Malkiat Singh and Others vs State of Punjab

Paramjeet Singh, J.

Challenge in this appeal is to the judgment of conviction and order of sentence dated 10.11.2001 passed by learned Additional Sessions Judge, Ludhiana, whereby appellant No. 1 - Malkiat Singh has been sentenced to undergo rigorous imprisonment for three years under Section 307 of the Indian Penal Code and to pay fine of Rs. 1000/- and in default to further undergo rigorous imprisonment for six months. Appellant No. 2 - Mohinder Singh has been sentenced to undergo rigorous imprisonment for three years under Section 307/34 of the Indian Penal Code and fine of Rs. 1000/- and in default to further undergo rigorous imprisonment for six months in a case arising out of FIR No. 35 dated 01.03.1996 registered under Sections 307/34 IPC and Section 25/27 of the Arms Act at Police Station Sahnewal.

The factual matrix on which the prosecution version is founded is to the effect that on 01.03.1996 ASI Ranjit Singh along with other police officials was present at Chowk Jandali in connection with patrol duty, where Harjit Singh Sarpanch met him and gave his statement (Ex. PB) on which endorsement (Ex. PB/1) was made on the basis of which formal FIR (Ex. PB/2) was registered. Thereafter investigating officer went to the spot and took into possession six pallets, which came out of cartridge, from the spot and prepared their parcel and sealed the same with his seal bearing initials ''RS'' and took into possession vide recovery memo (Ex. PC). Rough site plan (Ex. PE) of the place of occurrence was also prepared. Thereafter investigation was carried out by ASI Naginder Singh, who arrested convict Malkiat Singh on 03.03.1996 and recovered one pistol.12 bore, one empty cartridge and five live cartridges of.12 bore in pursuance of statement under Section 27 of the Evidence Act. Same were taken into possession and a separate case under Section 25 of the Arms Act was registered against convict Malkiat Singh. Convict Mohinder Singh was arrested on 05.03.1996 and a.315 bore pistol along with six live cartridges was recovered from his possession in pursuance of statement under Section 27 of the Evidence Act and a separate case under Section 25 of the Arms Act was registered against him. Investigating Officer recorded the statements of witnesses during the investigation of the case and after the completion of investigation, challan was presented in the Court of learned Illaqa Magistrate, who committed the case for trial to Learned Additional District Judge vide order dated 19.07.1996. Charges under Sections 307/34 IPC were framed against the convict-appellants to which they pleaded not guilty and claimed trial.

To prove its case, prosecution examined PW-1 HC Major Singh, PW-2 Harjit Singh, PW-3 Charanjit Singh, PW-4 Kuldip Singh, PW-5 ASI Ranjit Singh, PW-6 Dalbir Singh, PW-7 DSP Naginder Singh. Despite sufficient opportunities, prosecution failed to conclude its evidence and evidence of the prosecution was closed by order vide order dated 24.04.2001.

Statement of the convict-appellants was recorded under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances appearing against them in prosecution evidence and claimed to be innocent. In defence, convicts examined DW-1 Karan Jaspal Singh, DW-2 Jodh Singh and thereafter closed their evidence.

The trial Court after conclusion of trial convicted and sentenced the appellants as aforesaid. Hence, this appeal.

It is expedient to have a bird''s eye view of the relevant prosecution witnesses hereunder: -

"(i) Complainant Harjit Singh, Sarpanch PW-2 in his examination-in-chief has stated that on 29.02.1996 he was the Sarpanch of village Mellon. On 29.02.1996 at about 11.00 p.m. Dalbir Singh, Nachhattar Singh and Charanjit Singh came to him and told that in spite of stay, Malkiat Singh and Mohinder Singh are making preparations for raising a wall on the way leading to their house. He along with Dalbir Singh etc. went to the spot. Electric light was on in front of the house of Nachhatar Singh. Malkiat Singh and Mohinder Singh armed with pistol were standing on the roof of their house. On seeing him, Mohinder Singh raised lalkara that they should be killed. In order to kill, Malkiat Singh fired from his pistol at him. The fire could not hit him as after striking the trigger, the fire remained in the pistol itself. On raising ''raula'', appellants ran away with their respective weapons. From the place of occurrence, 6 pallets of 12 bore pistol were recovered. Harjit Singh did not turn up for cross-examination.

