Bashir and another vs State of Punjab and another

T.H.B. Chalapathi, J.—These appeals have been filed against the conviction and sentences imposed by the learned Additional Sessions Judge, Ferozepur in Sessions Case Nos. 51 and 52 of 1987 (Sessions Trial Nos. 44 and 45 of 1987) dated 8.10.1987.

The accused who are eight in number have been prosecuted for the offences under Sections 148, 307 307/149, 323 and 323 read with Section 149 I.P.C.

According to the case of the prosecution. Pritam Singh, Diwan Singh and Ishar Singh were real brothers and Pritam Singh and Diwan Singh were allotted 5 Killas of land each, but no land was allotted to Ishar Singh. Smt. Kakko was not in possession of any land and some share in the produce was being given to her since her husband Ishar Singh died. The widow of Ishar Singh wanted to give the land to some others for cultivation. She asked Khana, who is accused No. 2, to cultivate her 5 Kanals of land. He was being prevented by Karnail Singh and others. In the evening Khana brought a tractor of Thana with some other persons and started cultivating the land. When Karnail Singh, Mohinder Singh and Kartar Kaur tried to stop the accused from cultivating the land, a quarrel ensured in which Khana accused No. 2 gave a gandasa blow from its reverse side on the head of Kartar Kaur. Soda, accused No. 6, gave a gandasi blow on the fingers of left hand of Kartar Kaur, who fell down. Thereafter accused Kashmir Singh gave a dang blow on the legs of Kartar Kaur. When Karnail Singh, Pritam Singh and Mohinder Singh went to rescue Kartar Kaur, Bashir and Tidda fired from their pistols and Pritam Singh was hit in the chest, Mohinder Singh was hit on the back and Karnail Singh was hit on the legs. Thereafter accused left the spot. The injured were brought to the Hospital where they were examined and the statement of Karnail Singh was recorded by the police at the Hospital. On the basis of the statement of Karnail Singh, the case was registered and the investigation was taken up. After completion of the investigation, the prosecution filed the charge sheet against the accused.

On the basis of the material placed before him, the learned Magistrate committed the case to the Court of Session as the offence u/s 307 I.P.C. was exclusively triable by the Court of Session.

After committal, the learned Additional Sessions Judge framed appropriate charges against the accused.

In order to prove the guilt of the accused, the prosecution examined 10 witnesses and marked certain documents. After closure of the evidence for the prosecution, the accused were examined u/s 313 Code of Criminal Procedure and they examined only one witness namely Thana Singh as DW-1.

After considering the evidence on record, the learned Additional Sessions Judge, Ferozepur acquitted the accused No. 3 to 8 and convicted Bashir, accused No. 1 for the offences under Sections 307 and 323 read with Section 341 I.P.C. and also convicted accused No. 2 Khana for the offences under Sections 307 read with Section 341 I.P.C. and Section 323 I.P.C. Bashir Accused was sentenced to undergo R.1. for a period of 1-1/2 years and pay a fine of Rs. 500/- and in default to pay fine, he was directed to undergo R.1. for two moths for the offence u/s 307 I.P.C. He was further sentenced to under go R.1. for six months for the offence u/s 323 read with Section 341 I.P.C. While accused No. 2 Khana was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 250/- for the offence u/s 307 read with Section 341 I.P.C. and he was also sentenced to undergo R.I. for a period of six months u/s 323 I.P.C. Bashir, Appellant in Cr. Appeal No. 560-SB of 1987 was also sentenced to undergo R.I. for a period of one year for the offence u/s 25 of the Arms Act.

Aggrieved by their convictions and sentences, the accused filed these two appeals. Since both the appeals arise out of the same incident they were heard together.

According to the case of the prosecution, all the accused came together and committed the offence. In fact according to the case of the prosecution it was Bashir and Tidda who fired from their pistols as a result of which Pritam Singh was hit in the chest, Mohinder Singh was hit on the back and Karnail Singh was hit on the legs. But the prosecution did not prosecute Tidda who was alleged to have fired from his pistol on the ground that he was not traceable.

