Sushil Kumar vs State of Punjab

S.S. Sodhi, J.

The challenge in appeal here is to the conviction of the appellants Sushil Kumar and Mehipal for an offence under Section 307 read with Section 34 of the Indian Penal Code and the sentence of four years'' rigorous imprisonment and a fine of Rs. 1,000/ as also their conviction under Section 25 of the Arms Act and Section 9 of the Opium Act, in respect of which they have been sentenced to one year''s rigorous imprisonment and two years rigorous imprisonment and a fine of Rs. 500/ respectively.

Accordingly to the prosecution, a nakabandi was held near the defence drain bridge in the area of village Bhucher Khurd in district Amritsar when at about 4 a.m. on January 30, 1983, a car PNT9553 came there from the side of village Chhina Bidi Chand. This car was being driven by the appellant Mehipal, while Sushil Kumar and their coaccused, Sardari Lal were sitting on the rear seat thereof. Inspector Madan Lal signalled this car to stop whereupon Sardari Lal got out from the car and fired at the police party. Mahipal stopped the car and tried to reverse it and in the process knocked down Sardari Lal and the car also went over his legs whereupon Sardari Lal was apprehended. Sushil Kumar got down from the other side of the car and aimed to fire his pistol at the police party, but just then constable Balbir Singh gave a dang blow on his wrist as a result of which the pistol fell down. All those three persons were then apprehended by the police at the spot. It is said that when the car had been signalled to stop, a shot was fired from the varylight pistol to light up the area and it is in the light thereof that this accident had occurred.

The prosecution story proceeds that after apprehending Sushil Kumar, Mehipal and Sardari Lal, the two pistols One of Sardari Lal and the other of Sushil Kumar were taken into possession and on search 15 kilograms of opium was also recovered from the dicky of the car.

The case of the prosecution rests upon the testimony of the police official who were members of the nakabandi. As regards the case under Section 307 read with Section 34 of the Indian Penal Code, the Police Officials examined were P.W.1ASI Puran Chand, P.W.4ASI. Sowarn Chand P.W.5 A.S.I. Gurcharan Singh and P.W.7 S.I. Manohar Singh. Besides this, there is the testimony of the two doctors, namely; P.W.2 Dr. Kulvinderjit Singh and P.W.3 Dr. Ashok Khingra. The case under the Arms Act against the appellantSushil Kumar is supported by the testimony of H.C. Savinder Singh and A.S.I. Sowarn Chand, and that against Mehipal is based upon the testimony of A.S.I.. Manga Ram and ASI Gurcharan Singh while the Opium Act case against Sushil Kumar and Mahipal is founded upon the testimony of A.S.I. Puran Chand and A.S.I. Manohar Singh. In all these cases, the same two witnesses were examined in defence, namely; Kewal Krishan and H.C. Sham Lal.

When examined under Section 313, Code of Criminal Procedure, 1973, both Sushil Kumar and Mehipal denied the case set up against them and pleaded innocence.

As mentioned earlier, all the cases here against Sushil Kumar and Mehipal are founded upon the testimony of Police Officials alone. Veer Singh, the only member of the public, associated in the nakabandi, the prosecution chose not to examine. In this behalf, it would be pertinent to advert to the crossexamination of P.W.7 S.I. Manohar Singh, where searching questions were put to him regarding this Veer Singh, designed to establish that he was a stockwitness of the police. Sub Inspector Manohar Singh was constrained to admit that Veer Singh had just happened to come to the Police Station when they joined him in the nakabandi party, but he could not say in what connection Veer Singh had come there. S.I. Manohar Singh could not give a straightforward reply to whether Veer Singh had ever been joined by him in any other case as a witness. When specifically questioned about a case under the Opium Act against one Kashmir Singh and Kala Singh registered on July 16, 1982, the subinspector Manohar Singh admitted that it was possible that Veer Singh had been cited as a prosecution witness in this case. A similar reply was given with regard to a case against one Bhira. SubInspector Manohar Singh also pleaded lapse of memory when asked whether this Veer Singh had been cited by him as a prosecution witness in 5 or 6 other cases. These replies do indeed lend plausibility to the suggestion put to Sub Inspector Manohar Singh that Veer Singh was a stockwitness of the police. The fact that despite all the time and opportunity available with the police to associate some independent witness and the only witness that they chose to associate was one of the type that Veer Singh appeared to be, cannot but detract from the credibility of the prosecution witnesses, the police party remained at the spot till the evening. At no later stage of the proceedings either was any member of the public associated.

The other aspect of the material significance here is the fact that despite Sushil Kumar and Sardari Lal having been armed as also all the members of the police party and two shots having actually been firedOne by Sushil Kumar and the other by S.I. Manohar Singh, no injury was caused to any one thereby. Not only this, on search of the car, no live cartridge was recovered. In other words, the prosecution would have the Court believe that Sushil Kumar and Sardari Lal were carrying pistols with just one cartridge each. Further, according to the prosecution, no money was recovered from either of the occupants of the car or from anyone else in the car.

Doubt in the prosecution case is also created by the injury suffered by Sardari Lal. The prosecution case being that this had been caused by the car going over the legs of Sardari Lal P.W.2. Dr. Kulvinderjit Singh who examined Sardari Lal, did indeed depose that the injuries could have been caused in this manner, but added that this could have been so if the vehicle happened to be at a slow speed, but it is significant to note that he went on to add that in cases where the wheel of a vehicle passes over the body, there ought to be some abrasion or redness on the affected part. This was not there in the case of Sardari Lal. The manner in which this injury was suffered by Sardari Lal, is thus rendered doubtful and it puts a cloud of doubt over the prosecution version.

The evidence led in defence, which consists of an application exhibit D/1 is also relevant here in as such as it seeks to suggest that Sardari Lal was already in the custody of the police before the date of the incident.

As is wellknown, the burden that lies upon the prosecution is to prove its case against the accused beyond all reasonable doubt. Applying this standard to the evidence led and the circumstances as stand spelt out thereby, the prosecution case clearly fail to measure upto it. The factors and circumstances, as discussed, raise strong doubts rendering it unsafe to rely upon the prosecution case. The conviction of the appellants cannot, therefore, be sustained and accordingly they are hereby acquitted of the charges framed against them under Section 307 read with Section 34 of the Indian Penal Code; Section 25 of the Arms Act as also under Section 9 of the Opium Act. The fine, if paid, is ordered to be refunded to them. The appellants, if are in custody, are ordered to be released forthwith.

These appeals are consequently hereby accepted.

Appeals accepted.