Raj Kumar vs State of Punjab

H.S. Bedi, J.

This appeal arises out of the following facts :

Raj Kumar appellant and his brother Krishan Chand deceased and Ved ParkashPW 5, were residents of village Barsat, Police Station, Sadar Patiala. On 25th October, 1992, Upkar Chand, his brother Jaswinder Kumar and uncle Krishan Chand foresaid, had come from Patran in a jeep No. CHK1172 to pay obeisance to their ancestors in village Barsat, on the occasion of Diwali. They also took Ved ParkashPW5 from his house in village Barsat on the occasion. After doing so, they came on the link road leading from Patiala to the Sangrur Highway, when a Maruti Car No. PB058282, came close by and the appellant Raj Kumar armed with a .12 bore DBBL gun and carrying bandolier of cartridges emerged from it. He, therefore, loaded his gun and challenged his brothers Krishan Chand and Ved Parkash and called out that he would teach them a lesson for giving him an inadequate share in the joint property of the family. Ved Parkash and Krishan Chand entreated with the appellant, but despite their request, he first fired a shot at Krishan Chand which hit him in the chest and a second shot on Ved Parkash, which hit him on the left leg near the knee. Upkar ChandPW3 and Jaswinder Kumar raised a raula,1.40 on which the appellant emptied his gun, reloaded it, boarded the car and drove away. Upkar Chand and Jaswinder Kumar put the two injured in the jeep, but found that Krishan Chand had, in the meanwhile, succumbed to his injuries. The body of Krishan Chand and Ved Parkash in an injured condition were nevertheless carried to Rajindra Hospital, Patiala by Jaswinder Kumar, whereas Upkar ChandPW3 remained at the spot. In the meantime, Satya Devi wife of Vide Parkash also reached the spot, on which Upkar ChandPW3 leaving her to guard the place of incident, also left for the Police Station, Sadar Patiala to report the matter but when he reached the Bus Adda, of village Barsat, he met ASI Gulab SinghPW10 and made his statement Ex.PG at 9.40 a.m. and on its basis, a formal F.I.R. under Sections 302/307 of the I.P.C. and Sections 25 and 27 of the Arms Act, was registered at Police Station Sadar, Patiala at 10.40 a.m. with the Special Report being delivered to the Ilaqa Magistrate at 4 p.m. the same afternoon. ASI Gulab SinghPW10 accompanied by Upkar ChandPW3 then rushed to the Emergency Ward of the Rajindra Hospital, Patiala, and reached there at about 10 a.m. He prepared the inquest report Ex.PE with regard to the death of Krishan Chand which was duly attested by Ganesha Ram and Gian Chand PWs and the dead body was also subjected to a post mortem at 1.40 p.m. the same afternoon. The ASI also made an application Ex.PQ in order to ascertain the opinion of the doctor with regard to the condition of the injured Ved Parkash but as no doctor was available in the ward, his statement was not recorded. The ASI then reached the place of occurrence and started with the investigation. He also lifted two spent cartridge cases of 12 bore and five live cartridges of .32 bore from the spot. He made a search for the accused on 27th and 28th October, 1992 and finally arrested him on 29th October, 1992 after he had been produced before him by Jawahar Lal PW in the Police Station itself. The Maruti car aforesaid was also taken into possession by the police alongwith its papers. The appellant was interrogated on Ist November, 1992 and on the basis of his disclosure statement, a .12 DBBL gun, 10 live cartridges alongwith the licence were recovered from the almirah of his residential house at Patran on 4th November, 1992. The Duty Adjutant of the 15 Mechanical Infantry Regiment, also produced a revolver before the A.S.I. which was also taken into possession vide memo Ex.PAA. On completion of the investigation, the accused was charged under Sections 302/307 of the I.P.C. and section 27 of the Arms Act and as he pleaded not guilty, he was brought to trial.

