State of H.P. vs Joginder Singh and Others

Bhawani Singh, J.—This appeal, by the State of Himachal Pradesh, is directed against the judgment of Sessions Judge, Una, in Criminal Appeal No. 16 of 1980 where by the judgment of the trial court in Criminal Case No. 177-1 of 1979 has been set aside and the accused have been acquitted of the charges against them.

Briefly, the case of the prosecution is that on 25-7-1978 at about 7.00 A.M. Harjaib Singh accused was passing through the path in front of the house of the complainant Jagat Singh. He was checked by Chhinda alias Joginder Singh (P.W.- ) from passing through this passage. Some altercation was exchanged between them. Further case of the prosecution is that Harjaib Singh went to his house and came back within two or three minutes along with other accused. He raised ''Lalkara'' to the complainant party. Joginder Singh accused was armed with a gun while Harjaib Singh had a Kirpan. Prem Singh accuesed waspossessing a Sua-Wali-Lathi and Tela Singh and Mohinder Singh accessed were empty handed.

When Joginder Singh alias Chhinda (PW.1) came there, Tela Singh accused gave him a Kirpan blow after taking the Kirpan from Harjaib Singh. Then Prem Singh accused took the Kirpan and tried to attack Chhinda but Gurdev (P.W- ) klintervened and received injuries on the fingers of his right hand. Further prosecution case is that Joginder Singh accused fired gun shot which hit the legs of Joginder Kaur wife of Jagat Singh, complainant, and caused injuries to her. Thereafter, Mohinder Singh took the same gun from Joginder Singh accused and fired two shots which hit Ranjit Singh alias Goga and Karnail Singh alias Bula. When Jagat Singh and Karam Singh tried to rescue Joginder Kaur, Prem Singh accused hurled a brick bat which hit Karam Singh (P.W.- ) on the forehead. Soon thereafter, Harjaib Singh accused also gave a blow with Sua-Wali-Lathi on the forehead of Karam Singh thereby causing injury on his person. All the accused thereafter hurled brick bats which caused injuries to Kesar Kaur and Gurdev Singh. Ujagar Singh, Tarsem Singh, Karam Singh, Avtar Singh, Mela Singh and Atma Singh saw the occurrence when the accused ran away. It is further alleged that the Kirpan and Sua-Wali-Lathi were snatched by the complainant party but the gun was taken away by the accused with them.

This incident was reported telephonically from the village and the report was recorded at Police Station Una at 4.40 P.M. on 25-7-1978 when Sub-Inspector Madho Ram along with the police force moved to the place of occurrence and recorded the statement of Jagat Singh complainant u/s 164 of the Code of Criminal Procedure. It formed the basis of the First Information Report.

The Police promptly commenced the investigation. Site plan was prepared and rifle and two empty cartridges were recovered from the house of Joginder Singh. One cartridge Gatta (Wat) and pellets and blood stained earth was taken and sealed by the Police and sent for chemical examination. Blood stained Kirpan and Sua-Wali-Lathi were also produced by Jagat Singh complainant. On medical examination, two injuries were found on the person of Karam Singh. Out of these two injuries one was grievous caused with blunt weapon. Four injuries of incised wound on the person of Joginder Singh alias Chhinda were also found to have been caused with sharp edged weapon. Two incised wounds, simple in nature, caused with sharp edged weapon were found on the person of Gurdev Singh while three abrasions, simple in nature, caused with blunt weapon were found on the person of Kesar Kaur. One injury of simple nature caused with blunt weapon was found on the person of Gurdev Singh and two small punctured wounds of simple nature caused with fire am were found on the person of Manjit Singh and three small rounded punctured wounds, simple in nature, caused with fire arm were found on the person of Karnail Singh and multiple punctured wounds, one of grievous nature, caused with fire arm, were found on (he person of Joginder Kaur and these find mention in the Medicolegal certificates (Exs. P.W.-9/A to Ex. P.W.9/D). The Chemical Examiner''s report (Ex. P.W.-7/C) reveals that the earth, Lathi and Shalwar had human blood. The Forensic expert reported that the Wad was of 12 bore gun.

On completion of the investigation, it was found that the accused formed an unlawful assembly and in furtherance of their common object to kill the complainant party, gathered there with deadly weapons and committed the offence.

At the initial stage, the challan was put up Under Sections 148/307/308/326 and 149 of the Indian Penal Code. The accused were committed to the court of Sessions. However, the challan was sent back by the Sessions Judge for trial of offences like 148/326/325/324/323 and 149 of the Indian Penal Code.

