Criminal Appeal No. 75-SB of 2003 1 In the High Court for the States of Punjab and Haryana at Chandigarh … Criminal Appeal No. 75-SB of 2003 Date of decision:March 7, 2011 Jarnail Singh ..Appellant Versus The State of Punjab ..Respondent Coram: Hon'ble Mr. Justice KANWALJIT SINGH AHLUWALIA Present: Mr. S.P.S.Sidhu, Advocate for the appellant. Mr. B.S.Sra, Addl. A.G. Punjab for the respondents. Whether referred to reporter: Yes/No KANWALJIT SINGH AHLUWALIA,J.(Oral) The present appeal has been filed by Jarnail Singh son of Budh Singh, who was nominated as an accused along with seven acquitted accused in case FIR No. 50 dated 17.2.1996, registered at Police Station Sadar, Ferozepur under Section 307/34 IPC and 25/27 of the Arms Act. The court of Additional Sessions Judge (Fast Track Court), Ferozepur vide its judgment dated 17.12.2002 acquitted co-accused of the appellant but found the appellant guilty under Section 307 IPC and vide a separate order of even date sentenced him to undergo RI for three and a half year under Section 307 IPC and to pay a fine of `5000/-. In default of payment of fine, he shall further undergo RI for six months. In the present appeal, the appellant has challenged his conviction pronounced and sentenced awarded by the trial Court. Mr. Sidhu, learned counsel for the appellant at the outset has stated that as per the prosecution story, accused-appellant has not fired the shot which caused injuries. Learned counsel states that the trial Court has not Criminal Appeal No. 75-SB of 2003 2 believed the prosecution version and has recorded the conviction relying upon the defence plea taken by the accused under Section 313 Cr.P.C. Learned counsel states that no conviction can be recorded on the basis of the statement recorded under Section 313 Cr.P.C. Learned counsel further submitts that prosecution has to stand on its own legs and the trial Court after disbelieving, the prosecution evidence, committed a grave error to record conviction of the appellant on the statement recorded under section 313 Cr.P.C. To appreciate this argument. It is necessary to notice the brief facts. The prosecution case emerges from the statement Ex. P5, made by PW2 Bakhshish Singh. It is stated that he was resident of village Peeru Wala. They were three brothers and two of them were engaged in agricultural work. On 17.2.1996, Bakhshish Singh along with his brother Harbans Singh and Oma Labourer (hired in lieu of sharing crop) were irrigating the fields. The complainant was having dispute with the Gram Panchayat of village Peeru Wala over 10 acres of land, in which the complainant had sown the wheat crop. Under the orders of District Magistrate, the possession of the land has been handed over to Gram Panchayat village Peeru Wala about two months ago. Thereafter, the land was auctioned on lease and Harnam Singh resident of village Khadi and Jarnail Singh resident of Village Meera Shah Noor had taken this land on lease in auction. Thereafter, Arbel Singh, Sarpanch of Gram Panchayat had got registered a case against five members of the complainant party to pressurize them so that panchayat can take possession of the land. For taking possession of the land, Sarpanch Arbel Singh and Karnail Singh Bhabra were helping Jarnail Singh of the village. On the date of occurrence at about 12 noon, when the complainant along with his brother and the labourer were working in the field and at that time from village Waryam Wala, said Arbel Singh Sarpanch, village Peeru Wala son of Arjan Singh armed with .12 bore DBBL Gun and his sons Jarnail Singh and Baldev Singh armed with Dangs, Karnail Singh Bhabra, Jarnail Singh resident of village Meera Shah Noor armed with 12 Bore gun and Criminal Appeal No. 75-SB of 2003 3 Chanchal Singh son of Dalip Singh and his son Jalandhar Singh armed with Dang came there in the fields of Panchayat. Meanwhile, Pritam Singh, resident of village Wariamwala on his tractor mark “Zetor” and cultivators attached with it came there. Complainant stepped forward and said that they should not harvest the crop standing in the panchayat field. Upon which, Jarnail Singh and Baldev Singh sons of Arbel Singh raised a