Harwinder Singh vs State of Punjab

Satish Kumar Mittal, J.—Complainant Harwinder Singh has filed the instant appeal against the judgment dated 27.9.2013 passed by the court of Additional Sessions Judge, Mansa, whereby accused Mithu Singh and Gurtej Singh (respondents No. 2 and 3 herein) have been acquitted of the charge u/s 307 IPC.

The case of the prosecution, which is based upon the statement of appellant Harwinder Singh, is that on 5.12.2009 at about 9 AM, when complainant-appellant Harwinder Singh (PW. 1) and his brother Jaswinder Singh (PW. 2) were irrigating their field, Sukhpal Kaur wife of accused-respondent No. 2 Mithu Singh and Jaspal Kaur wife of accused-respondent No. 3 Gurtej Singh diverted the water of water course, resulting into stoppage of supply of water to the field of the complainant. On making enquiry by the complainant in this regard, they started abusing. In the meantime, Jaswant Singh (uncle of the complainant) also reached at the spot. He also advised Sukhpal Kaur and Jaspal Kaur, but they did not stop from abusing. Sukhpal Kaur raised lalkara. Thereupon, Mithu Singh (accused-respondent No. 2) armed with.12 bore rifle and his brother Gurtej Singh (accused-respondent No. 3) armed with.315 bore rifle came there. Mithu Singh fired a shot from his rifle with intention to kill the complainant side, but they ran away and took shelter behind heap of narma. While they were running, Gurtej Singh also fired shot with intention to kill them. They raised alarm, which attracted number of persons from the village. Then both the accused along with their wives left the spot while threatening the complainant party with dire consequences. The cause of grudge, as stated by the complainant, was that both the accused were intending to take forcible possession of the land of the complainant.

The statement of the complainant was recorded by ASI Rajinder Singh (PW. 8), on the basis of which the formal FIR was recorded. Spot inspection was conducted and the accused were arrested. The weapons of offence along with live cartridges were recovered from them, which were taken into possession. One empty cartridge from each accused was also recovered. Accused Mithu Singh also produced licence of his rifle, which were also taken into possession. During investigation, Sukhpal Kaur and Jaspal Kaur were found innocent.

After completing investigation, challan was filed and charge u/s 307 IPC was framed against both the accused, to which they did not plead guilty and claimed trial.

In support of its case, the prosecution examined eight witnesses.

PW. 1 Harwinder Singh (complainant) and PW. 2 Jaswinder Singh (eye witness) are the material witnesses. They have supported the prosecution case. PW. 6 ASI Avtar Singh is witness to the recovery of the weapons of offence from both the accused; and PW. 8 ASI Rajinder Singh is the Investigating Officer of the case. PW. 3 ASI Nahar Singh, PW. 4 HC Balwinder Singh, PW. 5 Gurmit Singh and PW. 7 Gurmail Singh are the formal witnesses.

In their statements recorded u/s 313 Cr.P.C., both the accused denied the incriminating evidence appearing against them in the prosecution evidence. They pleaded innocence and their false implication in the case. In defence, they examined DW. 1 Prem Sagar, and tendered into evidence copy of calendar Ex. D2, attested copy of rapat No. 20 dated 13.10.2008 Ex. D3, order dated 31.3.2010 Ex. D4 and Khasra Girdawari Ex. D5.

After hearing learned Additional Public Prosecutor for the State and learned counsel for the accused, the trial court acquitted the accused-respondents No. 2 and 3 on the following grounds:

(i) That story of the prosecution regarding firing 4/5 shots by each of the accused does not inspire confidence, as no empty cartridge was recovered from the spot.

(ii) That the statement of PW. 6 ASI Avtar Singh, witness to the recovery of the weapons of offence from the accused persons, is contradictory to the recovery memos as well as to the statement of PW. 8 ASI Rajinder Singh, the Investigating Officer of the case.

