Criminal Appeal No. 351-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 351-SB of 1997 Date of Decision : 15.05.2009 1. Mahain Singh son of Makhan Singh Bairagi aged 45 years r/o Ahata Jagir Singh Naraingarh. 2. Parkash Wati wife of Mahain Singh Bairagi aged 50 years r/o Ahata Jagir Singh Naraingarh. 3. Babu Ram son of Buta Ram Bairagi, aged 28 years r/o Ahata Jagir Singh, Naraingarh. ...Appellants Versus State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K.S. Kahlon, Advocate, for Mr. D.S. Pheruman, Advocate, for the appellants. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for the respondent – State. * * * * SHAM SUNDER, J. This appeal is directed against the judgement of conviction, and the order of sentence dated 25.04.97, rendered by the Court of Additional Sessions Judge, Amritsar, vide which, it convicted the accused, and sentenced them, as under:- Criminal Appeal No. 351-SB of 1997 2 Names of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 (i) Babu Ram (a) Under Section 307 of the Indian Penal Clode. To undergo rigorous imprisonment for a period of five years, and to pay a fine of Rs. 200/-, in default thereof, to further undergo rigorous imprisonment for a period of six months. (b) Under Section 25 of the Arms Act. To undergo rigorous imprisonment for a period of one year. (c) Under Section 27 of the Arms Act. To undergo rigorous imprisonment for a period of six months. (ii) Mahain Singh (iii) Parkash Wati (d) Under Section 307 read with Section 34 of the Indian Penal Code. To undergo rigorous imprisonment for a period of five years each, and to pay a fine of Rs. 200/- each, in default thereof, to further undergo rigorous imprisonment for a period of six months each. Criminal Appeal No. 351-SB of 1997 3 All the substantive sentences were, however, ordered to run concurrently. 2. The facts, in brief, are that, Tarsem Lal, complainant, suffered a statement, disclosing that he was the President of Krishna Mandir. It was further stated by him, that there was a tavern (ahata) of Jagir Singh near the temple where Mahain Singh and others were residing. There was a vacant plot of Baba Kikri Shah on the G.T. Road at a distance of 30 ft from the boundary wall of the temple. There was a tomb (samadh) of Baba Kikri Shah on the land known as the property of Baba Kikri Shah. Mahain Singh, accused, was the sewadar. He was residing there alongwith his family members. There was a street sanctioned by the Municipal Corporation, in between the Ahata of Jagir Singh and the temple. The wall of the temple fell outside the jurisdiction of the public street. 3. On 08.05.94, at about 10.00 AM, complainant Dewan Chand, Vishawar Nath, Vinod Kumar, Rakesh Kumar, Jagtar Lal, and some others including Mohinder Singh, were constructing kitchen of the temple. Mahain Singh and other accused came there. They obstructed them from constructing the wall of the kitchen. Mahain Singh, was insisting that the place where they were raising wall was a public street, but they told him, that the said part of the land was of the temple. Mahain Singh, accused, instigated his co-accused to teach them a lesson for raising construction of the wall. Thereafter, they started demolishing the wall. Mahain Singh, told his son Babu Ram, to lift the Criminal Appeal No. 351-SB of 1997 4 gun and fire shots at the complainant and his companions. Babu Ram took the gun and went on the roof top of the building and started firing at them. Jagtar Singh, received injuries, from the gun shots. The other accused also went upstairs and started throwing brick bats by standing on the roof of the building. Parkash Wati, accused, had a belt containing live cartridges and she was loading the gun and firing at them. Second shot was fired by Babu Ram at Mohinder Singh, as a result whereof, he was injured and the third shot was fired at Rakesh, who was also injured. The injured were removed to the hospital, where they were medically examined. The investigation of the case was conducted by Kulbir Singh, Assistant Sub Inspector. After the completion of investigation, the accused were challaned. 4. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections148 and 307 read with Section 149 of the Indian Penal Code, and 25, and 27 Arms Act, was framed against the accused, which was read over and explained to them, to which, they pleaded not guilty and claimed judicial trial. 