High Court of Punjab and Haryana, Chandigarh
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State of Punjab v. Natha Singh - CRA-D-100-DBA-2000  RD-P&H 8890 (19 October 2006)
Date of decision : October 16, 2006
State of Punjab ....Appellant
Natha Singh ....Respondent
Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal
Present : Mr. M.S.Sidhu, Senior Deputy Advocate General, Punjab None for the respondent
Virender Singh, J.
State of Punjab has preferred the instant appeal against the acquittal of Natha Singh respondent who along with one Baldev Singh was charged under sections 302 and 307 IPC. It is pertinent to mention here that Baldev Singh his co-accused was killed in an encounter with the police and the proceedings qua him were abated. The respondent was also declared as a proclaimed offender but was re-arrested in May, 1995 and the supplementary challan was filed against him.
The case of the prosecution in brief is that Kashmir Kaur PW1 widow of Jagjit Singh (deceased) made a statement to the police on 22.6.1990 that she along with her husband Jagjit Singh, her elder son Dilbagh Singh, younger to him Balraj Singh and her daughter Kulwinder Kaur were present at her house when at 7.40 PM, five/six persons entered into her house from the side of the street. Baldev Singh co-accused of the respondent was armed with A.K.47 rifle and the respondent was armed with double barrel .12 bore gun. She stated that she knew them earlier. The other four persons were armed with A.K.47 rifles each and were of the age group of 20/25 years. They were not known to her. All the accused had fired from their respective weapons upon her husband and consequently, he died at the spot. When Kulwinder Kaur her daughter came forward to save Jagjit Singh (since deceased), the accused also fired upon her and some shots hit on her left arm. She then states that out of fear her two sons did not raise any alarm. The accused then sped away from the spot. The motive projected for killing Jagjit Singh is that one Kundan Singh who was in relation of the complainant along with other persons had killed Suhag Singh and his brother and after being acquitted by the court, Kundan Singh had started living at house of Jagjit Singh and the accused were nursing a grudge for this. During the investigation certain empties of A.K.47 rifles and three empties of .12 bore double barrel gun were recovered from the place of occurrence. The case of the prosecution is that the police had been raiding the house of respondent and the co-accused but they could not be apprehended and ultimately were arrested on 13.6.1995.
The prosecution in order to substantiate the charge against the respondent has examined PW1 Kashmir Kaur. She is the complainant and eye witness to the occurrence. PW2 Kulwinder Kaur is also an eye witness to the occurrence. ASI Harjit Singh had proved his affidavit Ex. PB. DSP Surinder Singh PW4 was the SHO of Police Station Sarhali at the time of occurrence, before whom the complainant had made statement. He has investigated the case till it was handed over to ASI Faqir Chand. Dr.
Gurnam Singh PW5 has medically examined Kulwinder Kaur on 22.6.1990 and found certain injuries on her person. HC Gurmukh Singh PW6 is a formal witness who went to the hospital to procure the bed head ticket of Kulwinder Kaur. Dr. Ashwani Kumar Ahuja PW7 has conducted the post mortem examination on the dead body of Jagjit Singh and found four injuries on the person of deceased Jagjit Singh. In his opinion all the injuries were of fire arm.
The case of the respondent was of false implication. In defence, Mukhtiar Singh, Clerk of the office of Sub Divisional Magistrate, Khadoor Sahib had stepped into witness box who stated that as per the policy of the Punjab Government, the legal heirs of the persons killed by the terrorists were granted ex-gratia grant and the said grant was given to the legal heirs of Jagjit Singh. He further stated that an application for grant of ex-gratia payment was made by Kashmir Kaur, the complainant herein. He also proved the copy of the application of the complainant Ex. DD and the affidavit Ex. DF. He further stated that Kashmir Kaur had received the compensation on account of death of Jagjit Singh which was caused by the terrorists.
After appreciating the entire evidence, the respondent stands acquitted vide impugned judgment of learned Sessions Judge, Amritsar dated 9.4.1999.
We have heard Mr. M.S.Sidhu, learned Senior Deputy Advocate General, Punjab and with his assistance we have gone through the entire record very minutely. However, no one has put in appearance on behalf of the respondent to assist this Court.
