Crl. A.No. 462-DBA of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl. A.No. 462-DBA of 2005 Date of decision: 05.08.2011 State of Punjab ..... appellant. Versus Balbir Singh and others ..... Respondents. CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. S.S.Brar, D.A.G, Punjab for the appellant. Mr. G.S. Brar, Advocate for the respondents. -- VIJENDER SINGH MALIK J. The State of Punjab is in appeal before us against the judgment dated 11.12.2004 passed by learned Additional Sessions Judge,Fategarh Sahib, vide which respondents Balbir Singh and others have been acquitted of the charge for an offence punishable under sections 148, 323, 307, 506 read with section 149 of the Indian Penal Code in a case registered by way of FIR No.28 dated 26.3.1999 Police Station Bassi Pathana District Fatehgarh Sahib. The case set up against the respondents by Police Station, Bassi Pathana is as under:- Crl. A.No. 462-DBA of 2005 2 On 26.03.1999 information was received from Civil Hospital Fategarh Sahib at Police Station Bassi Pathana regarding admission of Phuman Singh son of Shingara Singh at the hospital in injured condition in connection with some quarrel. Nasib Singh, ASI from Police Station Bassi Pathana went to Civil Hospital Fatehgarh Sahib and found Phuman Singh there. He also met Dalbara Singh s/o Shingara Singh there. He recorded the statement of Dalbara Singh, which has been in the following terms:- Dalbara Singh was running a dairy at his house in village Pawala. On 25.3.1999 he alongwith his father Shingara Singh, his brother Balkar Singh and others was present at his dairy. His younger brother Phuman Singh was working in a factory at Mohali and he had also returned in the meanwhile in the said dairy. In the meantime, Kulwant Singh son of the sister of mother of the complainant also came there. Said Kulwant Singh is son-in-law of Joginder Singh son of Kartar Singh, a resident of village Pawala. Kulwant Singh had come to attend the marriage of his brother-in-law Joga Singh s/o Joginder Singh. He had some quarrel with his brother-in-law in the marriage. At about 7.15 PM on 25.3.1999 Bhagwan Singh son of Kartar Singh armed with a 12 bore gun, Joga Singh s/o Joginder Singh armed with a 12 bore gun, Jaswinder Singh alias Jassa s/o of Joginder Singh armed with gandasi, Joginder Singh s/o Kartar Singh armed with gandasi, Balbir Singh s/o Bhagwan Singh armed with kirpan residents of Gursharan Singh s/o Khazan Singh r/o Shadipur, Police Station Crl. A.No. 462-DBA of 2005 3 Julkan, district Patiala armed with pistol came there. They started raising lalkara of not permitting people on the complainant side to escape. Bhagwan Singh fired from his double barrel gun aiming at the complainant. The said shot had hit Phuman Singh on his left thigh. Gursharan Singh then fired from his pistol, which had just missed the ear of the complainant. Joga Singh then fired from his double barrel gun which had caused injuries to Sarmukh Singh and Balkar Singh. Joginder Singh gave gandasi blow to Shingara Singh with its reverse side on his left shoulder. Balbir Singh and Jaswinder Singh @ Jassa continued raising lalkara that the people on complainant side should not be left unhurt. The complainant raised alarm whereupon Balbir Singh s/o Mulla Singh and Rachhpal Singh s/o Shingara Singh alongwith other co-villagers came there. The accused party thereafter made good their escape with their respective weapons. Arranging a vehicle, the injured were taken to Civil Hospital Fatehgarh Sahib by Dalbara Singh and they were got admitted there. Statement of Dalbara Singh, recorded at 1.00 AM on 26.3.1999, was sent by Nasib Singh, ASI with his endorsement to the police station, on which the case was registered by Amarjit Singh,ASI. Nasib Singh,ASI lifted three empties of 12 bore gun from the place of occurrence and prepared a sealed parcel of the same and took them into possession by way of recovery memo. He prepared rough site plan of the place of occurrence. He recorded the statements of the witnesses. He collected medicolegal reports of Phuman Singh and other injured. He took into Crl. A.No. 462-DBA of 2005 4 possession the blood stained pant, parna and stocking of injured Phuman Singh and giving the shape of sealed parcels to these articles, they were taken into possession by way of recovery memo. Sukhdev Singh, Sub Inspector, who conducted the remaining investigation of the case, had arrested the accused. On 04.04.1999 Bhagwan Singh, accused disclosed on interrogation that he had kept concealed a licensed double barrel gun and the pistol of Gursharan Singh and could get the same recovered. In pursuance of the same, he got the double barrel gun and the pistol alongwith two live cartridges of .12 bore and five cartridges of .9 mm pistol recovered. They were given the shape of parcels and were sealed by Sukhdev Singh, SI and were taken into possession by way of recovery memo. On 4.4.1999 Jaswinder Singh, accused also made a disclosure statement that he had kept concealed a gandasi and a sword in the fodder room of his house and could get the same recovered. In pursuance of the same, he led the police party to the fodder room of his house and got the weapons recovered. They were taken into possession after the due formalities. A site plan to scale of the place of occurrence was got prepared. On receipt of the reports of the Chemical Examiner and Forensic Science Laboratory, Chandigarh and completion of other formalities