Punjab-Haryana High Court
State Of Punjab vs Sher Singh And Others on 15 September, 2008
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.415-DBA of 1997 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.415-DBA of 1997
Date of decision: September 15, 2008
State of Punjab
......Appellant
Versus
Sher Singh and others
.......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Rakesh Bhardwaj, DAG, Punjab
Mr.H.S.Baidwan, Advocate,
for the respondents.
Mr.G.S.Sidhu, Advocate,
for the complainant.
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JUDGMENT
SABINA, J.
This appeal is directed against the judgment dated 15.6.1995 passed by learned Additional Sessions Judge, Ludhiana vide which respondents were acquitted of the charge framed against them.
Prosecution case was set in motion on the basis of the statement made by complainant Teja Singh. On 28.3.1992, Criminal Appeal No.415-DBA of 1997 2 complainant had left on Hero Honda motor cycle along with his son Amar Pal Singh after harvesting mustard crop. They met Hardev Singh in the fields and started walking on foot towards their village Assi Kalan, whereas, Amar Pal Singh left on the motor cycle. At about 10.30 a.m. when his son had reached a short distance from them, Jarnail Singh armed with .315 bore rifle, Sher Singh armed with dat, Gurcharan Singh armed with pistol and Kulwant Singh armed with gandasi came there and encircled Amar Pal Singh. All the said persons raised lalkaras that Amar Pal Singh be not let alive and he was shot at with the help of fire arm. Amar Pal Singh died as a result of injuries suffered by him.
On the basis of statement of the complainant formal FIR No.114 dated 28.3.1992 was recorded by the Police of Police Station Sadar Ludhiana.
ASI Raghbir Singh visited the spot and prepared rough site plan. He took in possession blood stained earth from the spot and lifted two empty cartridges of .315 bore rifle from there. He also took in possession Hero Honda motor cycle bearing No.PB-10D- 8840 from the spot. He prepared the inquest report with regard to dead body of Amar Pal Singh and sent the same for postmortem examination.
Dr.Kulwant Singh conducted the postmortem examination on the dead body of Amar Pal Singh on 28.3.1992 at 5.30 p.m. and found the following injuries on his person:- Criminal Appeal No.415-DBA of 1997 3
"1. Lacerated wound 1 ½ cm diameter on the midline of back at the level of lumber No.2 vertebrae with inverted margins and clotted blood. Corresponding hole was present in the banian, shirt and sweater.
2. Lacerated wound 1 ½ cm diameter on the back of left infrascapular region about 6" away from mid line, with inverted margins corresponding holes were present in the shirt, banian and sweater.
3. Lacerated wound 6" x 4" cm on the middle extending towards right side of front of neck with everted margins corresponding cut was present in the shirt and sweater only.
In his opinion the cause of death was due to shock and haemorrhage as a result of fire arm multiple injuries which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature. Injury Nos.2 and 3 were result of one shot as injury No.2 is the entry wound, whereas, injury No.3 was the exit wound. Injury No.1 was a result of separate shot. The shorts were fired from a distance of beyond 3 feet.
On 16.4.1992 accused Sher Singh, Kulwant Singh and Gurcharan Singh were arrested, whereas, accused Jarnail Singh could not be apprehended and was declared a proclaimed offender. On the basis of disclosure statement suffered by accused Kulwant Singh on 28.4.1992 during interrogation, he got recovered a gandasi Criminal Appeal No.415-DBA of 1997 4 from the disclosed place and it was taken in possession. On the same day accused Sher Singh, on the basis of his disclosure statement during interrogation, got recovered a datar, which was taken in possession.
After completion of investigation and necessary formalities accused Sher Singh, Kulwant Singh and Gurcharan Singh were sent up for trial. Charge against them was framed under Section 302 read with Section 34 IPC on 27.10.1992. They did not plead guilty to the charge and claimed trial. Prosecution in order to prove its case during trial examined as many as eight witnesses.
Accused when examined under Section 313 Cr.P.C., after close of prosecution evidence, prayed that they were innocent and had been falsely involved in this case. Accused Sher Singh further pleaded as under:-
" I am innocent. Hardev Singh PW is partyman of Teja Singh. Teja Singh was adopted by Ishar Singh. Teja Singh got all the land of his adopting father Ishar Singh. He was also trying to grab our land. Litigation ensued between me and Teja Singh due to this fact. I filed civil suit against him which was decreed in my favour. My mother's brother Labh Singh migrated to England in 1963. He was unmarried. He died in the year 1976. He left behind 60,000/- , 70,000/- pounds in the Bank to his credit. The wife of Teja Singh, namely Mohinder Kaur, Criminal Appeal No.415-DBA of 1997 5 claimed that amount and other property by claiming herself to be the widow of Labh Singh. Gurmel Singh used to cultivate the land of one Punna. Hardev Singh etc. wanted to take forcible possession of that land. They had caused injuries to Gurmel Singh. Gurmel Singh was my partyman. I along with Gurmel Singh and his sons Bachhittar Singh, Bachan, Ratten and Kuldip Singh tried together for murder of Bachittar Singh. We were, however, acquitted. Hardev Singh is partyman of Teja Singh. Hardev Singh was examined as a witness in the civil case against us. That is why he has deposed falsely against us in this case. My son Jarnail Singh had enmity with Balaur Singh s/o Amar Singh and Harchand Singh is father of Hardev Singh PW. They have got this false case registered against us. We came to know at about sun rise on 28.3.1992 that Amar Pal Singh has been murdered on the previous night. I was arrested by the police on 30.3.1992."