5. The prosecution, in support of its case examined Dr. Radhe Saran, Emergency Medical Officer, Civil Hospital, Amritsar (PW1), who deposed that on 08.05.94, at about 12.15 PM, he examined Rakesh Kumar son of Jagdish Raj, aged 28 years, resident of Naraingarh, Chheharta, and found the following injuries on his person:- Criminal Appeal No. 351-SB of 1997 5 (i) A lacerated wound .5 cm x .5 cm was present on the front of abdomen on left side .9 cm above the umbilicus at two clock position. Margin of the wound was inverted and echymosed. (ii) A lacerated wound .5 cm x .5 cm was present on the front of left thigh 12 cm above the left knee joint. Margin of the wound was inverted and echymosed. (iii) A lacerated wound .5 cm x .5 cm was present on the front left leg 15 cm below the left knee joint. Margin of the wound was inverted and echymosed. (iv) A lacerated wound .5 cm x .5 cm was present on the left leg .5 cm below the injury No. 3. Margin of the wound was inverted and echymosed. (v) A lacerated wound .5 cm x .5cm was present on the inner side of left leg .18 cm below the knee joint. Margin of the wound wa inverted and echymosed. All the five injuries were kept under observation subject to xray report. The probable duration was within 12 hours. All the injuries were caused by fire arm. After the receipt of xray report he declared all the injuries simple in nature. 6. On the same day at about 12.25 PM., he medico-legally examined Mohinder Pal, and found the following injuries, on his person:- (i) A lacerated wound .5 cm x .5 cm was present on the left side of upper lip. Margin of the wound was inverted and echymosed. (ii) A lacerated wound 1 cm x .5 cm was present on inner side of upper lip on left side. Margin of the wound was inverted and echymosed. (iii) Left upper canine tooth is missing and at the root of the tooth clotted blood was present. (iv) A lacerated wound .5 cm x .5 cm was present on the front of scalp 2 cm above the hairline Criminal Appeal No. 351-SB of 1997 6 All the injuries were caused by fire arm within the probable duration of 12 hours. Injuries No. 1, 2 and 4, were kept under observation subject to xray report. On receipt of the xray report, injuries No. 1, 2 and 4, were declared simple in nature. Injury No. 3, was kept under observation, subject to dental surgeon opinion. 7. On the same day, at about 12.45 PM, he medico-legally examined Jagtar Lal son of Mula Ram, aged 52 years, resident of Naraingarh Chheharta, and found the following injuries, on his person:- (i) A lacerated wound .5 cm x .5 cm was present on the front of left upper thigh 12 cm below and inner to the anterior superior iliac spine. Margin of the wound was inverted and echymosed. (ii) A lacerated wound .5 cm x .5 cm on the inner side of left knee joint. Margin of the wound was inverted and echymosed. (iii) A lacerated wound .5 cm x .5 cm was present on the inner side of left thigh 7 cm above the left knee joint. Margin of the wound was inverted and echymosed. (iv) A lacerated wound .5 cm x .5 cm with inverted and echymosed margin was present in the inner side of left thigh .17 cm above the knee joint. (v) A lacerated wound .5 cm x .5 cm with inverted and echmosed margin was present on the front of left leg .12 cm below the knee joint. (vi) A lacerated wound .5 cm x .5 cm was present on the front of left leg .15 cm below the left knee joint. Margin of the wound was inverted and echymosed. (vii) A lacerated wound .5 cm x .5 cm with inverted and echymosed margin present on the medial side of left foot 7 cm below the medial malieolus. (viii) A lacerated wound .5 cm x .5 cm with inverted and echymosed margin present on the front of right leg .14 cm below the right knee joint. Criminal Appeal No. 351-SB of 1997 7 (ix) A lacerated wound .5 cm x .5 cm was present on the inner aspect of right thigh .14 cm above the knee joint. Margin of the wound was inverted and echmosed. (x) A lacerated wound .5 cm x .5 cm was present on the left chest .14 cm below the left nipple at 7 O clock position. Margin of the wound was inverted and echymosed. (xi) A lacerated wound .5 cm x .5 cm was present on the front of left elbow joint. Margin of the wound was inverted and echymosed. (xii) A lacerated wound .5 cm x .5 cm with inverted and echymosed margin was present on the front of left upper arm .14 cm below top of left shoulder joint. (xiii) A lacerated wound .5 cm x .5 cm with inverted and echymosed margin was present on the back of left hand .2 cm below the wrist joint. (xiv) A lacerated wound .5 cm x .5 cm with inverted and echymosed margin was present on the back of left thigh .7 cm above the joint of knee joint. All the injuries were kept under observation. All the injuries were caused by fire arm. On receipt of the xray report, injuries No. 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 13, and 14, were declared simple in nature 8. Rishi Ram, draftsman (PW2), proved the site plan PD. Head Constable Lakhwinder Singh (PW3), proved the recovery memos PE to PG. 9. Tarsem Lal, (PW4), and Rakesh Kumar (PW9), injured, did not support the case of the prosecution, when they were recalled for further cross-examination, whereas Mohinder Lal, injured (PW8), and Jagtar Lal (PW10), the other injured, did not support the case of the prosecution, when they were examined initially. 10. Dr. Surinder Jagat (PW5), on the application PW5/A Criminal Appeal No. 351-SB of 1997 8 moved by the Police, declared Jagtar Singh, fit to make statement, vide endorsement PW5/B. 11. Balwinder Singh, Constable (PW6), deposed with regard to the handing over the Special Report to the Illaqa Magistrate. 