Kulvinder Kaur and Others vs State of Uttaranchal

Umesh Chandra Dhyani, J—Since the above mentioned Criminal Appeals arise out of the same judgment and order, therefore, both of them are being decided together for the sake of brevity and convenience.

PW 1 Smt. Sheetal Kaur set the criminal law into motion by writing a complaint (Ext. Ka-2) to the SHO of PS Jaspur, on 20.03.2002, enumerating the facts contained therein that on the selfsame date, at 4:00 P.M. when the informant along with her son Kashmir was going to her brother''s house, who was living in the same village, and reached in front of the house of Ajmer Singh, Ajmer Singh''s wife Kulvinder Kaur came running on the spot and exhorted Srawan Singh to kill her (Sheetal Kaur) and her son (Kashmir Singh). A dispute of land was going on between Sheetal Kaur (informant) and Ajmer Singh. Srawan Singh s/o. Pyara Singh fired upon the son of the informant with a country made pistol. The fire struck the chest of the son of the informant. Kashmir Singh fell on the ground. Passersby Swarn Singh s/o. Rana Singh and Avtar Singh tried to catch hold of the assailants, but they ran away. Swarn Singh and Avtar Singh took the injured to the Government Hospital on a scooter.

Chik FIR was lodged on the selfsame date, i.e., 20.03.2002, at 5:20 p.m., at Jaspur. The distance between the place of occurrence and the police station was four kilometers. Hence, there appears to be no delay in lodging the first information report, which was filed under Sections 307/506 of IPC. After investigation of the case, a charge-sheet was submitted against the accused persons, namely, Sarwan Singh and Smt. Kulvinder Kaur (appellants), for the offences punishable under Section 307/506/34 of IPC. The case was committed to the Court of Sessions. Charges under Section 307 read with Section 34 of IPC and Section 506 of IPC were framed against accused persons, to which they pleaded not guilty and claimed trial. PW 1 Avtar Singh, PW 2 Balbeer Singh, PW 3 Smt. Sheetal Kaur (informant), PW 4 Kashmir Singh (injured), PW 5 Dr. Chandra Prakash Tripathi, PW 6 Constable Jagdish Prasad, PW 7 SI Rajeev Sirohi (investigating officer), were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons in the statement under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case.

After considering the evidence on record, accused-appellant Sarwan Singh @ Srawan Singh was convicted of the offence punishable under Section 307 IPC and was sentenced to undergo rigorous imprisonment for five years along with fine of Rs. 5000/-, in default of payment of which, he was directed to undergo two years further imprisonment. Accused-appellant Sarwan Singh @ Srawan Singh was also sentenced for the offence punishable under Section 506 of IPC and was directed to undergo one year''s rigorous imprisonment. Accused-appellant Kulvinder Kaur was convicted of the offence punishable under Section 307 IPC read with Section 34 of IPC and was sentenced to undergo rigorous imprisonment for two years along with fine of Rs. 500/-, in default of payment of which, she was directed to undergo two months'' further imprisonment, vide impugned judgment and order dated 23.08.2003. Aggrieved against the said judgment and order, present Criminal Appeals were preferred by the appellants.

PW 1 did not support the prosecution story and was, therefore, declared hostile. He stated that on the given date Smt. Kulvinder Kaur did not exhort Sarwan Singh @ Srawan Singh to kill Kashmir Singh. Sarwan Singh @ Srawan Singh also did not fire upon Kashmir Singh in his presence.

PW 2 denied that blood stained clothes were taken by the investigating officer in his presence. He, however, affirmed that recovery memo (Ext. Ka-1) contained his signatures. PW 2 was also declared hostile.

PW 3 (informant) not only affirmed the contents of her complaint (Ext. Ka-2), but also supported the prosecution story. In her examination-in-chief, she stated that the accused persons, namely, Sarwan Singh @ Srawan Singh and Smt. Kulvinder Kaur were her co-villagers. There was a dispute between Gurdayal Singh, her brother and accused-persons over a piece of land. The incident took place (about ten months ago from the date of her deposition), at 4:00 p.m., when she, along with her son Kashmir Singh, were going to house of her brother and they reached near Ajmer Singh''s house, Kulvinder Kaur exhorted the accused Sarwan Singh @ Srawan Singh to kill PW 3 and her son. Sarwan Singh @ Srawan Singh fired upon Kashmir Singh with a country-made pistol, which hit his chest, neck and face. Kashmir Singh fell down on the ground. Passersby Sohan Singh and Avtar Singh took the injured to hospital on a scooter. Complaint (Ext. Ka-2) was typed by a typist at PS Jaspur, which she (PW 3) dictated. PW 3 stated that she put her signature on Ext. Ka-2.

