Crl. Appeal No. 652-DBA of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 652-DBA of 1997 Date of Decision : May 08, 2008. State of Haryana .... Appellant Vs. Bhim Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P.S.Sullar, DAG, Haryana for the appellant. Mr. Vivek Singla, Advocate and Mr. B.S.Saroha, Advocate for the respondents. * * * L.N.MITTAL, J. : This is appeal of State of Haryana assailing judgment dated 03.03.1997 of learned Additional Sessions Judge, Rohtak, thereby acquitting respondents Bhim Singh, Jai Narain, Khazan Singh, Dilbag and Pappu @ Paramjit of the charge under Section 148 of the Indian Penal Code (in short – the IPC) and Section 307 IPC read with Section 149 IPC in FIR No.125 dated 21.07.1995, under Sections 307/148/149 of the IPC, registered at Police Station Beri, District Rohtak. Crl. Appeal No. 652-DBA of 1997 2 The prosecution case is that on 21.07.1995 at about 06:30 A.M., complainant Rajesh was ploughing the field of one Rishi with tractor. All the five respondents came there and started abusing the complainant and starting quarreling with him. Pappu – respondent no.5, who had a pistol of .12 bore, fired a shot on the complainant, hitting its pellets on the left side of his face. The complainant alighted from the tractor and started running away. Thereupon, Dilbag – respondent no.4 also fired a shot and its pellets also hit the complainant. All the five respondents chased the complainant. However, the complainant raised alarm, which attracted Ishwar Singh and Diwan Singh, who witnessed the occurrence and rescued the complainant. The complainant reported the matter to the police by making statement Ex.P-E and on its basis, FIR Ex.P-E/1 was registered. On medico-legal examination of the complainant, as many as 14 injuries were found on his person. Necessary investigation proceedings were conducted by the police. Shirt and pyjama of the complainant were also seized by the police. Statements of witnesses were recorded during investigation. Respondent no.5, after arrest on 24.07.1995, made disclosure statement Ex.P-H and got recovered a country-made pistol, for which a separate case was registered against him. Similarly, respondent no.4 on 30.07.1995 made disclosure statement Ex.P-M and got recovered a country-made pistol, for which separate case was registered against him. Remaining respondents were also arrested during investigation. On X-Ray examination of the injured-complainant, radio opaque shadows of metallic density were seen in chest, abdomen, left arm and pelvis of the complainant. The said shadows were of pellets. All the injuries were caused by pellets fired from a fire arm. Charge under Section 148 IPC and Section 307 IPC read with Section 149 IPC was framed against all the respondents, who pleaded not Crl. Appeal No. 652-DBA of 1997 3 guilty to the charge and claimed trial. Dr. Virender Kumar Jain (PW-1) stated that on medico-legal examination of the complainant, 14 injuries, as detailed in Medico Legal Report (in short – MLR) (Ex.P-A), were found on the person of the complainant. Dr. Jain also later on gave opinion (Ex.P-C) that all the injuries were simple in nature and caused by pellets shot from a fire arm. Dr. Niraj Aggarwal (PW-2) treated the complainant in P.G.I.M.S. Rohtak. He stated that X-Ray examination report (Ex.P-D) revealed that there were metallic density shadows in the chest, abdomen, left arm and pelvis of the complainant. Inspector Shiv Charan (PW-3), Head Constable Murari Singh (PW-4) and retired Patwari Sewa Ram (PW-9) are formal witnesses. Dr. Sandip Makin (PW-5) proved X-Ray report (Ex.P-D) regarding multiple radio opaque shadows of metallic density in abdomen and left arm and also such shadows in chest and pelvis vide Report Ex.P-D. Rajesh complainant as PW-6 and eye-witness Diwan Singh (PW-7) broadly stated according to the prosecution version as already narrated herein above. Rajesh also stated that he made statement Ex.P-E to the police and his shirt and trousers were taken into possession by the police vide Memo Ex.P-G. Diwan Singh stated that respondent no.5 on 24.07.1995, after making disclosure statement Ex.P-H, got recovered a pistol, which was seized by the police. Azad Singh (PW-8) stated that on 30.07.1995, Dilbag Singh, after making disclosure statement Ex.P-M, got recovered a pistol. ASI Karan Singh (PW-10) partly investigated the case and stated about the same whereas ASI Chhote Lal (PW-11) is the main Investigating Officer and has stated in detail about the investigation. The prosecution also tendered in evidence report Ex.P-J of Forensic Science Laboratory. According to this report, both the pistols allegedly recovered from respondents no.4 and 5 are fire arms as defined in Crl. Appeal No. 652-DBA of 1997 4 the Arms Act and their firing mechanisms were found in working order and the said pistols had been fired through, but time of their last firing could not be given. Further, holes in the shirt and pyjama of the complainant had been caused by pellet projectiles. The shirt and pyjama were stained with human blood stains. The respondents, in their examination under Section 313 of the Code of Criminal Procedure, denied all the incriminating circumstances and claimed to be innocent. In their defence, the respondents examined Constable Randhir Singh (DW-1) to prove certain documents, who made statement from Daily Diary Report of the Police Station and proved Calendara (Ex.D-X) under Sections 107 and 151 of the Code of Criminal Procedure. Documents Ex.D-Y (a judgment in some previous case) and Ex.D-Z (statement in Arms Act case against Dilbag Singh – respondent no.4) were also tendered in evidence. The learned Additional Sessions Judge vide impugned judgment dated 03.03.1997 