Mr. Sidhu states that the learned trial court has failed to appreciate the case of the prosecution in the right perspective. There was no reason to disbelieve the evidence of Kashmir Kaur and Kulwinder Kaur PWs who are wife and daughter of the deceased. Kulwinder Kaur PW had also received injures in this occurrence and the evidence of these two witnesses had been discarded on technical grounds. The learned counsel then submits that there was a strong motive in the bosom of the respondent and his co-accused Baldev Singh (since deceased) to commit the murder of Jagjit Singh but the learned trial court has not properly appreciated that aspect of the matter.
Primarily on the aforesaid submissions, Mr. Sidhu prays for setting aside of the judgment of acquittal.
After giving out thoughtful consideration to the arguments advanced by Mr. Sidhu and going through the entire evidence on record, we do not find ourselves in agreement with him as, in our view, the prosecution has not been able to prove its case beyond any shadow of doubt against the respondent. For evaluating the entire case of the prosecution, the learned trial court had formed the following questions for arriving at just conclusion of the case.
1) Whether accused Natha Singh accompanied with accused Baldev Singh (since deceased) and their companions on 21.6.90 at the house of Kashmir Kaur, complainant, had fired shots from .12 bore double barrel gun and A.K.47 rifles, as a result of which Jagjit Singh alias Ajit Singh, deceased, received fatal injuries and Kulwinder Kaur received fire arm injury? 2) Whether Jagjit Singh alias Ajit Singh was shot dead by unknown terrorists on 21.6.90 at mid night and Kulwinder Kaur also received fire shot injury at the hands of unknown terrorists Whether there is any delay in lodging the report with the police.
If so whether the same has been explained? 3) Whether there is any delay in lodging the report with the police. If so whether the same has been explained? 4) Whether the prosecution has succeeded in proving motive on the part of the accused against the deceased? 5) Whether the prosecution has succeeded in proving its case against the accused ?
For analysing the aforesaid aspects of the case, the learned trial court has dealt with each of it individually. The case set up by Kashmir Kaur in her statement Ex. PA which is the basis of the registration of the formal FIR is that she had left Balwant Singh and Sadhu Singh near the dead body before lodging report. The statements of these witnesses Ex. DB and DC were recorded by the Investigating Officer in inquest report Ex. PC which was prepared at the spot in the presence of aforesaid two witnesses who have stated that the occurrence had taken place during the mid-night time and the same was the result of terrorists' activities. These two witnesses are next neighbourers of the deceased. The death had taken place during mid night. The fact that the occurrence had taken place during mid night is clear from the statement of Dr. Ashwani Kumar PW7, which was read out before us. He had stated that about 4 Oz. semi digested food from the stomach of the deceased was found. Although the exact time of death cannot be ascertained from this opinion, but from the totality of facts and circumstances of the instant case, it can be said that the occurrence had taken place during mid night. The learned trial court has rightly taken all these aspects into consideration and we do not find any perversity in the said view.
With regard to involvement of the present respondent and Baldev Singh, his co-accused (since deceased) the learned trial court has taken into account another flaw in the statement of Kashmir Kaur wife of the deceased. The same is discussed in para no. 20 of the impugned judgment and runs as under:-
"Looking from another angle also, Kashmir Kaur, complainant in her statement Ex. PA/1, made before police had given not only the parentage of accused Natha Singh and of Baldev Singh but had also given their addresses in her statement. Normally it could not be known to Kashmir Kaur especially when both these persons belonged to far of places. Therefore, the possibility cannot be over ruled that Kundan Singh who nursed grudge against Baldev Singh and Natha Singh accused was the person who had prompted Kashmir Kaur to name both these accused as assailants along with other accused persons. Since Kundan Singh, as per the prosecution case was not present at the time when the occurrence had taken place and the report was lodged by Kashmir Kaur after a delay of about 12 hours, the possibility cannot be ruled out that she brought in a coloured version of the occurrence in consultation with Kundan Singh. It is just not clear as to what was the motive with Baldev Singh and Natha Singh to kill Jagjit Singh, deceased. The grievance if any as per prosecution version, both these accused had, it was with Kundan Singh. Had Natha Singh and Baldev Singh accompanied the terrorists, then they would have first found out the whereabouts of Kundan Singh and they would have asked about it from the deceased before firing upon him. It is not the case of Kashmir Kaur, complainant and her daughter Kulwinder Kaur (PW2) that accused Baldev Singh and Natha Singh earlier visited their house. From the totality of the circumstances involved in the present case, it appears that it was at the instance of Kundan Singh that the names of Natha Singh and Baldev Singh were introduced in the F.I.R. The statements of Sadhu Singh and Balwant Singh, next door neighbourers of Jagjit Singh, deceased go to show to a great extent that the killing of Jagjit Singh was the act of the terrorists, who were admittedly not known, nor were identified by any of the witnesses. " We do not find that the aforesaid view taken by the learned trial court is erroneous on any count.
