IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1530-SB of 2002 Date of decision: 6th April, 2010 Gian Singh … Appellant Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. M.S. Sidhu, Advocate for Mr. G.S. Sidhu, Advocate for the appellant. Mr. Manish Deswal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by Gian Singh son of Ruldu Singh. He has challenged the judgment of conviction and sentence pronounced by the Additional Sessions Judge, Sirsa on 28th August, 2002. The appellant was named as an accused in case FIR No.51 dated 05.03.1999 registered at Police Station Kalanwali under Sections 452/307/506/34 IPC and Sections 25/27 of the Arms Act. Two co-accused of the appellant, namely Pammy alias Paramjit Singh and Sukhbir Singh alias Jasbir Singh, have been acquitted by the trial Court. However, the trial Court found the appellant Gian Singh guilty of an offence under Sections 452/307/506/34 IPC and sentenced him as under: (i) For the offence u/s 307 IPC – to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.3000/-. In default of payment of fine the Criminal Appeal No.1530-SB of 2002 accused shall undergo further imprisonment for six months. (ii) For the offence u/s 452 IPC – to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/-. In default of payment of fine accused shall undergo further imprisonment for four months. (iii) For the offence u/s 506 IPC – to undergo rigorous imprisonment for a period of two years. All the sentences were ordered to run concurrently. In the present case, nobody had suffered any injury. It is a case of missed fire. This Court has to examine as to whether the version divulged by the complainant is reliable or not. Before this aspect of the matter is dealt with, it will be apposite here to notice the brief facts of the case. Jagga Singh PW-1 submitted a typed application Ex.PA to the Senior Superintendent of Police, Sirsa, when translated into English, the same reads as under: “Sir, it is respectfully submitted that on 26th February, 1999, at about 6.00 p.m. in our house situated at Kalanwali, Gian Singh came. He was armed with a double barrel gun. On coming, immediately grappled with me and said that you have got a case fixed in the High Court, upon which I stated that I am not aware of the same. On my saying so, he had put his gun on my abdomen and had pulled the trigger. The fire missed and I was saved. At that time Gian Singh was accompanied by other persons, to whom I know by face. On the road Jasbir Singh alias Sukhbir Singh alias Tembi was standing with a jeep. I being alone, made noise. My family members came and at that time the accused decamped from the spot. While leaving, the accused gave a threat that in case they get another chance, they will finish me and my family. I 2 Criminal Appeal No.1530-SB of 2002 am apprehending danger to my life at the hands of the accused, therefore, action be taken against the accused.” The above said FIR was investigated and challan was submitted against the accused appellant Gian Singh and he was charged for an offence punishable under Section 307 IPC. After the testimony of Jagga Singh PW-1 was recorded, an application under Section 319 Cr.P.C. was filed and Sukhbir Singh alias Jasbir Singh and Gian Singh were summoned to stand trial along with Pammy alias Paramjit Singh. The appellant, along with his acquitted co- accused, was charged for an offence under Sections 452/34, 307/34 and 506/34 IPC. Jagga Singh appeared as PW-1 and reiterated as to what was stated in the FIR. To appreciate the testimony of this witness, it will be necessary to reproduce his examination in chief, which reads as under: “On 26.2.99 at about 6.30 PM I was present inside my house. On a jeep Sukhbir @ Tambi son of Dalip Singh and Gian Singh son of Ruldu Singh along with one unknown and unidentified person came there. Sukhbir Singh alighted Gian Singh and unknown person who was lateron identified as Samma Singh son of Dalip Singh, and asked them to finish me because he was having a suspicion that I have got his case listed for hearing in the High Court, which I declined. On this Gian Singh put his double barrel gun on my belly and fired which missed and I was saved, otherwise I would have been killed. I raised a loud noise, upon which my wife and my neighbourer Gurbaksh Singh came there saying that they are coming and I should not worry. On seeing them coming Gian Singh left the place of occurrence in the jeep of Sukhbir Singh and threatened that I would be eliminated as and when they get the opportunity as I have been saved on that day. Thereafter, I went to Police Station Kalanwali but no action was taken by the police. Then on 3.3.99 I went to the office of S.P. Sirsa at 10.45 AM and I was directed to move the application. Then I got typed the application Ex.PA which 3 Criminal Appeal No.1530-SB of 2002 bears my signature and moved the same to the