In her cross-examination, PW 3 stated, among other things, that the dispute over a piece of land was going on between Ajmer Singh and Gurdayal Singh. The place where the incident took place was a thoroughfare. Accused-appellant Sarwan Singh @ Srawan Singh fired on Kashmir Singh from his house. Sohan Singh and Avtar Singh came and took the injured to the Jaspur Hospital on a scooter. She admitted that a quarrel between her son, her daughter & her brother (Gurdayal Singh) on the one hand, and Nirmal Singh & Satnam Singh, on the other hand, over a piece of land, took place one day before this incident. A criminal case for the offence punishable under Section 307 and 506 of IPC was registered against her brother Gurdayal Singh and her son Kulwant Singh.

PW 4 (injured) is the son of PW 3. In examination-in-chief, he supported the prosecution story and also stated that on the fateful day, Sarwan Singh @ Srawan Singh fired upon him, as a consequence of which, he sustained injuries on his chest, neck and face. PW 4 also stated that his blood stained clothes were taken by the Investigating Officer. In his cross-examination, PW 4 stated that the place of incident was a thoroughfare. Sarwan Singh @ Srawan Singh fired upon him from a distance of 8-10 paces. The pallets struck his body. He was taken to hospital on a scooter. He also admitted that a quarrel between his brother, sister and maternal uncle, on the one hand and Ajmer Singh, Manjeet Singh and Srawan Singh, on the other hand, took place one day before this incident. It may be noted here that a criminal case under Section 307 of IPC against Gurdayal Singh, Kulvinder Kaur and Kulwant Singh was registered one day before this incident.

PW 5 was posted as Medical Officer at CHC, Jaspur, on 20.03.2002, i.e., the date of the incident. On that date, at about 4:00 p.m., PW 5 examined the injuries of PW 4 in the following manner:

"Gun shot wounds about 60 in number present on the left side of face below eye (upper margin) anterior portion of left & right side of chest, left side of neck. Left shoulder (anterior) Left upper arms (ant. & medial) one would present inside the mouth over muscle portion of left side of lower lip. Distribution of wounds are more over upper part of left shoulder. Bleeding present. No blackening siring, burning and tattooing present. Injuries are kept under observation & referred to Surgeon L.D. Bhatt Hospital, Kashipur, Udham Singh Nagar."

Opinion: Injuries are caused by firearm. Injury is fresh in duration. Injuries are kept under observation & referred to Surgeon, L.D. Bhatt Hospital, Kashipur."

PW 5 stated that all the injuries sustained by PW 4 were fresh and were fire arm injuries. He further stated that such firearm injuries were possible to have sustained on 20.03.2002, at 4:00 p.m. PW 5 also stated that the injuries were sustained on the vital parts of the injured. PW 5 also proved the supplementary report (Ext. Ka-3) of the injured, which was based upon the report of the Radiologist. PW 4 remained in the hospital from 20.03.2002 to 27.03.2002 at L.D. Bhatt Hospital at Kashipur. In the cross-examination, PW 5 stated, among other things, that all the injuries were simple in nature.

PW 6 proved the chik FIR (Ext. Ka-5), which was registered on the basis of Complaint (Ext. Ka-2) and copy of G.D. (Ext. Ka-6). PW 7 is the investigating officer of the case, who was handed over the investigation on 20.03.2002. Apart from other things, he visited the place of occurrence, prepared site plan and after completing the investigation submitted the charge-sheet against the accused persons.