lalkara and said that today they shall settle the account for the crop standing in the field and told Chanchal Singh and his son Jalandhar Singh that they shall not be allowed to escape unhurt and the accused came towards the complainant's family. From some distance, Arbel Singh Sarpanch fired a shot from his .12 bore gun with an intention to kill him. It hit on the left eye, left collar hand and left shoulder. Meanwhile, Sarpanch Arbel Singh fired another shot,the pallets of which hit in the left side of stomach of Bakhshish Singh complainant. Out of fear, the complainant tried to run away but fell down. Thereafter, he stood up again and Karnail Singh Bhabra took the 12 Bore DBBL gun from Jarnail Singh and fired a shot with an intention to kill. The shot hit on the back side and on the phalanx of the left hand. At that time, there was Harbans Singh and the labourer Oma raised a noise “Mardita- Mardita”. On hearing their noise and the sound of fire shots, some persons were seen coming from the side of the village. At that time accused ran away from the spot along with their weapons towards village Waryam Wala. Pritam Singh also left the said place with his tractor attached with cultivators. Bakhshish Singh was removed to the Civil Hospital, Ferozepur for treatment by his brother Harbans Singh in his Tractor Trolley, where on admission he was given necessary medical treatment. The reading of the above said FIR reveal that as per the complainant party, two shots were fired by Arbel Singh. Thereafter, Karnail Singh Bhabra took the gun from Jarnail Singh and fired the same on the back of the complainant. The appellant is stated to be armed with 12 Bore DBBL Gun but it is Karnail Singh Bhabra, who took his gun as per statement Ex.P5 made by Bakhshish to ASI Dharamvir Singh, SHO Police Station, Ferozepur on 17.2.1996 at 5.50 P.M. in Taruma Ward,Civil Hospital, Ferozepur. The above said FIR was Criminal Appeal No. 75-SB of 2003 4 investigated and report under Section 173 Cr.P.C. was submitted. The charge framed against the appellant was that Karnail Singh Bhabra and Ravel Singh on 17.2.1996 at about 12 Noon in the area of village Peeru Wala in furtherance of common intention of co-accused Jarnail Singh, Baldev Singh and Jalandhar Singh. Jarnail Singh son of Arbel Singh, Gurcharan Singh, Pritam Singh and Chanchal Singh fired a shot from .12 Bore DBBL Gun with such an intention and under such circumstances that by that act they caused the death of Bakhshish Singh. They would have been guilty of murder and in this way, Karnail Singh and Harbans Singh committed an offence punishable under Section 307 IPC, whereas the present appellant committed the offence under Section 34 IPC along with Jarnail Singh, Jalandhar Singh sons of Arbel Singh, Gurdev Singh, Pritam Singh and Chanchal Singh. Dr. Ramesh Kumar, PW1, Medical Officer on 17.2.1996 at about 1.35 p.m. Medico legally examined Bakhshish Singh and found 13 injuries on his person. Injury No.1 was declared grievous and all injuries were caused by fire arms. Bakhshish Singh appeared as PW2 and stated the time of occurrence at about 12 noon, where Arbel Singh armed with .12 Bore DBBL Gun. His sons Jarnail Singh and Baldev Singh armed with dangs. Present appellant Jarnail Singh armed with .12 Bore DBBL gun along with Karnail Singh Bhabra and Pritam Singh came there. They further stated that Arbel Singh had fired with 12 bore gun which hit on the left eye and left shoulder. He fired another shot which hit him in the stomach. When he stepped backward, Karnail Singh snatched the rifle of Jarnail Singh and fired at him with an intention to kill him. The fire hit him on the back and on the back side of left hand. Oma PW 3 also corroborated the testimony of PW2 Bakhshish Singh injured. MHC Brij Lal appeared as PW4 and who tendered his affidavit as Ex.P6 to link the evidence. SI Tara Singh, PW5 investigated the case. Dharamvir Singh PW7 had recorded the statement of the accused statement Ex.P5, on the basis whereof FIR Ex.P5/C was recorded. Hardev Singh, DSP, PW8 had Criminal Appeal No. 75-SB of 2003 5 arrested the accused Karnail Singh on 6.8.1997. PW9 Sheesh Pal, Clerk Record