The prosecution in support of its case relied primarily on the evidence of Upkar ChandPW 3, the first informant, Ved ParkashPW 5 an injured witness as also the evidence of ASI Gulab Singh PW10, Dr. Atul GuptaPW 1, who had medicolegally examined Raj Kumar appellant on 30th October, 1992 and had found nine injuries on his person including a fracture of the right ring finger, PW2 Dr. O.P. Aggarwal, who had conducted the post mortem examination on the dead body of Krishan Chand at 1.40 p.m. on 25th October, 1999 and had found that the injuries suffered by the deceased had been caused by a shot gun blast and Dr. Jatinderpal Singh PWof of the Emergency Section of Rajindra Hospital, Patiala, who had examined Ved ParkashPW 5 and had found one gun shot injury with multiple lacerated wounds on the left knee.

The prosecution case was then put to the accused under Section 313 Cr.P.C., and while admitting his relationship with the deceased and the witnesses stated as under :

"I am innocent. I have been falsely involved in the present case. Ved Parkash and Krishan Chand had grudge against me. On 25th October, 1992, Ved Parkash collected persons at his house including Krishan Chand deceased in order to take revenge from me. Krishan Chand was armed with revolved .32 bore and Ved Parkash was armed with a sua and other two persons were armed with gandasa and gun respectively. Krishan Chand, Ved Parkash and other two persons hired assailants and way laid me and Krishan Chand opened the attack and fired shot from the revolver, which hit on my head and Ved Parkash gave sua blow while other persons also caused injuries to me. I tried to run away in order to save my life and in the melee, Ved Parkash and Krishan Chand received gun shot while I saved my life by taking shelter from the military authority."

The appellant also examined Major R. Edwards as DW1 in his defence.

The trial Court came to the conclusion that there was no appreciable delay in the lodging of the F.I.R. and that in any case, even if it was presumed to have been lodged belatedly, it could not be fatal to the prosecution case, as in this situation, a little more care was required to be taken by the Court in evaluating the evidence. The Court also found that no explanation of the injuries on the person of the appellant was required to be given by the prosecution as it was not even the case put to Major R. EdwardsDW 1, (who had, as per the defence version, produced the appellant before the police) that there was any injury on his person at the time of his detention. The Court also found that as the injuries were not of a serious nature and as the appellant had been arrested on 29th October, 1992 and subjected to a medical examination a day thereafter, it was possible that the injuries had been caused by a friendly hand. The trial Court also held that the motive stood proved inasmuch that the appellant was upset with his brothers as they had done him out of his full share of the family property and for arriving at this conclusion, sought support from the D.D.R. entry Ex.PCC dated 10th October, 1992, which had been recorded an altercation between them. The trial Court then went on to appreciate the evidence of Upkar ChandPW 3 and Ved ParkashPW 5 and concluded that there was absolutely no reason to disbelieve these two witnesses as it was the admitted case that Ved Parkash had, in fact, received the injuries in the incident in which Krishan Chand had met his end. The Court also rejected the defence evidence given by Major R. Edwards by observing that it was ambivalent with regard to certain vital factors and as he was an Army Officer, he ought to have known the distinction between a 12 bore rifle and a 12 bore gun and as this witness had stated that a 12 bore rifle had been used, whereas the evidence shows that a shot gun had been used, his evidence was not reliable. The trial Court also rejected the documents Exs. DW1/A, DW1/B and DW1/C which were contemporaneous documents relating to the offence issued at the instance of the Major. The appellant was, accordingly, convicted for the offences charged for. Hence this appeal.

Mr. Ghai has, first and foremost, argued that the F.I.R. was highly belated and the time so available had been utilised to concoct a false story and to change the genesis of the incident. He has also urged that the injuries on the person of the appellant had not been explained and the observations of the trial Court that they could have been manipulated was, on the face of it, wrong as the prosecution evidence itself spelt out that the injuries were present on his person at the time of his arrest on 29th October, 1992. He has finally urged that the prosecution case was totally destroyed by the evidence of Major R. EdwardsDW 1, who was a truly independent witness and had absolutely no axe to grind in favour of either party and his evidence when read with the documents Exs. DW1/A to DW1/C clearly proved the correctness of the defence version or in any case dislodged the prosecution case.