(ii) Charanjit Singh PW-3 deposed that he along with Dalbir Singh and Nachhattar Singh went to Harjit Singh Sarpanch to complain to him about the raising of wall in the street, which would lead to their house, by appellants. When they went to spot, electric lights were on outside the house of Nachhattar Singh and appellants armed with pistol were standing on the roof of their house. Mohinder Singh escorted his father Malkiat Singh that today is the time that Harjit Singh should be killed and in order to kill Harjit Singh, Malkiat Singh fired at him. The fire could not hit Harjit Singh as after pulling the trigger, fire remained in the pistol itself. After raising ''raula'' appellants ran away along with their respective weapon from the spot. In his cross-examination Charanjit Singh has stated that they came to know about the raising of wall by appellants at about 11.00 p.m. They along with Sarpanch Harjit Singh went at the spot. Appellants fired with their pistol from a distance of 20 feet. After firing appellants ran away from the spot. Harjit Singh went to the police station and ASI Ranjit Singh came to the spot at about 2.30 p.m., who remained at the spot for about 2 1/2/3 hours. The appellants removed the bricks and other building material before arrival of ASI Ranjit Singh. When ASI Ranjit Singh came there was no building material lying in the street. He further stated that Dalbir Singh had filed a civil suit for partition of house against Karnail Singh father of Malkiat Singh. Karnail Singh father of Malkiat Singh had filed a suit for partition against him, Dalbir Singh, Nachhattar Singh and Nirmal Singh.

(iii) ASI Ranjit Singh PW-5 deposed that in pursuance of the statement of Harjit Singh made to him at about 1.30 p.m., he visited the spot at about 2.30 p.m. along with PW Harjit Singh and prepared rough site plan. From the place of occurrence, 6 pallets of.12 bore were recovered, same were taken into possession and were put in a voil and were sealed with his seal bearing impression ''RS'' and were taken into possession vide recovery memo Ex. PC attested by Harjit Singh, Dalbir Singh, Bachitter Singh and Charanjit Singh. He recorded statements of witnesses under Section 161 Cr.P.C. He has deposed that investigation of the case was taken from him on that very day by SI Naginder Singh, SHO. He was joined in the investigation on 03.03.1996. During interrogation Malkiat Singh disclosed that he had kept concealed one.12 bore pistol country made and one empty cartridge of.12 bore and 5 live cartridges after wrapping in a wax paper and putting the same in an envelop and kept concealed near a safeda tree opposite the tubewell in the area of village Melo. Thereafter appellant got recovered on 12 bore country made pistol, one empty and five live cartridges. Same were taken in possession vide recovery memo Ex. PH. After arrest on 05.03.1996, Mohinder Singh, in pursuance of his disclosure statement during interrogation, got recovered country made.315 bore pistol and six live cartridges. In his cross-examination ASI Harjit Singh deposed that slips were pasted by writing the particulars of the case at the spot on the pistol and cartridges. He again said that chits were not pasted on the cartridges. At present there is no chit on the cartridges to show that these pertain to this case. His signatures and that of the witnesses were not obtained on the chits. There is no chit at present on the pistols. The cartridges can be purchased on a licence from the arms dealer. He further deposed that he had not seen any building material when he visited the place of occurrence. He had not seen any handpump and a small water tank in front of the house of appellants meant for watering the cattle.

(iv) Dalbir Singh PW-6 deposed that on the day of occurrence, at about 10.45 p.m. he was present in his house. House of the appellants adjoins his house and appellants were present at the roof of their house and were raising hue and cry. He along with Nachhattar Singh and Charanjit Singh went to the house of Harjit Singh and narrated entire story. There was electric light at the house of Nachhattar Singh. Mohinder Singh raised lalkara that Sarpanch has come and Malkiat Singh in order to kill fired a shot towards them. But the fire missed. After raising hue and cry the appellants ran away with their respective weapons. The matter was reported to the police. ASI Ranjit Singh came to the spot and collected pallets from the spot which were sealed and taken into possession. In his cross-examination Dalbir Singh has stated that disputed land is within the lal lakir of the village and is in front of the house of appellants. On his application, Kanungo and Patwari had went to village to demarcate the land. They made report to the Tehsildar that there was no ''pahi'' in front of the house of Malkiat Singh as per revenue record. Further stated that Malkiat Singh had filed a civil suit against him, Harjit Singh Sarpanch and Nachhattar Singh in which they appeared as witnesses. In the civil suit status quo was ordered to be maintained. For that reason pucca street could not be constructed in the disputed land. There is no hand pump installed by Malkiat Singh in the disputed land. Appellants had not made any attempt to construct a wall in the disputed land. Further stated that he had not seen any material i.e. bricks, cement or labour etc. at the spot.

(v) DSP Naginder Singh Rana PW-7 deposed that he verified the investigation conducted by ASI Ranjit Singh on the same day. He arrested Malkiat Singh. In pursuance of disclosure statement by Malkiat Singh during investigation, one pistol.12 bore country made and five live cartridges and one spent cartridge of the same bore were recovered. Mohinder Singh was arrested on 05.03.1996. In pursuance of his disclosure statement during investigation, one.315 bore pistol and six live cartridges of same bore were recovered and same were taken into possession. Chits were pasted on the pistol and the cartridges but now there is no chit on the pistol and cartridges to connect the same with the present case."

I have heard learned counsel for the parties and perused the record.

