State of Haryana vs Hazari and anr.

S.S. Grewal, J.

Hazari and Rameshwar accused were charged under Section 307 read with Section 34 of the Indian Penal Code respectively for attempting to commit the murder of Hari Singh son of Hazari aforesaid, tried, and acquitted by Sessions Judge, Hisar vide his order dated 10th December, 1981.

In brief facts relevant for the disposal of this case as emerge from the First Information Report lodged by Hari Singh injured are that he was married with Shanti Devi in consideration of his sister''s marriage with the latter''s brother. About 13 years back Hari Singh separated from his father and at that time his father gave him five killas of land for cultivation and he started residing there in a small hut (dwelling unit). After sometime his father too started living with him. About three years back Hari Singh left that place because of domestic, quarrel and started living with his family in village Khara Barwala. Last year he had leased out his land to his father for a consideration of Rs. 1500/. Duration of that lease had expired. On the previous night i. e. on the night of 1841981 he along with his wife Shanti Devi was proceeding to their aforesaid land for cleaning water course. As they reached near their Dhani, his father and brother Rameshwar met them and told them not to go to the land and that Hari Singh had no share in that land. Hari Singh insisted that he would cultivate his share of the land and he would use the water course in order to utilize his turn of water of the following day. Rameshwar accused told Hari Singh that in case he valued his life he should go back and that he would not permit Hari Singh to enter the land at any cost. Out of fear both Hari Singh and his wife Shanti turned, back in order to go back to their house in village Khara Barwala. At about 11 P.M. as they reached near the Dhani of Bhago son of Shanker situated in the area of village Sadalpur at a distance of 21/22 killas from his fields. Rameshwar and his father Hazari way laid Hari Singh PW. Rameshwar raised a lalkara exhorting his father and coaccused Hazari to shoot Hari Singh and not to allow him to escape. Immediately thereafter Hazari accused filed from his country made pistol hitting Hari Singh PW on the right hand side of his back, as well as his right arm. Both Hari Singh and his wife Shanti raised alarm `Mar Diya, Mar Diya'' hearing which both the accused ran away from the spot and Hazari accused took away his pistol with him at that time. Hari Singh was then brought by his wife Shanti to the Dhani of her brother Balwant Singh situated at a distance of 21/2 Kos from the place of occurrence. The latter brought Hari Singh injured on Camel Back to Civil Hospital Adampur. As the doctor was not available there they went to Police Post where Hari Singh lodged the report with SI Chander Mohan.

Hari Singh was then removed to Civil Hospital, Hisar where he was medically examined on the next morning of the occurrence at about 8.30 A.M. by Dr. D. R. Chug, who found the following injuries on. his person :

A multiple punctured wound of the size of 1/4" x 1/4 on the back of lower part (of right side of chest, in an area of 6 inches, and also in the adjoining area of tipper part of back of right abdomen. There was no tabooing, no blackening and no charring. The wounds were circular in shape. The margins were inverted. Clotted blood was present.

A multiple punctured wound on the back and medial part of right elbow joint, and also on the lower 1" of right upper arm, and upper 1" of right forearm of the size of 1/4" x 1/4". Margins of the wounds were inverted. Clotted blood was present :

Xray examination of the said injured was conducted by Dr. D. R. Chug who found multiple radio opaque shadows of metallic density in the lower part of the right side of the chest, as well as right elbow joint and adjoining part of upper arm and forearm. On the basis of the Xray report the injuries on the person of Hari Singh, were declared simple. Both the firearm injuries of Hari Singh, according to Dr. D.R. Chug could be caused by a single shot. SI Chander Mohan inspected the spot, prepared rough site plan, recorded the statements of the witnesses and arrested the accused on 2641984. After completion of the investigation both the accused were challaned, tried and acquitted as already indicated above. Aggrieved by the order of acquittal passed by the learned trial Court, the State of Haryana has filed the present appeal.

The learned counsel for the parties were heard.

On behalf of the State, it was submitted that the testimony of Har Singh injured together with the testimony of his wife Shanti and the testimony of Balwant Singh PW, to whom Hari Singh narrated the entire occurrence and the medical evidence on the record is sufficient to prove the ocular account concerning the manner in which Hari Singh was fired at by his father Hazari on the exhortation of Rameshwar, and the same is sufficient to bring home charge under Section 307 of the Indian Penal Code against Hazari and under Section 307 read with Section 34 of the Indian Penal Code against Rameshwar accused.

Admittedly the relations between the parties who are closely related were strained. According to Hari Singh injured, he wanted to cultivate land which was given on lease to him by his fatherearlier. On the other hand the defence plea is that the possession of the land was with the accused and that Hari Singh PW wanted to take forcible possession of the said land and to achieve that purpose he along with Balwant Singh PW fired at Thakur wife''s brother of Hazari accused. Asmani wife of Balwant Singh PW is the daughter of Hazari accused. She is not residing with Balwant Singh PW and is living with her father. Furthermore, according to Hari Singh PW because of his strained relations with his father and brother he had to shift to village Khara Barwala about three years prior to the present occurrence and both the parties are not on visiting terms. In view of the inimical relations between the parties, the ocular account given by Hari Singh injured, his wife Shanti, as well as the version given by Balwant Singh PW has to be weighed with great care and, caution. It would thus be prudent to seek independent corroboration in respect of the ocular account given by the aforesaid witnesses on the salient features of the prosecution story.

