IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.455 of 1999 Reserved on: August 3, 2010 Date of Decision : October 25, 2010 State of H.P. …Appellant. Versus: Jaswant Singh …Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra. Dy. A. G. with Mr. Lovneesh Kanwar, Advocate, for the complainant. For the respondent : Mr. Rajiv Jiwan, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 3.12.1996, accused was put to trial. In terms of judgment dated 8.7.1999 passed by the learned Sessions Judge, Una, in Sessions Case No. 12 of 1998 titled as State of H.P. vs. Jaswant Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Sh. Dharam Singh, resident of village Bhindla, Tehsil Bangana, Distt. Una has two sons, namely, accused Jaswant Singh and complainant Sh. Ramel Singh (PW-1) and both have independent land in the village. Jaswant Singh also owns 46 kanals of land in the village. There 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 was some dispute about the land owned by the two brothers, therefore, three months prior to the incident, PW-1 got the land demarcated which was not acceptable to the accused. On 3.12.1996 accused Jaswant Singh came with Sh. Rajinder Singh to the village and started measuring the land and uprooting the boundary marks. This was objected to by PW-1. Accused Jaswant Singh went to his house, got his gun (Ext.P-3) and fired the same at PW-1, who sustained injuries on his chest, back and legs. Blood started oozing. Hearing cries, Smt. Sushma Devi (PW-2) wife of PW-1 arrived at the spot. When she tried to carry her husband from the fields accused Jaswant Singh again fired a gun shot which hit the tree. Accused then chased her up to the road where she had taken her husband. There he again tried to fire a gun shot but was stopped by S/Sh. Anant Ram and Hans Raj. PW-1 was taken from village Sohari Takoli on the cot by Sh. Phelli Ram (PW-3) and other persons. He was further taken in an Ambulance to the District Hospital, Una, where medical treatment was given to him. At Una PW-1 lodged report (Ext.PA) on the basis of which F.I.R No. 102/96 dated 3.12.1996 under Sections 307, 506 IPC (Ext.PG) was recorded by HC Karamdin (PW-6) at Police Station, Bangana. Matter was investigated by SI Sarup Chand (PW-10), who took into possession blood stained shirt (Ext.P-1) and pant (Ext.P-2) belonging to PW-1 vide memo (Ext.PC). He prepared site plan (Ext.PL) and also took into possession gun (Ext.P3) along with its licence vide memo Ext.PD.Two fired cartridges (Ext.P-4 & Ext.P-5) were recovered vide memo (Ext.PE). Five live 3 cartridges (Ext.P-6 to Ext.P-10) were recovered vide memo (Ext.PF). Sh. Sarup Chand deposited the sealed articles with HC Karamdin (PW-6), MHC, Police Station, Bangana. Sh. Karamdin handed over three packets to Constable Dalbir Singh (PW-7) to be taken to CFL, Laboratory at Chandigarh and packet containing clothes to FSL, Junga through Constable Sukhchain. Reports were received from the Laboratories and with the completion of the investigation challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 307 IPC to which he did not plead guilty and claimed trial. In order to prove its case prosecution examined 14 witnesses. Statement of accused under Section 313 Cr.PC was also recorded. 4. By giving him benefit of doubt the Court below acquitted the accused of the charged offence, hence the present appeal. 5. Gun (Ext.P-3) is owned by the accused is not in dispute. It was a licenced weapon is also not in dispute. A single shot was fired is also not in dispute. In defence, accused has come out with the following version: “I was measuring my land on 3.12.1996. Rumel Singh abused me. I asked him not to abuse me. He proclaimed to teach a lesson to me. He returned to his house. He came out with a pionard towards me to hit with the pionard. My father was working nearby my field. My father caught hold of me and kicked me at the back. The gun which I was welding went off as I fell down on the ground. I do not know whether the pallet hit the complainant Rumel Singh. The complainant 4 Rumel Singh had quarreled with me several times before taking place of this incident. For that reason I always used to keep the gun with me. I am innocent. I have been falsely implicated in this case.” 6. In this background prosecution evidence needs to be examined. According to PW-1, 2-3 months prior to the date of incident he got his land demarcated. However, the same was not acceptable to the