extended the benefit of doubt to all the respondents and acquitted them. Feeling aggrieved, the State has preferred the instant appeal. We have heard learned counsel for the parties and perused the records. Learned State counsel vehemently contended that all witnesses of the prosecution have supported the prosecution case. Statement of injured- complainant Rajesh is corroborated by eye witness Diwan Singh (PW-7). It was also argued that statements of both these witnesses are further corroborated by medical evidence as 14 injuries caused by pellets were found on the person of the complainant and many pellets were embedded in his body as revealed by X-Ray examination showing radio opaque shadows of metallic density. It was also argued that the prosecution case is further strengthened by Report Ex.P-J of Forensic Science Laboratory showing that Crl. Appeal No. 652-DBA of 1997 5 holes in the shirt and pyjama, which the complainant was wearing at the time of occurrence, had been caused pellet projectiles and the said clothes were also stained with human blood stains. It was also contended on behalf of the State that a pistol each, which was recovered at the instance of respondents no. 4 and 5, also corroborated the prosecution case. On the other hand, learned counsel for the respondents raised various contentions, which also found favour with the trial court, as would be discussed herein after. We have carefully considered the rival contentions and come to the conclusion that guilt of respondents no.4 and 5 for offence under Section 307 IPC is proved beyond reasonable doubt, whereas the impugned judgment of acquittal qua respondents no.1 to 3 deserved to be upheld. As regards respondents no.1 to 3, there is no overt act attributed to them in the occurrence. There are only vague and general allegations against them along with respondents no. 4 and 5 that all of them starting abusing the complainant and started quarreling with him and in the end, all of them chased the complainant. There are specific allegations against respondents no.4 and 5 that they fired one shot each from their respective pistols. However, respondents 1 to 3 did not cause any injury to the complainant, nor committed any other overt act except alleged abusing, quarreling and chasing. There is also general tendency to implicate as many persons from the accused party as possible. Taking an overall view of the evidence on record, respondents no.1 to 3 deserve the benefit of doubt as extended by the trial court and the impugned judgment qua them is not liable to be reversed. However, guilt of respondents no.4 and 5 is fully established by cogent evidence led by the prosecution. In this regard, we have statement of injured-complainant Rajesh, which has been fully corroborated by statement Crl. Appeal No. 652-DBA of 1997 6 of eye-witness Diwan Singh (PW-7). FIR was also lodged very promptly giving detailed version of the occurrence. Statements of both these witnesses are further corroborated by medical evidence showing that the complainant suffered 14 injuries caused by pellet projectiles. Pellets were also found embedded in the body of the complainant as revealed by X-Ray examination. The shirt and the pyjama, which the complainant was wearing at the time of occurrence, were having holes which were caused by pellet projectiles. There were also human blood stains on the said clothes of the complainant. This evidence is sufficient to bring home the charge against respondents no.4 and 5 beyond reasonable doubt. They did not plead any ground for their false implication in their statements under Section 313 of the Code of Criminal Procedure. There is thus no reason to doubt the prosecution evidence in so far as respondents no.4 and 5 are concerned. Learned counsel for the respondents contended that there was previous enmity between the parties, providing motive for false implication of the respondents. However, enmity is a double-edged weapon. The enmity also provided motive to the respondents to cause injuries to the complainant. Because of previous enmity, it may be said that respondents no.1 to 3 were also roped in, although the injuries were caused by respondents no.4 and 5 only. False implication of respondents no.4 and 5 is reasonably ruled out because of the large number of injuries suffered by the complainant. All these injuries had been caused by pellet projectiles. In their wish to implicate the respondents falsely, the complainant party would not have allowed the real culprits to go scot free. The learned trial court observed that there has been some delay in lodging of FIR and the statement of complainant might not have been recorded at the time and place it purports to have been recorded. However, this technical approach of learned trial court cannot be accepted. After the Crl. Appeal No. 652-DBA of 1997 7 occurrence took place at about 06:30 A.M., arrangement had to be made for conveyance for taking the injured-complainant to hospital and on the way at Bus Stand Beri, statement Ex.P-E was made by the complainant to the police when the police party happened to meet them there. Police Station Beri is about 18 kilometers from the place of occurrence as mentioned in the FIR Ex. P-E/1. Sometime also must have been consumed in taking the injured from Village Chhochhi, where the occurrence took place, to Beri and then some time is also taken in narrating the incident to the police and thereafter in recording the statement and police proceedings, which in the instant case, concluded at 10:00 A.M. Therefore, it cannot be said that statement was not recorded at the time or place on which it purports to have been recorded. Some discrepancy in the statement of Diwan Singh (PW-7) regarding the