Enmity is a double edged weapon, which cuts both ways. Whereas a person can be falsely implicated in a case on the ground of such enmity, it is also possible that a person can cause damage to another person out of such enmity. Both the possibilities cannot be ruled out. In the instant case, it is undisputed fact that a case was lodged against son, daughter and brother of the informant one day before this incident under Section 307 of IPC and therefore, there is every possibility that the accused persons might have been falsely implicated in the case or might have been involved in the alleged incident. Injury report of Kashmir Singh suggests that Kashmir Singh sustained firearm injuries and such injuries were simple in nature. PW 3 and PW 4 have supported the prosecution story. PW 5, PW 6 and PW 7 have lend assurance to such prosecution story. PW 5 has corroborated the evidence of PW 3 and PW 4. PW 3 and PW 4 were cross-examined on behalf of the accused persons, but nothing has come in their cross-examination to hold that Sravan Singh did not fire upon PW 4. Alleged exhortation by Kulvinder Kaur to exhort Sravan to fire upon Kashmir Singh is however doubtful, inasmuch as, whereas the fire arm injuries on the person of PW 4 by the appellant Sravan is proved, alleged exhortation by co-appellant Kulvinder Kaur is not. The reasons are not far to seek. Since a woman was implicated by the accused party one day prior to this incident, therefore, it appears that a woman was also implicated by the informant side to strike the balance. Further, exhortation is normally not done by a house-wife. Still further, exhortation itself is a very weak type of evidence, which may normally be used to implicate those family members, who did not actually participate in crime.

In any case, exhortation by Kulvinder Kaur has not been proved beyond a shadow of reasonable doubt, hence she should be granted benefit of doubt, but the same is not true in respect of the appellant Sarwan Singh @ Srawan Singh, who fired upon PW 4. Trial Court has appropriately discussed the evidence and has come to a reasonable finding that a case against Sarwan Singh @ Srawan Singh for the offence under Section 307 of IPC has been proved beyond a shadow of reasonable doubt. It is not necessary to repeat the reasons, which have been assigned by the court below in coming to a conclusion that the accused Sarwan Singh @ Srawan Singh has committed the offence punishable under Section 307 of IPC. This Court is unable to take a view different from what has been taken by the trial court in respect of co-accused Sarwan Singh @ Srawan Singh. His (Sarwan Singh @ Srawan Singh) conviction under Sections 307 and 506 of IPC, therefore, deserves to be affirmed.

Prosecution could not prove the case against the accused-appellant Smt. Kulvinder Kaur beyond reasonable doubt. The convict Smt. Kulvinder Kaur is entitled to get benefit of doubt. As a consequence thereof, the appeal filed on her behalf deserves to be allowed. Appeal preferred on behalf of the appellant Smt. Kulvinder Kaur is therefore allowed. The judgment and order dated 23.08.2003 passed by learned trial court in respect of the aforesaid appellant (Smt. Kulvinder Kaur) is accordingly set aside. The conviction recorded in respect thereof and sentence thus awarded to her is also set aside. Appellant Smt. Kulvinder Kaur is on bail. Her bail bonds are cancelled and sureties are discharged. She need not surrender.

This Court is of the opinion that no interference is called for in the judgment and order dated 23.08.2003 in so far as the conviction of the appellant Sarvan Singh @ Sravan Singh for the offences punishable under Section 307 and 506 of IPC is concerned.

Learned counsel for the appellants has conceded that the case against the appellant Sarwan Singh @ Srawan Singh was proved beyond a shadow of doubt and, therefore, the judgment and order dated 23.08.2003 requires no interference in respect of the appellant Sarwan Singh @ Srawan Singh. He, however, prays that considering the nature of the injuries, the appellant''s (Sarwan Singh @ Srawan Singh) sentence be reduced to the period already undergone by him. Learned counsel for the appellants informs the Court that the appellant Sarvan Singh @ Sravan Singh remained in judicial custody from 22.03.2002 to 15.10.2003.

Considering the facts of the case and the nature of the injuries sustained by the injured, this Court is of the view that the appellant Sarwan Singh @ Srawan Singh should be sentenced for the period ''already undergone'' by him, while maintaining his conviction.

Criminal appeal preferred by the appellant Sarwan Singh @ Srawan Singh is, therefore, allowed in part. The conviction awarded to the appellant Sarwan Singh @ Srawan Singh under Section 307 IPC and Section 506 of IPC is affirmed. The sentence awarded to him is, however, modified to the extent that he (Sarwan Singh @ Srawan Singh) shall undergo rigorous imprisonment for the period already undergone. The appellant Sarwan Singh @ Srawan Singh shall, however, pay fine, which was awarded to him by the Court below. Learned counsel for the appellant (Sarwan Singh @ Srawan Singh) undertakes that the fine shall be deposited within four weeks from today, failing which the appellant (Sarwan Singh @ Srawan Singh) shall undergo six months'' further rigorous imprisonment.

With the directions as above, the Criminal Appeals are finally disposed of with the modification in the sentence of appellant Sarwan Singh @ Srawan Singh as above. Let the Lower Court Record be transmitted back for ensuring compliance.