Turning to the explanation of the accused, they say that Harjaib Singh was going to the fields through the thoroughfare passing in between the houses of the parties and Joginder Singh alias Chhinda assisted by Gurdass Singh not only caught hold of him but also took his turban and tied it around his neck before pulling him towards their court-yard. His cries attracted Prem Singh, Tela Singh and Joginder Singh and they reached the spot empty handed. On the other hand, Gurdass Singh armed with a Kassi started giving blows to Tela Singh. Both the parties grappled with each other and started throwing brick bats and it was during this time that Joginder Singh accused in order to scare away the parties brought the gun duly loaded. Seeing the gun, some members of the complainant party pounced upon him and caught hold of the gun which went off during this tussel and the pellets struck the ground before hitting Joginder Kaur, Karnail Singh and Manjit Singh who were standing at a distance from that place. They also say that Harjaib Singh, Prem Singh and Tela Singh who also received injuries in this incident went to the Police Station to lodge a report but they were kept there by the Police and their first information report was not investigated. Instead, the Police investigated the case on the report of the complainant party. Mohinder Singh accused claimed alibi.

After collecting the evidence, the accused were challaned and the trial, in the court of Chief Judicial Magistrate, Una, ended in the acquittal of Harjaib Singh and Mohinder Singh. All others, namely, Joginder Singh, Prem Singh and Tela Singh were convicted u/s 326/324, u/s 325 and Section 324 of the Indian Penal Code respectively and punished for varying terms of imprisonment and fined.

The matter was brought before the applleate Court by the convicted persons and by judgment dated 15th November, 1980, they were also acquitted. The present appeal has, therefore, been filed by the State of Himachal Pradesh against this judgment and the main thrust of the counsel for the State has been that the acquittal recorded by the appellate Court is not in accordance with law and evidence on record. So, the same deserves to be set aside. On the other hand, Sh. S.S. Kanwar, appearing for the accused, made submissions in support of the judgment and also contended that this Court may not interfere in an appeal against acquittal that too after a long lapse of time, that is, 25th July, 1978 to this 1st day of June, 1990, when this matter has come up for final hearing.

The judgments of the courts below were perused. The matter has been gone into quite comprehensively. The present appeal is preferred by the State against the acquittal of the accused convicted by the trial Judge. Therefore, it has to be examined, without going into the minute details of the matter since the learned Sessions Judge has already discussed the same quite exhaustively, whether the acquittal of the accused recorded by the appellate Court is legally correct or calls for interference by this Court.

It is quite clear from the evidence that the relations between the parties had not been cordial. It is also the concurrent view of the courts below that the passage in questions was a thoroughfare used by the general public and not exclusively used by the complainant party. The incident occurred as soon as Harjaib Singh accused happened to pass through it. He was way-laid and pulled towards the Sehan. It was on his cries that other members of his family and the complainant party came to the place of occurrence and a free fight started between the two groups wherein there was free use of brick bats.

It is true that Joginder Singh accused was armed with a gun but there is no clear evidence as to the ownership and use of Kirpan and Sua-Wali-Lathi. The prosecution witnesses have attributed the use of these weapons to some of the accused but it has been rightly rejected by the appellate Court since they were not only parties to the incident but also inimical qua the accused party. Appreciated in the light of this kind of situation, it is difficult and dangerous to accept their testimony as to the incident and the participation of the accused in this incident. The evidence is quite clear to point out that they have not only exaggerated the incident but also improved their versions. Even some of them have stated that the gun was fired more than once not only by Joginder Singh but also by Mohinder Singh, which has, on evidence, proved to be a white lie. Same has happened as to the use of Kirpan and Sua-Wali-Lathi. These were either owned by the complainant party or introduced at a subsequent stage.

The injuries sustained by the accused and non-mention thereof by the prosecution witnesses indicated their partisan version of the incident. This is obviously because of the strained relations between the two parties. The medical evidence pointing out the injuries sustained by the members of the two parties demonstrates quite clearly that it was a free fight between the two and the one sided version given by the prosecution is palpably untrue. Detailed examination of the prosecution witnesses given by the appellate Court shows that the explanation given by the accused is not only probable but also better than the one given by the complainants. The prosecution witnesses have assigned roles to some of the accused like Mohinder Singh, Joginder Singh, Tela Singh and Prem Singh, although the prosecution witnesses have either made contradictory versions as to their part or have excluded their participation. The appellate Court has rightly come to the conclusion that in case the accused wanted to kill the other party, they could have easily succeeded in doing so by firing shots straight at them but the way the shots were fired towards the ground indicated that the intention was to scare them away.

Taking into consideration all the facts and circumstances of this case, there is no justification to take a view different than the one taken by the appellate Court and to convert the acquittal into conviction at this stage. The result is, there is no merit in this appeal and the same is dismissed. The bail bonds and surety bonds of the accused executed by them at any stage of the trial of this case are hereby cancelled.