Keeper, Dayanand Medical College and Hospital, Ludhiana proved medico legal record of injured Bakhshish Singh. PW10 Kuldeep Kumar, Patwari Halqa Hastiwala prepared the site plan. Thereafter, prosecution closed its evidence. Statement of the accused was recorded under Section 313 Cr.P.C. They denied all the incriminating material and pleaded innocence. Accused Jarnail Singh son of Budh Singh came out with the following version:- “Q. Have you to say anything else? A. I am innocent. Ten killas of panchayat land of village Peeruwala was being forcibly and illegally cultivated by Bakhshish Singh complainant without giving any lease money. By order of Collector Ferozepur and with the help of police the land with standing crop of wheat was given with possession to panchayat of village Peeruwala and the panchayat about two months before this occurrence auctioned the land with standing wheat crop in it in favour of myself and Harnam Singh. Earlier to this occurrence Sarpanch Arbel Singh gave an FIR against Bakhshish Singh and four others for illegal interference in this very panchayat land which was in possession of panchayat. Bakhshish Singh complainant started destroying the green wheat crop of the applicant taken on auction from panchayat on the day of occurrence and when he did not desist from destroying the same, then I fired in the fire(sic) in order to prevent him from doing so but he did not care for and kept on destroying the same. Then I fired in defence of my property which hit him on left arm, back and abdomen while turning towards right hand side. Neither the alleged PWs, nor co-accused were present at that time. Criminal Appeal No. 75-SB of 2003 6 Q. Do you want to lead any defence evidence ? A. Yes.” Raj Kumar, Patwari, DWI proved the correct photo copy of rapat No. 227 dated 18.12.1995. Gurcharan Singh, Panchayat Secretary, DW2 had correctly recorded proceedings conducted during the meeting. DW3 Jarnail Singh son of Gurdip Singh deposed regarding alibi of Chanchal Singh and Jalandhar Singh. DW4 Anup Singh stated that on the day of occurrence, he had covered a distance of 5/7 killas and heard the noise of fire shots and unequivocally the case of the prosecution is that Arbel Singh had fired two shots. Thereafter, Karnail Singh Bhabra took a gun from the hands of the appellant and fired three shots. As per the prosecution, appellant was only standing and had not fired any shot. Whereas in a suggestion to the witnesses and in the statement under Section 313 Cr.P.C. , the present accused-appellant has taken a definite stand that it was he who had fired the shot. The trial Court held that indeed the occurrence had taken place. Bakhshish Singh has suffered simple as well as grievous injuries due to firing of shots. The trial Court further returned the finding on following points:- “15........It is clear that possession of land of Gram Panchayat had been passed over to Jarnail Singh son of Budh Singh along with Harnam Singh with standing crop of wheat thereupon. In such a situation it is difficult to believe that accused Jarnail Singh son of Budh Singh along with other would cultivate the land where wheat crop was standing in un-ripe condition. A situation can be visualized where somebody would attempt to cut un-ripe crop to the detriment of other but it cannot be said that a person in whom such crop had vested would like to reap it before the same is ripe and ready for harvesting. No explanation whatsoever in this behalf is forthcoming from the prosecution side. Bakhshish Singh is silent in this regard. Criminal Appeal No. 75-SB of 2003 7 Material omission which have come in his statement as PW2 to provide an explanation that he has made unsuccessful attempt to supress the fact that the land was no longer in possession of his brother Harbans Singh but it is un- understandable to whom the accused intended to cause harm by ploughing of panchayat land with crop already standing thereupon.” The trial Court further concluded as under:- “18....I am of the considered opinion that fires were shot by accused Jarnail Singh unlawfully under the colour of exercise of his right of private defence of property..............” After