of investigation, challan against the accused was prepared and presented in the court. Crl. A.No. 462-DBA of 2005 5 Charge was framed against the respondents for an offence punishable under sections 148, 323, 307 read with section 149 IPC, to which they pleaded not guilty and claimed trial. The prosecution examined eighteen witnesses in all at the trial. In the statements of the accused recorded under section 313 Cr.P.C, they have denied the truth of the prosecution evidence put to them in the shape of questions. The accused have pleaded innocence. It was their case that when they were returning from the marriage party, the ladies went to Gurudwara Sahib to pay obeisance and when they were passing by the side of dairy , some members of the complainant party, under the influence of liquor started dancing and creating nuisance before the ladies. The ladies objected to it, but they did not stop the nuisance. Someone from the people collecting at the spot fired a shot in the air to scare away the complainant party. It is denied that anyone of the accused was present at the spot or that they have caused injuries to the complainant side. Their implication in this case is said to be false on account of enmity between the parties. In defence, three witnesses have been examined and the same has been closed. After hearing learned Additional Public Prosecutor for the State, learned defence counsel and going through the evidence on record, learned trial court found the prosecution case to be doubtful and extending benefit of doubt to the accused, acquitted them of the charge framed against them. Crl. A.No. 462-DBA of 2005 6 Aggrieved by the aforesaid judgment of acquittal, the State of Punjab has brought this appeal. We have heard Mr. S.S. Brar, learned D.A.G,Punjab for the appellant-State and Mr. G.S.Brar, learned counsel for the respondents and have gone through the entire evidence with their assistance. Learned DAG, for the appellant could not point out any illegality in the impugned judgment. He could not explain the glaring discrepancies noticed by learned trial court in the case. It is a case where the investigating officer lifted three empties of .12 bore gun from the place of occurrence. The guns which were there with the respondents are stated to be three i.e. two double barrel guns and one pistol. It is claimed that one gun each had been used in the occurrence by Bhagwan Singh and Joga Singh . The shots fired from these two guns are said to have hit the persons from the complainant party. The shot fired by Gursharan Singh from his pistol is said to have missed its target by a narrow margin. The two guns and the three empties recovered in this case were sent for examination to Forensic Science Laboratory, and it has been found vide report Ex.P-33 by Deputy Director Ballistics that two .12 bore empty cartridges had been fired from the left barrel of .12 bore gun No.49132, which was of Bhagwan Singh and one .12 bore empty cartridge had been fired from the right barrel of the same gun. None of the three empties had been found to have been fired from the gun of Joga Singh. Crl. A.No. 462-DBA of 2005 7 The shots fired during the occurrence, as per the ocular version, were two and the empties recovered from the spot are there. This anomaly finds no explanation in the prosecution case. The possibility would have been of no empty cartridges found at the spot because empties come out of the gun when it is reloaded. If one shot each was fired by Bhagwan Singh and Joga Singh, there was no possibility of any empty found lying at the spot. Here in place of two empties, three empties have been found at the spot. The report of Forensic Science Laboratory, Chandigarh clearly proves that no second gun was used in the occurrence. It is a case where Balkar Singh is claimed to have suffered gun shot injuries. This aspect also suffers a serious blow in the statement of Dr.Ramesh Chand, PW-1, who has stated that the weapon used in case of Balkar Singh was blunt weapon and the injuries caused were simple in nature. This aspect is rather inexplicable and goes to the root of the case. Learned trial court has also noticed that on the date of occurrence, there was marriage of Joga Singh, accused. It was hard for learned trial court to believe that Joga Singh would leave his marriage and join the assailants at the house of the complainant with a gun. The gun of Joga Singh is also not found by the investigating officer, which is stated to have been used in the crime. Therefore, there appears a clear attempt to falsely implicate him. Once the role of Joga Singh is not found to have been there in the occurrence, it will be difficult to say Crl. A.No. 462-DBA of 2005 8 as to who caused injuries to Surmukh Singh and Balkar Singh. It has also come in the evidence of the prosecution that Surmukh Singh and Balkar Singh were standing 2/3 karams apart from each other. This distance in any way cannot be taken to be less than 10 feet. Two persons standing 10 feet apart cannot normally be hit by a single shot. Learned DAG, Punjab has failed to explain these discrepancies in the prosecution evidence which makes the entire prosecution case doubtful. We, therefore, do not find any patent illegality or even irregularity in the judgment of acquittal passed by the learned trial court, which may warrant interference by this Court. The appeal is consequently dismissed. ( HEMANT GUPTA) (VIJENDER SINGH MALIK) JUDGE JUDGE 05.08.2011 dinesh