Accused Gurcharan Singh further pleaded that he had been falsely involved in this case due to his relationship with Sher Singh accused. He was arrested by the police on 30.3.1992. Accused Kulwant Singh further pleaded that on the day of occurrence he had attended the Court at Ludhiana and had been falsely involved in this case due to his relationship with Sher Singh Criminal Appeal No.415-DBA of 1997 6 accused. He was arrested by the police on 30.3.1992.
Learned trial Judge did not believe the prosecution version and acquitted the accused of the charge framed against them by giving them benefit of doubt. Hence, the State has filed the present appeal.
Learned State counsel has submitted that the eye witnesses had categorically deposed that all the accused had come to the spot armed with deadly weapons and had committed the murder of Amar Pal Singh. Their statements were liable to be believed.
Learned counsel for the respondents, on the other hand, has supported the judgment of acquittal passed in favour of the respondents.
During the course of arguments, it was brought to our notice by the learned State counsel that respondent Sher Singh son of Rattan Singh has since died on 27.3.1996. A photocopy of the death certificate is available on record.
After hearing learned State counsel as well learned counsel for the respondents, we are of the opinion that the verdict of acquittal given in favour of the respondents calls for no interference. So far as the medical evidence is concerned, the doctor, who had conducted the postmortem examination on the dead body of the deceased, in his cross-examination deposed that keeping in view the diameters of injuries No. 1 and 2, it was evident that both the injuries Criminal Appeal No.415-DBA of 1997 7 could have been caused by one and the same weapon by different shots. The Investigating Officer had collected two empty cartridges of .315 bore rifle from the spot. As per the ocular version none of the respondents before us was carrying .315 bore rifle. Al though Teja Singh (PW-2), when he appeared in the witness box, deposed that Jarnail Singh and Charan Singh had fired shots with their respective weapons but he had not deposed specifically in this regard when his statement was recorded by the police. Hardev Singh (PW-3) has also not deposed as to which assailant had fired shots. No empty cartridge of pistol was recovered from the spot nor any pistol was recovered from Gurcharan Singh during investigation of this case. There is no injury on the person of the deceased with a gandasi or datar. Keeping in view the above mentioned facts, the presence of the respondents at the spot is doubtful.
So far as accused Kulwant Singh is concerned, he examined Satwant Singh Grewal, Advocate (DW-3) and Darshan Singh, Reader of the Court (DW-4) to establish his plea of alibi. As per DW-3, Kulwant Singh had attended the Court proceedings on 28.3.1992 in connection with a case under Sections 447/506 IPC and under Section 25 of the Arms Act in the Court of Judicial Magistrate (Ist Class), Ludhiana at about 10.30/11.00 a.m. DW-4, Darshan Singh Reader attached to the said Court, has deposed that in normal routine the cases fixed for appearances were called for hearing before 11.00 a.m. On 28.3.1992, the case titled State v. Sher Singh Criminal Appeal No.415-DBA of 1997 8 etc. in FIR No.352/91 under Sections 447/506/427 IPC and under Section 25 of the Arms Act, Police Station Sadar Ludhiana was listed for hearing. The date was fixed for appearance of Kulwant Singh accused. Both the said witnesses had no reason to depose falsely and their statements are liable to be believed. Thus, accused Kulwant Singh had been successful in establishing on record that he could not be present at the spot on the alleged day of occurrence.
Reading of the evidence on record indicates that the possibility of respondents having not been present at the spot cannot be ruled out. It has been brought to our notice during the course of arguments of this appeal that accused Jarnail Singh, who was declared a proclaimed offender at the trial, had later surrendered before the trial Court in the year 2004 and his trial was in progress. So far as the respondents before us are concerned, their presence at the spot is doubtful. Although, learned trial Judge has held that the eye witnesses were not present at the spot but we refrain from making any observation in this regard lest it may prejudice the case of the prosecution with regard to the trial of Jarnail Singh, which is pending before the trial Court.
Learned trial Judge had rightly acquitted the respondents as their presence at the spot was doubtful. Hence, the view taken by the learned trial Judge in acquitting the respondents was possible. Even in cases where two views are possible, after acquittal, in appeal benefit will go to the accused.
Criminal Appeal No.415-DBA of 1997 9
Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh 2001 (1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis- reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
In view of above, no case for interference is made out. Dismissed.
(SABINA) JUDGE (JASBIR SINGH) JUDGE September 15, 2008 anita