Learned counsel for the appellants vehemently contended that statement of PW-2 Harjit Singh complainant cannot be read into evidence as he appeared only in examination-in-chief and did not come for cross-examination. Statement of complainant cannot be read into evidence unless it is subjected to cross-examination. Otherwise it has no sanctity in the eyes of law. Trial Court has wrongly relied upon the statement of Harjit Singh and has taken it as a corroborative evidence. Even the documents exhibited in the statement of Harjit Singh cannot be taken into consideration. Learned counsel for the appellants further contended that dispute between the parties allegedly arose on account of the fact that convicts had collected material for raising a wall. Labourers were called, however, work was not started. The complainant came to know about the raising of wall by appellants-convicts. At about 11.00 p.m. complainant party went to the spot and appellants fired on them from a distance of about 20 feet. It is the case of Charanjit Singh PW-3 that before arrival of ASI Ranjit Singh bricks and other building material had been removed by the convicts. In fact, Dalbir Singh PW-6 had filed a suit for partition against the father of Malkiat Singh. Charanjit Singh PW-3 had appeared as witness in that case. For that reason he has made the wrong statement. It is admitted that passage 3 karams in width and 22 karms in length leads from ''firni'' upto the house of convicts. Status quo has been granted by the civil Court with regard to existence of passage and convicts have also installed hand-pump after leaving the area of passage from the other side of the house. Learned counsel for the appellants contended that proceedings under Sections 107/151 IPC were already pending between the parties. Learned counsel for the appellants contended that in the FIR it is mentioned that fire missed (thus) and question of coming pallets out of the same does not arise, in fact, no occurrence has taken place. There is a categoric statement in the Court that pallets were taken into possession from the spot and this fact has not come in FIR. The person at whose instance FIR was registered has not come for cross-examination, as such his statement cannot be treated as a corroborative statement although he was the best person to tell the entire story. Learned counsel further contended that FIR has been registered on false grounds. It is a case of no injury. There are material contradictions in the statements of witnesses. Investigation is tainted. Test firing was not done to make it clear that weapon is workable. During the pendency of the proceedings, the parties, which are next door neighbours, have compromised the matter vide compromise deed dated 14.01.2015. The affidavit to that effect has also been placed on record.

On the other hand, learned counsel for the State has vehemently contended that case stands fully proved. The statement in Court of Harjit Singh is valid one and can be taken into consideration. Learned counsel for the State has supported the judgment of trial Court and submitted that present appeal deserves to be dismissed.

I have considered the contentions raised by learned counsel for the parties.

ASI Ranjit Singh in his cross-examination has stated that when he visited the spot there was no building material lying at the spot. It is also admitted that fire missed (thus), so question of pallets lying at the spot does not arise. When the fire is stated to be missed then question of seeing the pallets at the spot alleged to have come from the barrel does not arise. Missed (thus) means that fire did not blast to the full strength and in that eventuality the pallets would not come out. There cannot be any noise unless there is full blast. Otherwise also, story of prosecution does not stand corroborated as Harjit Singh has not turned up for his cross-examination, therefore, his statement cannot be taken into consideration. The story put forward by the complainant apparently appears to be unnatural. When the case of the complainant itself was that fire missed (thus), then the question of bullet being fired from the pistol does not arise. It means that tainted investigation has been carried out by the investigating agency. There is no other corroboration regarding recovery of pistol and the cartridges. It is not the case of the prosecution as well as the complainant that empty cartridges remained at the spot nor there is a report that pallets which were left at the spot matched with the cartridges recovered from the appellants. Besides this, there are other discrepancies. PW-3 Charanjit Singh in his cross-examination has admitted the pendency of civil litigation between the parties. He has stated "I do not know" and again stated "it is correct that Court has granted status quo regarding existing condition of the passage". It is also admitted that order of status quo was confirmed by the Court thereafter. Copy of the demarcation has also been brought on record. In his statement PW-6 Dalbir Singh has admitted that appellants-convicts were present on the roof of their house and were raising hue and cry. Mohinder Singh had raised a lalkara that Sarpanch Harjit Singh has come and thereafter Malkiat Singh fired shot and convicts ran away. This story is not probable as the appellants were on the roof of their own house adjoining the house of Dalbir Singh. Thus, question of running away does not arise. The property in question is situated within the ''lal lakir'' (red line). It is also admitted that Patwari had made a report to the Tehsildar that there is no ''pahi'' in front of the house of Malkiat Singh as per revenue record. Harjit Singh Sarpanch had started construction. It appears that due to pendency of civil litigation between the parties, story was set up by Sarpanch to involve the appellants. However, he did not turn up for his cross-examination. In view of this, prosecution has failed to prove its case beyond reasonable doubt. Resultantly, the impugned judgment of conviction and order of sentence cannot be sustained, therefore, set aside.

Appeal qua appellant No. 2 - Mohinder Singh already stands abated as he has died during the pendency of this appeal on 13.10.2011.

Appeal qua appellant No. 1 - Malkiat Singh is allowed and he is acquitted of the charge. He is stated to be on bail. His bail bonds/surety bonds stand discharged.

No order as to costs.