Mr. Randhawa, the learned D.A.G. representing the State of Punjab has, however, emphasised that Ved Parkash PW 5 was a stamped witness and in the light of the fact that it was a case of fratricide and that too by a single accused, there was no occasion for any false implication. He has also emphasised that from the record, it appeared that the F.I.R. had been lodged promptly and if there was some delay, it could be ignored as the State of Punjab was in turmoil during those days on account of terrorist activities.

We have heard the learned counsel for the parties and have gone through the file very carefully.

It is the admitted case that the incident had taken place at about 8.15 a.m. in village Barsat about 13 k.m. away from the Police Station, Sadar, Patiala. The time of the filing of the F.I.R. is, however, a matter of serious dispute. As per the prosecution case, the statement of PW3 Upkar Chand had been recorded at 9.40 a.m. near the village which had led to the registration of the formal F.I.R. at 10.40 a.m. at Police Station, Sadar, Patiala, the special report being delivered in Patiala, itself at 4 p.m. In this connection PW2 Dr. O.P. Aggarwal in his statement stated that he had conducted the post mortem on the dead body on 25h October, 1992 at 1.40 p.m. In this situation, it is evident that the police papers would have been with the doctor prior to that time. Mr. Ghai has, however, referred to the cross examination of this doctor and to Ex.PC the copy of the post mortem report to show the time of 1.40 p.m. in the report had been changed to 1.40 p.m. from 4.40 p.m. We have examined the document Ex.PC and there can be no doubt whatsoever that the time 1.40 p.m. has been changed to 4.40 p.m. and after making the interpolation, the doctor has yet again written 1.40 p.m. This procedure in fact confirms our views that the earlier time has been interpolated. When called upon to explain this obvious fact, Dr. O.P. Aggarwal, in his cross examination stated that the post mortem had been held at 1.40 p.m. but as some of the words had been cut into, the numeral `1'' appeared to look like `4''. To out mind, this explanation is, on the face of it, absurd in the light of the visual examination of the document. Viewed in this light, it is significant that the FIR could have been lodged at any time upto 4.00 p.m. when the special report had been delivered to the Ilaqa Magistrate at Patiala itself.

It is with this background that Mr. Ghai''s next argument has to be examined. It has been submitted that the injuries on the person of the appellant had not been explained. The trial Court has given a finding that injuries were minor in nature and that as the appellant had been arrested on 29.10.1992, they could have been caused by a friendly hand. We find, from the prosecution evidence itself that this finding is untenable. It has come in the evidence of Dr. Atul Gupta PW1 that as the injuries were old at the time when the appellant had been examined by him, he had referred him to a Forensic Expert for his opinion with regard to the nature of the injuries and the manner in which they had been caused. It has been admitted by ASI Gulab Singh, PW10 that the appellant had been examined on 30.12.92 under the orders of the Court and even though the doctor had at that stage directed that his injuries should be xrayed, this direction had not been carried out and it was only on 31.10.92 when a fresh order was made by the Court that the appellant had been admitted to the Rajindra Hospital Patiala and his injuries xrayed. A.S.I. Gulab Singh emphatically denied that any direction had been given by the doctor that the appellant should be produced before the Forensic Expert to get him examined for his injuries but this statement is belied by the positive stance of the very doctor who had given this directive. It is also significant that the statement of Ved Parkash which was for the first time recorded on 26.10.92, although as per the prosecution case, he had been medicolegally examined in the hospital on 25.10.92. It is, therefore, obvious that on 26.10.1992, the police were aware that the appellant had received injuries in the incident but had taken no steps to carry out an investigation in this direction. We are, therefore, inclined to accept Mr. Ghai''s argument that the appellant had, in fact, been arrested on 25.10.1992 and in that situation, the entire prosecution story with regard to the genesis of the incident, the arrest of the accused and the recovery of weapon of offence and all steps taken in the investigation become clearly suspect. In this connection Mr. Ghai has drawn attention to the fact that in the statement u/s 313 Cr. P.C, the appellant had clearly stated that he had himself surrendered to the military authorities on 25.10.1992 and endorsed by the evidence of D.W. 1 Major R. Edwards that he had been handed over by them to the police on that very day alongwith a Maruti car and a DBBL gun and some live cartridges of 12 bore and 32 bore.