S.P.Sirsa, which was returned to me after making some endorsement. I gave the said application to ASI of P.S. Kalanwali. Out of those three accused, two are present in Court who are named Jasbir Singh @ Tambi @ Sukhbir Singh and Gian Singh s/o Mithu Singh. Third unknown person has not been challaned by the police.” In cross examination, this witness stated that he had dictated the application and the typist had typed it, and after that he had signed the same in Punjabi. This witness was confronted with the material portions of his testimony in his statement Ex.PB recorded by the Court, before the other co-accused were summoned under Section 319 Cr.P.C. In cross examination, this witness stated as under: “It is correct that Samma Singh is the real brother of Sukhbir Singh accused and both of them belong to my village. I came to know about the identification of Samma Singh about 4/5 days after the occurrence.” This witness, in cross examination, further stated as under: “Name of my son is Surjit Singh. He is facing trial u/s 376 IPC. Self-stated that the same is false. I do not know any Sukhpal Kaur wife of Mander Singh, of our village. Jasbir accused got that false case u/s 376 IPC registered against my son Surjit Singh. That case u/s 376 IPC is pending for the last 3/4 years against my son Surjit Singh.” The following lines of cross examination of this witness are also important to notice: “Only one fire was shot which missed. Accused Gian Singh pushed me and I fell down. No Butt blow was given to me by accused Gian Singh.” 4 Criminal Appeal No.1530-SB of 2002 Jagdev Kaur wife of Jagga Singh appeared as PW-2 to corroborate his testimony. HC Krishan Lal PW-3 stated that on 5th March, 1999, on receipt of application Ex.PA, he had recorded the formal FIR Ex.PA/1. Mohan Lal, Draftsman PW-4 proved the scaled site plan Ex.PB. Constable Sita Ram PW-5 stated that the application Ex.PA was handed over to MHC for recording of the FIR. ASI Jai Narain PW-6 stated that the application Ex.PA was produced before him and he had sent the same for registration of the FIR. This witness further stated that the application was received by him on 5th March, 1999 and Jagga Singh had not come to the Police Station prior to that date. This witness also deposed regarding various facets of the investigation. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to them. They denied the same. Gian Singh accused appellant gave the following version: “I am innocent. A case under Section 376 IPC was registered against Surjit Singh son of the complainant Jagga Singh who suspected that the case was registered at my instance. Due to that reason he falsely implicated me in this case.” No witness was examined in defence. I have perused the record, especially the testimony of Jagga Singh PW-1 and his wife Jagdev Kaur PW-2. I have also heard counsel for the parties. Occurrence, in the present case, had taken place on 26th February, 1999. For the first time, the version was divulged by Jagga Singh PW-1 in a typed application Ex.PA on 3rd March, 1999. This 5 Criminal Appeal No.1530-SB of 2002 application was presented before the Senior Superintendent of Police on 3rd March, 1999. Thereafter, the same was kept by Jagga Singh with him and was later-on given to the Investigating Officer ASI Jai Narain PW-6 on 5th March, 1999 and then the present case was registered. Thus, there is a delay of five days in disclosing the version to any authority and the FIR was registered after seven days. No independent witness has been examined. The entire version relayed by the complainant is highly unreliable. It is stated that the accused came armed with a 12 bore double barrel gun Ex.P1 and had put the same on the abdomen of the complainant and had fired a shot. The shot allegedly missed and the accused made no attempt to repeat the shot, as it can be safely inferred that a double barrel gun was loaded with two cartridges. Furthermore, the accused had caused no injury to anyone. It is a case of no injury. There is no allegation that even a slap was given to the complainant. The accused remained at the spot, as per the testimony of Jagga Singh PW-1, for 2 ½ minutes. He had caused no but blow. It has also come in evidence that Surjit Singh, son of the complainant, was facing trial in a case under Section 376 IPC and as per the assertion of the complainant, this case was registered at the instance of Jasbir Singh. The prosecution witnesses have not been believed qua the acquitted accused. Taking into consideration the delay in lodging of the FIR and unnatural/improbable version spelt out by the prosecution, this Court is of the opinion that it is not safe to uphold the conviction of the appellant. Hence, the present appeal is accepted. Conviction and sentence awarded upon the appellant is set aside and he is acquitted of the charges. [KANWALJIT SINGH AHLUWALIA] JUDGE April 6, 2010 rps 6