(iii) That the Investigating Officer of the case did not conduct proper and complete investigation, as in spite of the fact that rapat No. 21 dated 6.12.2009 (Ex. D1) was recorded on the basis of statement of accused Mithu Singh, enquiry was not conducted in his presence.

(iv) That the prosecution version regarding motive of assaulting the complainant in order to take forcible possession of the land is not probable one.

Against the aforesaid judgment of acquittal, the instant appeal has been filed by the complainant.

Learned counsel for the appellant argued that in the present case, the prosecution has led sufficient evidence establishing the guilt of the accused beyond reasonable doubt. However, the trial court, without properly appreciating the prosecution evidence, acquitted both the accused of the charge framed against them u/s 307 IPC. Learned counsel argued that PW. 1 Harwinder Singh and PW. 2 Jaswinder Singh, upon whom shots were fired by the accused from their respective rifles, have categorically stated that both the accused had fired shots upon them, but they escaped. It has been stated by them that both the accused had fired shots towards them with intention to kill them, as they wanted to take forcible possession of the land. Learned counsel further argued that even if it is taken that charge u/s 307 IPC has not been established against the accused, then at least it has been established that both the accused had attempted to commit the aforesaid offence and are liable to be punished u/s 511 IPC. Thus, the judgment of acquittal passed by the trial court is liable to be set aside and both the accused are liable to be convicted u/s 307 IPC or in alternative u/s 511 IPC.

We have considered the submissions made by learned counsel for the appellant and have gone through the impugned judgment.

As per the prosecution version, the alleged occurrence had taken place on 5.12.2009 at about 9 AM in the fields, when in the presence of complainant Harwinder Singh and his brother Jaswinder Singh, Sukhpal Kaur and Jaspal Kaur wives of both the accused diverted the water course resulting into stoppage of supply of water to the field of the complainant. When the complainant protested, both the ladies started abusing him. Then Jaswant Singh, uncle of the complainant, also came on the spot. He tried to advise both the ladies not to abuse, but they did not stop. As per the prosecution version, at that time, both the accused came on the spot with their respective rifles. On being exhorted by both the above named ladies, accused Mithu Singh and Gurtej Singh fired shots from their rifles towards the complainant side with intention to kill them. The complainant, his brother Jaswinder Singh and uncle Jaswant Singh saved themselves and on raising alarm by them, when many persons came at the spot, both the accused along with their wives left the place of occurrence.

In this case, during police investigation, both the ladies, namely Sukhpal Kaur and Jaspal Kaur, were found innocent and they were not challaned. During trial, an application u/s 319 Cr.P.C., was moved by the prosecution to summon both these ladies, but the same was dismissed by the trial court and the said order was not challenged by the prosecution, meaning thereby that it has been accepted by the prosecution that both these ladies are innocent and they were not involved in the occurrence. In the present case, the genesis of the occurrence was diverting of water course and hurling of abuses by these two ladies. If during investigation, involvement of these two ladies in the crime was not accepted and they were found innocent, the very genesis of the occurrence has not been established.

Secondly, undisputedly, neither the complainant nor his brother Jaswinder Singh or uncle Jaswant Singh received any gun shot injury. It is only alleged that both the accused fired shots from their respective rifles, but the complainant side ran away and took shelter behind heap of narma. It has been alleged that 4/5 shots were fired by each of the accused, but no empty cartridge was recovered from the spot. This creates doubt in the prosecution version. It appears that no shot was fired at that time.

Thirdly, when the statement of ASI Avtar Singh (PW. 6), the alleged eye witness, is contradictory, as has been held by the trial court, the recovery of rifles and cartridges from both the accused is also doubtful.

In view of the above, we are of the opinion that the trial court has rightly appreciated the evidence led by the prosecution and then came to the conclusion that the prosecution has failed to prove its case against the accused beyond any reasonable shadow of doubt. In our view, in the light of the evidence led by the prosecution in this case, the aforesaid view is the only possible view. Therefore, the impugned judgment of acquittal passed by the trial court does not require any interference.

Consequently, this appeal is dismissed, summarily.