A reading of the FIR clearly shows that all the eight accused came together and committed the offence. The entire evidence is common to all the accused. There is no question of accepting the evidence in part in regard to some of the accused and rejecting the evidence in regard to other accused. Admittedly, the incident took place in a dark night. The witnesses stated that they saw the incident in the light of the tractor. PW-3 is the son of Pritam Singh and also the complainant and injured. According to him, his paternal uncle Ishar Singh and Diwan Singh have expired and his father Pritam Singh and uncle Diwan Singh were allotted 5 Killas of land each, but no land was allotted to Ishar Singh though Smt. Kakko being the widow of Ishar Singh was entitled to a share in the produce of the land. He further deposed that Kakko told them that she had given the land to one Khana for cultivation and the dispute had arisen in view of the fact that Kakko, widow of Ishar Singh, wanted Khana gave a gandasi blow from the reverse side on the head of Kartar Kaur, Soda gave a gandasa blow on the fingers of left hand of Kartar Kaur and Kashmir Singh gave a dang blow on the legs of Kartar Kaur and when they went forward to rescue Kaur, Bashir and Tidda started firing from their pistols. When they raised alarm, all the accused ran away. In the cross-examination, he stated that they did not inform anybody in the village about the incident. They also did not go to the Police Station. It was only in the Hospital the statement of PW-3 was recorded on the basis of which FIR was registered.

According to PW-4 who is another son of Pritam Singh, he was hit on the left arm and Karnail Singh was hit by the fire below knee joint and when the alarm was raised, all the accused ran away. Kartar Kaur was also an injured witness. She was examined as PW-6. She deposed in the cross-examination that she does not know if blood stained earth was lifted from the place of occurrence or not as she was in the Hospital. She further stated that it was dark at that time. She also stated that she was given a blow by Khana accused in the disputed land. She also stated that the prosecution witnesses were fired at when they tried to rescue her.

It is pertinent to note that PW-6 was not examined in chief in Court. She was tendered only for cross-examination on the basis of her affidavit. This procedure adopted by the learned Additional Sessions Judge is contrary to the provisions of the Code of Criminal Procedure. It cannot be said that Kartar Kaur, an injured person, was a formal witness. She was a material witness not only because she received injuries at the hand of the accused, but also she was a witness to the entire occurrence. For the reasons best known to the prosecution, she has not been examined in court. She was not exam-ined-in-Chief in Court and she was only tendered for cross-examination. Such a procedure is not contemplated either by the Code of Criminal Procedure or by the Indian Evidence Act. Every material witness has to be examined in chief in Court u/s 137 of the Evidence Act. u/s 296 of the Code of Criminal Procedure the evidence of any person whose evidence is of formal character may be given by an affidavit and may be read in evidence in any inquiry, trial or other proceedings under the Code. Under Sub-section (2) of Section 260, the Court may order on the application of the prosecution or the accused, summon the said witness and examine him as to the facts contained in his affidavit. The procedure as contemplated u/s 296 Code of Criminal Procedure is applicable only to a formal witness. But not to a material witness who is an eye witness to the incident. There cannot be any dispute of the fact that PW-6 was not a formal witness, but she was very much material witness not only because she sustained injuries, but she was also an eye witness. Therefore, tendering of her affidavit and subjecting her to cross-examination was not proper and her evidence has to be excluded from consideration altogether.

The evidence of PW-7 is only of formal nature. PW-10 is the Investigation Officer.

It is no doubt true that some incident had taken place in which some of the persons received injuries, but the fact remains that whether prosecution established the guilt of the accused beyond all reasonable doubts. The evidence adduced by the prosecution does not satisfy the requirement of proof. As already noticed, the entire evidence is one and same in respect of all the accused.

The learned Additional Session Judge himself disbelieved the evidence in respect of some of accused. If the evidence cannot be separated, then there cannot be any conviction of some of the accused.

In this view of the matter. I allow both the appeals, set aside the convictions and sentences imposed by the learned Additional Sessions Judge, on the Appellants and acquit them of the charges framed against them. Their bail bonds shall stand cancelled.