accused. Further according to him on 3.12.1996 he saw accused along with Rajinder Kumar measuring the land with a measuring scale. At that time his wife Sushma Devi (PW-2) was present. He protested and told the accused that neither was he Kanungo nor Patwari and the boundary marks fixed by the patwari during the course of demarcation should not be disturbed. Accused replied that he would show who are Kanungos and patwaries. Saying so accused went to his house along with Rajinder and returned to the field with the gun. Accused aimed and fired at him. He did not know where the pallet had hit but however after some time he felt that he was bleeding from chest, back and legs. His wife caught hold of him. Accused again fired another shot which missed him but hit a nearby tree. None came at the spot at that time. His wife carried him to a place on the road where there are 5-6 houses. S/Sh. Hans Raj, Phelli Ram, Anant Ram amongst others came there. Accused also followed them with the rifle upto that place. Accused again wanted to shoot but S/Sh. Anant Ram and Hans Raj stood in front of the rifle and as such he did not fire the third shot. However, accused kept on sitting there. Witness was carried to the house of Phelli Ram from where S/Sh. Hans Raj, Phelli Ram and Gian Chand carried him up to village Sohari Takoli, where they met Sh. Jiwan Singh, Pradhan Gram 5 Panchayat, Bhindla and Sh. Pawan Kumar, Chairman, Zila Parishad. They then carried him in an Ambulance to the hospital at Una where he got the matter reported (Ext.PA). 7. That accused was measuring the land is not in dispute but however prosecution has not placed anything on record to prove the fact that prior to the date of incident, PW-1 had got the land demarcated through patwari or that patwari had carried out demarcation and fixed certain boundary marks. Now, Rajinder Singh has not been examined by the prosecution. Sh. Rajinder Singh was also not associated during investigation. He was an independent witness. Incident is alleged to have taken place in his presence. There is also no explanation for the same. The very genesis of the incident appears to be doubtful. 8. We also find that this witness has made several improvements from his earlier version (Ext.PA) recorded by the police with which he was confronted. He admits his version that boundary marks were fixed during the course of demarcation; presence of Rajinder Singh at the spot; presence of his wife at the time when Patwari measured the fields; accused aimed the gun in the presence of Hans Raj and Anant Ram is not there. He also admits that in his statement there is no mention of the fact that he was taken inside the house of Phelli Ram and from there was taken to village Sohari Takoli. Reference of meeting Pawan Kumar and Jiwan Singh is also missing. Importantly he did not make any grievance that his statement had been wrongly recorded by the police. According to the witness, police had incorrectly recorded his statement portions ‘A’ to ‘A’ in Ext.PA, wherein it is recorded that there is a land dispute between the parties. He is simply trying to deny his statement. 6 9. Further this witness cannot be said to have come out with complete truth. His statement does not inspire confidence. It also stands contradicted by the version given by his wife. In his examination-in-chief, he states that when the accused fired the first shot none was present but however later on he admits that his father was tilling another field at a short distance of 200 yards from the spot. According to him, his father did not come to the field at that time. He admits that the houses of S/Sh. Mansha Ram and Kashmir Singh are next to his fields and the distance between the spot and the road when he was carried by his wife is one furlong. His version that none came at the spot and that his wife alone carried him up to the road appears to be doubtful. According to him two shots were fired. It is not believable that hearing the same his father would have not come to the spot. It is not that fields were not visible from the spot or gun shot could not be heard. It is also not the case of the prosecution that none was present in the houses of S/Sh. Mansha Ram and Kashmir Singh. The witness is a young man of 44 years and presumably having good health. For a wife to carry her husband without attracting any attention from anyone appears to be doubtful. Distance is also not short. 