It is difficult to believe the testimony of Hari Singh injured or Shanti PW that both of them along with their 21/2 years old child left village Khara Barwala where they were living and went near their land merely to clean water course at odd hour of the night. Rather in such like circumstances both the said PWs were expected to go to their land to clean the Khal on the morning of 1841991 in order to utilise the turn of water on the following day. No Warabandi or other record has been produced to prove that Hari Singh PW had the right to utilise the turn of water on 1941981. No Khasra Girdawri or any other revenue record has been produced to prove that Hari Singh PW had leased the land to his father during the previous year. In view of the strained relations between the parties during the previous three years it does not appeal to reason that Hari Singh PW would give the land on lease to his father during the year, preceding the occurrence. No reliable evidence has been produced that Hart Singh PW took possession of the land from Hazari accused so that he could cultivate the same himself on 1941981. In view of the circumstances referred to above, it seems highly improbable that Hari Singh and Shanti would go to their Dhani on the night of 1841981. Besides, there are material contradictions in the testimony of Hari Singh and Shand PWs concerning the version that they had actually gone to their Dhani on the night of 841981. Hari Singh PW stated. In his crossexamination that both of them were carrying out Kasai each in their hands when they left village Khara Barwala and went to their Dhani on the night of occurrence. Shanti PW on the other hand had stated that they had not taken any Kasai at that time as one Kassi was already lying in one of the Kotha of their dwelling unit. Rather according to her she was carrying a basket on her head in order to carry her child with her. Secondly, according to Hari Singh PW when they reached their Dhani, both the accused were putting fodder to their cattle. On the contrary, Shanti PW stated that both the accused were cleaning the water course at that time. Even otherwise it is difficult to believe that Shanti PW along with her infant child would accompany her husband at odd hour of the night merely for cleaning water course for cultivating their land situated in a different village. Thus the very presence of Shanti PW at the spot at do time of the occurrence is highly doubtful.

The next important aspect of the case is about the identification of the assailants at the time when the main occurrence allegedly took place and Hari Singh received gunshot injuries. Hari Singh PW stated that after the occurrence when he met Balwant Singh for the first time he told him that he got gun shot injuries, but, did not disclose the name of the assailant who was responsible for causing those injuries. Nor he told Balwant Singh PW in what manner he received those injuries. The testimony of Hari Singh PW that he has later on narrated the entire occurrence to Balwant Singh while they were on their way to Civil Hospital, Adampur seems highly improbable and is not worthy of reliance. in case both these PWs had identified the assailants at the time of the occurrence, they were expected to tell the names of those assailants and the manner in which the occurrence took place when they met Balwant Singh PW at his Dhani for the first time. None of these two witnesses have suggested the source of light in which they identified the assailants at odd hour of the night. Nor, they specifically mentioned that they had identified the assailants at the time of the occurrence from their voice on account of their close relationship. It is significant to note that the main occurrence took place in a short interval of time and according to Hari Singh PW, Hazari accused allegedly, fired from behind hitting Hari Singh PW on his back, whereas, according to Shanti PW she saw Hazari accused for the first time after he had already fired at Hari Singh PW. According to Hari Singh PW both he and Shanti were moving side by side when Rameshwar accused appeared and stood in front of him at a distance of two places, whereas, according to Shanti PW she was four paces behind her husband when Rameshwar accused abruptly appeared and stopped in front of them and raised a lalkara. It is also difficult to believe that in case the accused wanted to shoot Hari Singh PW in an isolated place, there was any need for Rameshwar accused to raise lalkara so as to forewarn Hari Singh PW before he was fired at. The version of both those witnesses that after the occurrence Hari Singh PW who had received forearm injuries came on foot in that condition to the Dhani of Balwant Singh PW situated at a considerable distance instead of going to his other relations whose hutments are situated comparatively at lessor distance does not seem natural probable or convincing. The testimony of Hari Singh and Shanti PWs concerning the main occurrence is also not creditable and trustworthy and no implicit reliance can be placed on their testimony in respect of the salient features of the prosecution story.

All these material contradictions and infirmities in the ocular account and other material circumstances coupled with the fact that it was a night time occurrence and omission to mention the source of identification casts grave doubt about the testimony of Hari Singh and Shanti PWs concerning identification of the assailants at the time when Hari Singh received firearm injuries. as well as the manner in which the main occurrence took place. The prosecution has thus not been able to bring home charge against the accused beyond reasonable doubt. The learned trial Court has rightly recorded the order of acquittal. This appeal is accordingly dismissed.