returning the above said findings, the trial Court further held that Karnail Singh had snatched the gun from the hands of present appellant Jarnail Singh. The following findings in which such conclusion has been arrived at is reproduced below:- “ 19.........Thus, it is amply clear that accused Jarnail Singh had not handed over his .12 bore gun to Karnail Singh rather latter snatched the same from him and allegedly opened firing. There is no iota of evidence on the prosecution side to the effect that Jarnail Singh had handed over his own rifle to Karnail Singh who was not entitled to possess the same for illegal purpose of opening fire to kill Bakhshish Singh, therefore, offence for which Karnail Singh has been charged has remained to be proved beyond reasonable doubt.” In a similar decision of a Division Bench of this Court of which I was a member, in Criminal Appeal No. 384-DBA of 1998-State of Haryana Versus Rajbir decided on 12.1.2011, placing a reliance upon Narain Singh v. State of Punjab (1963) 65 PLR 561 and Nishi Kant Jha v. The State of Bihar 1969(1) Supreme Court Cases 347, held as under:- Criminal Appeal No. 75-SB of 2003 8 The law on Section 313 Cr.P.C. was very well summed up in an erudite judgment by Hon’ble the Supreme Court in ‘Mohan Singh v.Prem Singh and another’ (2002) 10 Supreme Court Cases 236. TheirLordships held that the statement of the accused recorded under Section 313 Cr.P.C. is not a substantive piece of evidence or a substitute for the evidence of prosecution. Their Lordships, relying upon Nishi Kant Jha’s case (supra), observed as under: “27. The statement made in defence by the accused under Section 313 Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 Cr.P.C. of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 30. The statement of the accused under Section 313 Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a Criminal Appeal No. 75-SB of 2003 9 substitute for the evidence of the prosecution. As held in the case of Nishi Kant by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 Cr.P.C. cannot be made the sole basis of his conviction.” A Division Bench of Madhya Pradesh High Court, in ‘Mohan v. State of Madhya Pradesh’ 2005 (1) RCR (Criminal) 3, has summed up the law regarding use of statement made by the accused under Section 313 Cr.P.C. It was held therein that the purpose of the Court for recording a statement of the accused under Section 313 Cr.P.C. is to acquaint him with all incriminating circumstances, which had emerged against him, so that he is not condemned unheard. But the statement recorded under Section 313 Cr.P.C., being without oath, cannot be made the sole basis for conviction of the accused, as it is not a substantive piece of evidence. The statement under Section 313 Cr.P.C. can be used only for corroboration of the prosecution case. It was held that the proof of the prosecution case against the Criminal Appeal No. 75-SB of 2003 10 accused must depend not on the absence of explanation on his part, but upon the positive and affirmative evidence of his guilt given by the prosecution. It was further observed that where the prosecution evidence was positively held to be untrue, the Court cannot consider the piecemeal statement of the accused.” In the present case, it is stated that shots were fired by Arbel Singh and Karnail Singh Bhabra. It is difficult to hold on the basis of statement under Section 313 Cr.P.C. that appellant had fired the shot. For the sake of arguments, even of this court comes to a conclusion that 313 Cr.P.C. statement corroborated the prosecution version and thus, it cannot be said that appellant fired a shot. The conviction of the appellant cannot be sustained as the findings recorded by the trial Court that appellant was in possession of the land and he had acted in his right of private defence, is sufficient to pronounce acquittal of the appellant. The above said findings of the trial court suffer from no infirmity. As a result of above discussion, the present appeal is accepted, the conviction and sentence is set aside and the appellant is acquitted of the charges. March 7, 2011 (KANWALJIT SINGH AHLUWALIA) nk JUDGE