Mr. Ghai has finally relied on the evidence of DW1 Major R. Edwards and the documents Exs. DW1/A to DW1/C to submit that there was absolutely no justification in discarding the evidence of this witness. The learned D.A.G., however, appreciating that the evidence of the Army Officer would be of primary value has sought to underplay it by arguing that there were reasons to disbelieve this witness as the contents of the documents aforementioned, were too precise and clear to make them authentic.

We have considered this argument very carefully as we too appreciate that the evidence of this witness would be of the utmost importance in taking a decision on this appeal. Major R. Edwards has stated that on 25.10.1992, he was posted as Adjutant in the 64 Cavalry Regiment stationed at Patiala and that some personnel of the unit were training near Village Barsat, when he was informed that a person in a Maruti car had come to the unit and intimated that there had been a firing incident in the village. The officer then went to village Barsat and found that a Maruti car No. PB058282 alongwith Raj Kumar Appellant, two ladies, and one or two children had been secured by the Army Personnel. He then called police station Sadar Patiala and when the police came to the spot, he handed over the appellant, the car and its other occupants to the police alongwith a 12 bore rifle, 20 live cartridges of 12 bore and a 32 bore pistol. He has also stated that he had immediately sent a wireless message to the higher authorities i.e. Head Quarter 98 Armoured Brigade, vide document Ex. DW1/A and that subsequently on an enquiry made by the relatives of those detained by him, he had also addressed two letters to the SHO of Police Station, Sadar Patiala Ex.DW1/B and Ex.DW/C enquiring about their whereabouts. This evidence is fully spelt out by the aforesaid documents. We produce the evident Ex.DW1/A in extenso :

"Delta (.) Arms and Amn apprehended (.) 1 x 12 bore rifle (.) 20 cartridges of 12 bore (.) 6 rds of pistol (.) echo (.) SHO Sardar Police Station info (.) Police carrying out investigation in the matter."

Thus document itself when read alongwith the evidence of Major R. EdwardsDW1 clearly destroys the prosecution story in its totality. For those of us, who have seen through the days of 1992, it will not be difficult to remember that Operation Rakshak to which reference has been made in the opening part of the judgment pertained to the army action in Punjab to put down terrorism in the State. It is also significant that the evidence of this witness is substantially endorsed by the evidence of PW 10 ASI Gulab Singh when he stated that during days of occurrence, "the place of occurrence was under supervision of Military Personnels who had been deputed to guard the fish farm".

In the light of what has been mentioned above, the very fact that there were injuries on one of the witnesses and it was a case of a single accused becomes a matter of little significance. We are of the opinion that the entire prosecution story has been changed and bears out Mr. Ghai''s initial argument that the incident had not taken place in the manner suggested by the prosecution.

Faced with this view, Mr. Randhawa has argued that the defence story was also, in the face of it, improbable and the reference to the higher authorities could not be believed. Even assuming it to be so, the onus to prove its case rests on the prosecution and the weakness or the falsity of the defence version cannot mean that the prosecution story is correct.

For the reasons recorded above, we are of the opinion that the judgment under appeal cannot be sustained. The appeal is, accordingly, allowed and the appellant is acquitted of the charges levelled against him.