Taking of ex-gratia grant from Punjab Government by Kashmir Kaur on account of the death of her husband is also taken against the prosecution by the learned trial court. The learned trial court given a categoric finding that it was a brain-work of the terrorists in causing death of Jagjit Singh who was Sarpanch of village Chack Mehar at the relevant time.
With regard to the present respondent (Natha Singh), the learned trial court has observed that there is sufficient material available on the record which would go to show that he was not present at the time when Jagjit Singh was killed. For arriving at the said conclusion, the view taken is that Kashmir Kaur has stated that at that time, Natha Singh was armed with .12 bore rifle whereas Kulwinder Kaur PW2 stated that he was armed with A.K.47 rifle. This discrepancy has been considered in the light of the statement of Dr. Ashwani Kumar Ahuja PW7 who stated that he had not found any pellet or wad in any of the injuries found on the dead body at the time of post mortem examination. All the injuries were through and through fire shot and the exit injuries were far bigger than entry injuries. We have once again perused the entire statement of Dr. Ashwani Kumar Ahuja for our satisfaction.
Another fact which has come in the evidence is that even the Investigating Officer has not found any empty of .12 bore gun because nothing is mentioned in column Nos. 22 and 23 of the inquest proceedings Ex. PC. The observation of the learned trial court is that there is no mentioning of deposit of six empties even in Register no. 29 in Police Station Sarhali as admitted by PW4.
Injury of Kulwinder Kaur allegedly received at the time of occurrence is also disputed by the learned trial court observing thus:- "The presence of Kulwinder Kaur, otherwise at the time of occurrence appears to be doubtful, because her injury having been caused with a fire shot at the same time, when deceased received fatal injuries, is also not proved. PW5 Dr. Gurnam Singh categorically stated that he had not seen the injury physically, as the same was already bandaged. He has further stated that no x-ray report or operation notes of the injury were received by him and as such, he could not declare the nature of the injury or the kind of weapon used. I have reasons to hold that certainly the presence of Kulwinder Kaur on account of the fact that she had stated that accused Natha Singh was armed with A.K.47 rifle and that her injury having not been caused with a fire shot, being not proved, is not fully established at the time of occurrence. As such, her statement cannot be taken to be credible or inspiring confidence."
The learned trial court had also considered the delay of 12 hours in lodging the report with the police observing that no plausible explanation has been adduced by the prosecution for this delay. May be, in the case in hand, we do not consider the said delay to be fatal for the reason that in those days State of Punjab was badly effected because of terrorism especially Taran Tarn of Amritsar district and no body dared to come out of their house during night hours, still after having rescanned the entire evidence minutely with the assistance rendered by Mr. Sidhu, learned Senior Deputy Advocate General, Punjab, we are of the considered view that the view taken by the learned trial court in doubting the case of the prosecution is not perverse qua Natha Singh respondent and as such it does not deserve to be disturbed.
It is settled legal position that an order of acquittal is to be disturbed only when there are compelling and substantial reasons for doing so. This principle was elucidated by the Apex Court in Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225, wherein it was observed as under:-
" While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions." In State of Punjab vs. Pohla Singh and anr. 2004(1) RCR (Criminal) 5, while dealing with an appeal against acquittal, their Lordships have observed that there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. But generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing towards the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented.
We find no demonstrable perversity in the impugned judgment.
Resultantly, the instant appeal is dismissed having no merit in it.
( Virender Singh )
( A.N. Jindal )
October 16, 2006 Judge
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