10. Most importantly he admits that the accused had shot him from a distance of 30 mtrs. This fact was also found to be true by the Investigating Officer. Now this version stands belied by the medical evidence on record. As per the medical report, wound found on his body had blackened. According to the experts, namely, Dr. Aruna Mehta (PW-11) and Dr. S. K. Nanda (PW-12) blackening of the wound would only occur if the shot from the fire-arm is fired at a distance of 4 feet or less. While taking this view, we are also supported by the judgment delivered by the 7 Division Bench of Allahabad High Court in State of U.P. vs. Ram Asray & Ors., Crimes 1993 (2) 615. 11. Smt. Sushma Devi (PW-2) has essentially corroborated the version of PW-1. However, version of PW-1 to the effect that he had told the accused that neither was he Kanungo nor patwari and, therefore, should not disturb the boundary marks or that accused had proclaimed that he will show who is patwari or kanungo does not find mentioned in her statement. According to this witness, she had dragged her husband upto the road head. Site plan prepared does not corroborate this version. Even PW-2 has made several improvements in her statement recorded by the police with which she was confronted. She admits that in statement mark ‘B’ there is no reference of the accused having fired the gun shot in her presence and the accused having followed them upto the road head; Further this witness states that daughter of Phelli Ram was getting married in the village at the relevant time and 4/5 persons of the village carried her husband to Sohari Takoli. She also accompanied her husband. Now the version of PW-1 that S/Sh. Hans Raj, Phelli Ram and Gian Chand had carried him to village Sohari Takoli stands contradicted by her. Further, version of PW-1 to the effect that he met S/Sh. Jiwan Singh and Pawan Kumar at Sohari Takoli is not corroborated by PW-2. 12. Importantly neither at Sohari Takoli nor at Una, presence of father of the parties is shown by the police. He must have been physically fit as he was working in the fields. In view of our discussion his absence only renders the defence taken by the accused to be plausible. 13. Now Sh. Phelli Ram (PW-3) has a totally different version to narrate. According to him, he heard Smt. Sushma Devi crying and saying 8 “Bachao Bachao”. He rushed to the spot and noticed that Sh. Ramel Singh and his wife Sushma Devi were lying on the road underneath a Bohar tree. After sometime, accused Jaswant Singh came there with a gun. He was in a fit of rage. Apprehending that accused may fire at Ramel Singh he thought it fit to conceal them from the sight of the accused. Accordingly, he took Ramel Singh and Sushma Devi inside the house of his brother. Numerous persons including Hans Raj and Anant Ram were present there. He pacified the accused and unloaded the gun. He contradicts the version given by PW- 1, according to whom it were S/Sh. Anant Ram and Hans Raj who came in front of the rifle and for that reason accused did not fire the gun shot second time. Further, who is this brother of Phelli Ram, who all were also present at the spot have not been disclosed by the police, nor have they been examined in Court by the prosecution. Even Anant Ram and Hans Raj have been left out. Importantly this witness has also made several improvements from his earlier version recorded by the police u/s 161 Cr.PC (mark G). He admits his version that Ramel Singh had told him that the accused had fired the gun shot; accused was in a fit of rage and he pacified him after unloading the gun does not find mentioned therein. 14. In our considered view, all the three prosecution witnesses have not come out with complete truth. Their statements cannot be said to be truly trustworthy. Material contradictions as noticed above renders the prosecution case to be doubtful. The other witnesses are police and official witnesses. 15. It cannot be said that prosecution has been able to prove its case by leading, clear, cogent and consistent evidence on record. The genesis and the origin of the occurrence appears to be shrouded 9 in deep mystery and the presence of the spot witnesses to be highly doubtful. Presence of the witnesses to the recovery memo at the spot is also un-explainable. Sh. Man Chand (PW-5) who witnessed recovery memo (Ext.PF) lives at a distance of 40 kms. from Bangana. 16. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. [ ( Sanjay Karol ), Judge. October 25, 2010. (rana)