12. Kulbir Singh, Assistant Sub Inspector (PW7), stated that he recorded the statement PH of Tarsem Lal, on the basis whereof, the first information report, was registered. He also conducted the investigation. 13. Prithvi Chand, Constable (PW11), proved his affidavit PW11/A. 14. Mukesh Kumar, Head Constable (PW12), was the Moharrir Head Constable in the Police Station with whom the case property was deposited in this case. 15. Naresh Kumar, Constable (PW13), was handed over a parcel, duly sealed, with the seal, bearing impression KS and he deposited the same in the office of the Chemical Examiner. Thereafter, the Public Prosecutor for the State, tendered into prosecution evidence report of the Chemical Examiner PX/1, and closed the same. 16. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Mehain Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, took up the following plea:- “I am innocent. There is a ahata of Jagir Criminal Appeal No. 351-SB of 1997 9 Singh near the Krishna temple. I and my wife Parkash Wati purchased the same in 1989 and we have been using the vacant land as a passage belonging to us. Before the alleged occurrence, we also obtained a decree of injunction in this regard against Makhan Singh, Lali etc. On the day of occurrence, I and my wife were restraining the persons who were collected there and we requested not to raise any construction in the ahata of Jagir Singh but those persons started throwing brick bats at us. About 300/400 persons were present there and out of them some fired shots. I and my wife did not fire any shot as we were empty handed. We were just requesting them not to raise any construction in the ahata but those persons inflicted injuries after entering my house which is situated near the temple. They have also torn house hold goods lying in my house. Later on, with the help of Police, they implicated me and my wife and other persons falsely. The gun is a licensed gun which is in my name. It was lying in my house in the iron peti which the Police forcibly took into possession from my iron peti lying in my house. The Police helped the complainant party as the complainant party men are influential persons. After sending me and my wife in jail, the Police illegally got the construction made in the ahata illegally and forcibly. When I was produced before the Magistrate, we showed our injuries to the Magistrate who ordered the Police to get ourselves medically examined while we were in custody. Other accused were not present at that time.” 17. Parkash Wati, accused, also took up the same plea, as was taken up by Mehain Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure. 18. Babu Ram, accused, in his statement, under Section 313 of Criminal Appeal No. 351-SB of 1997 10 the Code of Criminal Procedure, stated that he was involved in this case due to enmity of the complainant with Mehain Singh, and Parkash Wati. 19. Sohan Lal, Surjit Lal, Vidya, Veera Devi, and Bhagwan Dass @ Bau, accused, also took up the same plea, as was taken up by Babu Ram, accused, in his statement, under Section 313 of the Code of Criminal Procedure. The accused examined Dr. Rattanjit Singh (DW1), and Sukhwinder Singh (DW2), in their defence. Thereafter, the accused, closed the defence evidence. 20. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused (now appellants) as stated above. Mota Singh, accused, was discharged, whereas Bhagwan Dass @ Bau, Veera Devi, Surjit Lal, Vidya, Baldev Raj, and Sham Lal, accused, were acquitted. 21. Feeling aggrieved, the instant appeal, was filed by the appellants. 22. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 23. The Counsel for the appellants, at the very outset, submitted that though all the injured witnesses did not support the case of the prosecution, yet the trial Court, took a wrong view, in coming to the conclusion that the accused committed the offences. He further submitted that the trial Court was required to take into consideration the statements of Tarsem Lal and Rakesh Kumar, in entirety, and not by Criminal Appeal No. 351-SB of 1997 11 tearing the same into pieces. He further submitted that the trial Court, was wrong, in coming to the conclusion that the statements of these witnesses which were recorded before their recall for further cross- examination were only to be taken into consideration, for the purpose of recording their conviction, and awarding sentence. He further submitted that the trial Court, thus, took a completely wrong view of the evidence of these witnesses, to come to the conclusion, that the accused committed the offences. He further submitted that the judgement of conviction and the order of sentence of the trial Court were liable to be set-aside. 24. On the other hand, the Counsel for the respondent, submitted that the trial Court, was right, in taking into consideration the statements of Tarsem Lal, PW4, and Rakesh Kumar, PW9, which were recorded before they were summoned for further cross-examination to come to the conclusion, that the accused had committed the offences. 25. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the contentions raised by the Counsel for the appellants being grounded on sound footing, are liable to be accepted. Tarsem Lal, PW4, and Rakesh Kumar, PW9, two injured, no doubt, initially supported the case of the prosecution. However, an application was moved by the defence Counsel for further cross-examination of these witnesses. That application was allowed by the Court. Both these witnesses were summoned for further cross-examination. Their further cross- Criminal Appeal No. 351-SB of 1997 12 examination was conducted on 14.02.97. In their further cross- examination, it was stated by them that at the time of occurrence five hundred people had gathered. They further stated, in their further cross- examination that on 08.05.94 i.e. the date of the alleged occurrence, they could not identify the assailants. They further stated that they neither saw the accused at the spot, nor anyone of them had fired at them. Both these witnesses were put such questions, as are put during the course of cross-examination, by the Additional Public Prosecutor, for the State, with the permission of the Court. Even during the course of such cross-examination, by the Additional Public Prosecutor, they did not support the case of the prosecution and stuck to the version, given by them, to the effect, that about five hundred people had gathered and they could not identify the assailants, as also none of the accused fired at them. Mohinder Lal, PW8, and Jagtar Lal, PW10, the other two injured, no doubt, stated that they received fire arm injuries, as also brick bat injuries, on various parts of their bodies. They further stated that they could not say, as to who had caused fire arm and brick bat injuries, on their person. They were also put such questions, as are put, during the course of cross-examination, by the Additional Public Prosecutor, with the permission of the Court, but they did not support the case of the prosecution, in any manner. In my considered opinion, the trial Court, was required to take into consideration, the statements of these witnesses, in entirety, and not by tearing the same into pieces. Once Tarsem Lal, PW4, and Rakesh Kumar, PW9, were summoned for Criminal Appeal No. 351-SB of 1997 13 further cross-examination with the permission of the Court, whatever they stated, during the course of such further cross-examination, was required to be taken into consideration, by the trial Court, to come to the conclusion, as to whether any offence, was committed by the accused, or not. The trial Court, was completely wrong, in placing reliance, on the statements of these witnesses, which were recorded, before they were recalled for further cross-examination and excluding the statements made by them, in their further cross-examination. When the statements of these witnesses, are read as a whole, only one and one conclusion, that can be arrived at, is that the accused were not the assailants nor they caused fire arm and brick bat injuries on the person of the injured. It was a gathering of about five hundred persons. As to who, out of the gathering, caused injuries, on the person of the injured, could not be identified, by them. Since the injured namely Tarsem Lal, PW4, Mohinder Lal, PW8, Rakesh Kumar, PW9, and Jagtar Lal, PW10, did not support the case of the prosecution, the trial Court, was wrong, in recording conviction and awarding sentence. 26. The medical evidence and the evidence with regard to the recovery of weapons of offence from the accused, could only be said to be corroborating pieces of evidence. The same could be of help to the prosecution had the prosecution witnesses i.e. the injured, supported its case by stating that the accused caused injuries on their person with fire arms and brick bats. Once the injured deposed that they could not identify the assailants, out of the gathering of five hundred persons, Criminal Appeal No. 351-SB of 1997 14 who caused fire arm and brick bat injuries, on their person, the medical evidence and the evidence of recovery of weapons of offence did not at all advance the case of the prosecution. No help, therefore, can be drawn from this evidence. 27. No other point, was urged, by the Counsel for the parties. 28. In view of the above discussion, it is held that the judgement of conviction, and the order of sentence, are not based, on the correct appreciation of evidence, and law, on the point. The same warrant interference, and are liable to be set-aside. 29. For the reasons recorded above, the appeal, is accepted. The judgement of conviction, and the order of sentence, rendered by the trial Court, are set-aside. The appellants shall stand acquitted of the charge, framed against them. In case, the appellants are on bail, they shall stand discharged of their bail bonds. If they are in custody, they shall be set at liberty, at once, if not required, in any other case. 30. The Chief Judicial Magistrate, is directed to comply with the judgement promptly, in accordance with law. 15.05.2009 (SHAM SUNDER) Amodh JUDGE