time, at which the police reached the Village, cannot be said to be very material, particularly because the witness was examined more than a year after the occurrence and is a villager. The learned trial court also doubted the prosecution case on the ground that there was no evidence to show that the field in question had been taken on lease by the complainant party. However, lease of the said field in favour of the complainant party was not at all relevant to prove the occurrence. Non- seizure of the tractor from the spot by the police is wholly immaterial to prove the guilt of respondents no.4 and 5. Learned trial court also doubted the veracity of Diwan Singh (PW-7), dubbing him interested and chance witness. However, the testimony of Diwan Singh cannot be doubted because he cannot be said to be interested witness at all. Learned trial court also had a doubt if the medical evidence was compatible with the prosecution version. However, medical evidence fully corroborates the ocular account of the occurrence. Learned trial court Crl. Appeal No. 652-DBA of 1997 8 observed that no radio opaque shadows were found qua some injuries which could not, therefore, be said to have been caused by pellets. This approach of learned trial court is completely erroneous. It is not essential that all pellets should get embedded in the body of the person hit with the same. Some pellets, after hitting the person and causing wounds, may also fell down. There is categorical opinion of doctors supported by X-Ray report that injuries had been caused by pellets shot from fire arm. There is no material on record to doubt the same. Learned trial court also observed that most of the injuries were blackish in colour and therefore, the firing was from close range which is contradicted by the distance of fire stated by the witnesses. This approach of the trial court also cannot be upheld. The complainant, while he was being shot at, could not be expected to have observed and measured the distance exactly. Learned counsel for the respondents also submitted that Dr.Virender Kumar Jain (PW-1) has stated that he had asked the police official, who brought the patient, to show him the clothes which the patient was wearing at the time of suffering the injuries, but those clothes were not shown to him. It was argued on its basis that the clothes in question were not shown to the doctor. However, this so called discrepancy cannot be said to be fatal to the prosecution case. No such note, as stated by the doctor in cross-examination regarding the clothes of the injured, has been given in the MLR (Ex.P-A), and it appears to be somewhat improbable that the doctor remembered this fact orally while appearing in the witness box more than eight months after medico legal examination of the complainant. On the other hand, for opinion regarding kind of weapon used, the case was referred to Forensic Experts and obviously, the clothes of patient could be referred to Forensic Experts. On the contrary, the police obtained opinion of Dr. Jain on 22.09.1995 i.e. two months after the occurrence regarding Crl. Appeal No. 652-DBA of 1997 9 kind of weapon used. It was in said opinion (Ex.P-C) dated 22.09.1995 that the Investigating Officer was instructed to bring the clothes worn by the patient at the time of assault. If the said clothes were not produced before the doctor while obtaining his opinion regarding kind of weapon used (two months after the occurrence), the same would not effect the prosecution case at all. In the MLR, there is only a note that the patient was not wearing upper clothes, but it is not clear as to what he was wearing at the time of medico legal examination. In any event, non-production of the clothes of injured-complainant, which he was wearing at the time of occurrence, before the doctor after two months of the occurrence for obtaining opinion regarding kind of weapon used, has no adverse bearing on the prosecution case at all. Non-production of the said clothes during trial in the Court would also not be fatal to the prosecution case. In view of the aforesaid, we find that the reasons contained in the impugned judgment for doubting the prosecution case, as also advanced before us on behalf of the respondents by their counsel, are not sustainable at all in so far as the case against respondents no.4 and 5 is concerned. The prosecution evidence qua respondents no.4 and 5 is very trust worthy and sufficient to prove their guilt beyond reasonable doubt. While recording this finding, we are not oblivious of our limitations in reversing a judgment of acquittal. However, in the instant case, the only reasonable view that is possible from the material on record, is that guilt of respondents no.4 and 5 is proved beyond reasonable doubt. The view taken by learned trial court for acquitting respondents no.4 and 5 is not a reasonable or possible view from the evidence on record. As a necessary consequence of the discussion aforesaid, we upheld the acquittal of respondents no.1 to 3 by the trial court, but we set aside the acquittal of respondents no. 4 and 5 and convict them of the Crl. Appeal No. 652-DBA of 1997 10 offence punishable under Section 307 IPC. The instant appeal is accordingly dismissed qua respondents no.1 to 3 and allowed qua respondents no. 4 and 5. As regards sentence, after hearing learned counsel for the parties on sentence to be awarded to convicts-respondents no.4 and 5, we sentence them to undergo rigorous imprisonment for two years each and also to pay compensation of Rs.50,000/- each, payable to injured- complainant Rajesh Kumar, for offence under Section 307 IPC. The appeal stands disposed of accordingly. ( L.N.MITTAL ) JUDGE May 08, 2008 ( ADARSH KUMAR GOEL) monika JUDGE