary witness on the ground that there is no corroboration to it and the accused was named with due deliberations and consultations to settle the scores with Sher Singh, MLA. The accused appellant has been made scapegoat only. CRA No.770-SB of 2000 -6- 15. Learned State counsel submits that the prosecution has fully proved its case against the accused appellant beyond reasonable doubt. It is proved that the accused appellant, Brij Lal Yadav, PW2, Balwant Singh, PW3, and Narotam Singh Chahal, PW9, injured witness, were traveling in the same car at the time of the incident. There is no previous enmity of the injured witness with the accused appellant. 16. I have heard the learned counsel for the parties and carefully perused the record with their able assistance. 17. It is worthwhile to mention here that Narotam Singh Chahal, injured witness (PW9) in this case is a practising advocate. He was equipped with legal knowledge and the consequences of each reply given to the questions put to him in the cross examination. He is expected to know how to fill up the lacunae of the prosecution story. He may be a truthful witness. His solitary statement cannot altogether be disbelieved simply because he is an expert witness. Therefore, his testimony deserved to be scrutinized by this Court with extreme caution. 18. In this case, the incident is dated 29.9.1993, while the statement of this witness Narotam Singh Chahal, PW9, was recorded for the first time on 6.10.1993 in CMC Hospital, Ludhiana. There is delay of eight days when for the first time the existing version accusing the present appellant as an accused saw the light of the day. The first and the earliest version is DDR dated 30.9.1993 recorded at 6.05 AM in Police station Bhikhi by ASI Mangal Singh, PW4. This DDR is based on the statement of Brij Lal Yadav, PW2, wherein it is recorded that he could not say as from where and how the bullet hit or whether it was from within the car or from outside the car. Similar version is mentioned in statement, Ex.PE, of Balwant Singh, PW3, on the basis of which, formal FIR, Ex.PE/2, was recorded in the Police station. Brij CRA No.770-SB of 2000 -7- Lal, PW2, was the occupant of the car along with Narotam Singh Chahal, PW9. While appearing as PW2, Brij Lal Yadav, stated that Sukhpal Singh was his gunman. They were traveling in the same car. He stated on oath in court that he did not know whether the gun shot came from within or outside the car. This witness feigned ignorance regarding as to who fired the gunshot. This witness also stated that he had not seen any altercation between the accused and the injured. Similar is the statement of Balwant Singh, PW3. Both of them have not corroborated the statement of Narotam Singh Chahal, PW9. There is no corroboration to the version of Narotam Singh Chahal, PW9. The version of this solitary witness cannot be believed in its entirety in view of the fact that the other two witnesses who were occupants of the vehicle are not supporting his version in Court. So, it is unsafe to rely upon the solitary statement of this witness especially keeping in view the fact that the version put forward by him is afterthought and a delayed version. 19. Secondly, the prosecution has withheld the material witness, namely, Jarnail Singh, another gunman who was traveling in the same car. Jarnail Singh, gunman, was also carrying a weapon. 20. Those were the days of the militancy. The two gunmen were traveling in a car along with three VIPs. Both gunmen were having weapons. The prosecution has failed to prove by examining any expert to ascertain as to whether the shots were fired from inside the car or from outside the car. Dr Ram Singh Jaura, PW1, who medico legally examined the injured has stated that as there was blackening, so it was a close range fire. In case of injuries No.2 and 3, the assailant should be in front of the injured and the barrel of the weapon should be lowered slightly. Narotam Singh Chahal, PW9, stated in his examination-in-chief that he was sitting on the left side of the rear seat and besides him was sitting Jarnail Singh, gunman, while Sukhpal Singh, accused, CRA No.770-SB of 2000 -8- was sitting on the back seat along with Jarnail Singh. Jarnail Singh. gunman, was attached with Balwant Singh, PW3, while Sukhpal Singh, accused- appellant was attached as gunman with Brij Lal Yadav, PW2. All the three, i.e., Brij Pal, Balwant Singh and Narotam Singh Chahal, belonged to the Congress Party. 21. In this case, Carbine Ex.P.1, recovered from Sukhpal Singh, accused-appellant was not sent for examination by the Ballistic Expert and as such, the prosecution has failed to establish that the empty cartridges were fired from the same carbine which the accused-appellant was carrying. Even the weapon of Jarnail Singh, gunman, was also not taken into possession or sent to Ballistic Expert to find out the truth. By getting to Ballistic Expert report, the prosecution could have ensured as to which weapon was used. Unfortunately, the prosecution did not do so. In the absence of examination or comparison of Carbine, Ex.P1, with the three empty cartridges recovered from the car, it cannot be said with certainty that the bullets which hit Narotam Singh Chahal, PW9, indeed were fired from the carbine, Ex.P.1, carried by the accused-appellant. Brij Lal Yadav, PW2, or Balwant Singh, PW3, did not see the bullet being fired from the carbine carried by the accused-appellant and did not lend any support to the testimony of Narotam Singh Chahal, PW9. In this view of the evidence, it was incumbent upon the prosecution to lead relevant evidence in this regard to rule out the possibility of the bullets having been fired from the weapon of co-gunman, Jarnail Singh. 22. Now the question arises, whether Sukhpal Singh accused was rash or negligent in handling the carbine Ex.P.1 endangering human life or personal safety of others. The answer may be ‘no’. Those were the militancy days in Punjab. Congress men were on the hit list of the terrorists. Three congress men were traveling in a car that too at 10.30 p.m. The gunmen might CRA No.770-SB of 2000 -9- have been over cautious and they might have not locked their weapons to keep them ever ready to retaliate the apprehensive attack by the terrorists. Inspector Gurjit Singh, PW10, admitted in his cross examination that if safety lock is not properly applied, the carbine can fire accidentally on a jerk. Brij Lal Yadav, PW2, in his examination-in-chief admitted that when they reached near Village Borawal, they found the pits on the road and their car fell into the ditches with a jerk and stopped there. Balwant Singh, PW3, who was driving the car, stated in his examination-in-chief that in the area of village Borawal, the road was having pits due to rain. This witness further stated that there they heard the sound of gun shots but did not notice from which direction the gun shots were coming. Again it is repeated here that two gunmen having weapons in their hands were sitting with Narotam Singh Chahal, PW9. So, either of them could be doubted, as to whose weapon went off. The accused appellant has not specifically denied his presence at the scene of the incident. However, it was bounden duty of the prosecution to prove that if any bullet was fired that was fired from the carbine, Ex.P.1, handled by the appellant. Affidavits, Ex.PF of HC Balraj Singh and Ex.PJ of Constable Nirbhai Singh, prove that three empty cartridges of 9 mm and two bullets of 9 mm were deposited in the office of Forensic Science Laboratory, Chandigarh, on 12.10.1993. The carbine, Ex.P1, was recovered from the accused appellant at the time of his arrest on 26.10.1993 in pursuance of his disclosure statement. When the carbine was recovered on 26.10.1993 the three empty cartridges and two bullets had already reached the office of FSL, Chandigarh. No explanation is forthcoming as to why the carbine, Ex.P.1, was not sent for the FSL test. So, the findings of the learned trial court that the accused-appellant was negligent in handling his carbine are liable to be reversed. CRA No.770-SB of 2000 -10- 23. Taking the totality of the facts and circumstances in view, I am of the opinion that the prosecution was not able to prove its case beyond a shadow of reasonable doubt. Resultantly, this appeal is allowed, judgment/order of conviction and sentence dated 14.07.2000 is set aside and Sukhpal Singh, accused-appellant, is acquitted of the charge. The appellant is on bail, his bail bond stands discharged. 14.01.2011 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to Reporter ? Yes / No