State of Punjab vs Bhupinder Kumar

S.D. Bajaj, J.

Nachattar Singh author of First Information Report No. 131 recorded in Police Station, Nihal Singh Wala of Faridkot district at 10.00 PM on 23rd July, 1983 reported to the police, "Today at about 7.30 PM my brother Waryam Singh alias Chhota, Chand Singh, Gurjant Singh sons of Sarwan Singh, Jat by caste, residents of village Himmatpura and Jallaur Singh son of Inder Singh, Jat by caste, residents of village Nathana and I were going towards Gurdwara from our house. Our truck was already parked along the road. We had to bring diesel from Nihal Singh Wala for business purposes. When we all reached near the electric pole which is near the road, a gun shot was fired from inside the Daramshala of Jaila from the side of Gurdwara Sahib. When we looked towards Dharamshala, Bhupinder Kumar alias Ghota son of Inder Nath, Baragi Sadh, resident of Himmatpura, was armed with pucca rifle and his son Harbans Lal was also armed with pucca rifle. His brothers Sukhdev Chand and Chetran Parkash were armed with 12 bore guns, Nasib Chand was armed with a revler and Jugraj Chand was armed with a Gandasa. Bhupinder Kumar fired a shot with his rifle which hit the back side of the right shoulder of Waryam Singh alias Chhota. Then Harbans Lal fired a shot with his rifle which hit Jallaur Singh. We laid there and thereafter Bhupinder Kumar and his coaccused continued firing shots with their respective weapons. Jugraj Chand kept on raising lalkaras saying that none should be allowed to escape that day. Chand Singh who was armed with a .12 bore gun also fired shots in his selfdefence. Chand Singh continued firing shouts. Gurjant Singh and I took Chhota Singh alias Waryam Singh and Jallaur Singh to the wall of Ajmer Singh by giving them support. They fired shots towards that wall also. Bhupinder Kumar and his coaccused went away to their respective houses while firing shots and raising rula. Therafter, Gurjant Singh, Chand Singh and I put Waryam Singh alias Chhota and Jullaur Singh injured in a truck by giving them support and removed them to Civil Hospital, Nihal Singh Wala. Sarvahri Gurmel Singh son of Mukhtiar Singh, Surjit Singh son of Sarwan Singh and Mukand Singh son of Natha Singh, residents of village Himmatpura also accompanied us to Nihal Singh Wala where the doctor examined them (the injured) immediately and referred the injured to the hospital at Moga. We all left for Moga in that truck. When we reached Civil Hospital, Moga, Waryam Singh alias Chhota had breathed his last as a sequel to the five shots received by him. The doctor at Moga referred Jallaur Singh injured to the hospital at Ludiana whereupon Gurmel Singh son of Mukhtiar Singh Surjit Singh son of Sarwan Singh and Mukand Singh son of Natha Singh, residents of village Himmatpura removed Jailaur Singh injured to Ludhiana, in a car and I after leaving Chand Singh near the dead body of Waryam Singh alias Chhota in the Moga Hospital, have come to lodge a report. The cause of grouse is that about 6/7 years back, Harbans Lal and his companions had filed shots at my brother Waryam Singh alias Chhota Singh for which the Police had challaned Harbans Lal and his companions. But now 18/19 days ago Chetan Parkash involved me and my brother Waryam Singh alias Chhota etc. in a false case by firing shots at his own truck and got registered a case against us at Police Station, Nihal Singh Wala. I have come to lodge a report. Action may be taken.

Sd/ Nachhattar Singh.

Sd/

Mohinder Singh

SI/SHO."

On being charged with the commission of offences under sections 148, 302/149 and 307/149 of the Indian Penal Code all the five accused charged there with and in respect of their individual charges under sections 302 and 307 of the Indian Penal Code respectively accused Bhupinder Kumar and Harbans Lal pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated 6.9.1984 learned trial Court acquitted all the six accused by giving them the benefit of doubt on grounds of previous enmity, shifting of the place of occurrence in the course of trial by the prosecution witnesses and on account of the delay in delivery of special report to the learned Ilaqa Magistrate having been untilised to weave the throbweb of prosecution case against the accused. Feeling aggrieved therefrom, the State of Punjab has filed Criminal Appeal No. 24DBA of 1985 in this Court.

We have heard Shri S.S. Kang, DAG Punjab for State appellant, nemo for the acquitted accused respondents in spite of due service and have perused the relevant material on record very carefully.

Special report of the occurrence allegedly taking place at 7.00 p.m. on 23rd July, 1983 reached the learned Ilaqa Magistrate at 7.45 a.m. on 24th of July, 1983 i.e. 2 hours and 45 minutes after the occurrence. In Ishwar Singh v. State of Uttar Pradesh, AIR 1976 SC 2423 their lordships of the Supreme Court observed, "Delay in dispatching the FIR to the magistrate is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in court differs at least in two very important particulars from that narrated in the FIR." In the present case also the case set up in court in entirely different from the one narrated in the FIR regarding shifting of the place from which firing was made by the accused on the deceased and others and the absence of an allegation that after firing the first shot from inside the Dharamshala the accused came out in the open; if so how and why? Observations made by the Supreme Court therefore squarely cover this case as well. In terms of guidelines we hold that during this inordinately long period the prosecution had only been trying to introduce improvements and embellishments and set up a distorted venison of the occurrence. Infirmity aforesaid renders the prosecution case set up against the accused to be of a doubtful nature and suspicious character. Benefit of the doubt aforesaid had to be given to the respondents arrayed as accused in this case. Finding recorded by the learned trial Court on this score is, therefore, to be affirmed.

Then again for cogent and convincing reasoning obtaining in paragraphs 14 to 16 of its impugned judgment dated 6th of September, 1984 learned trial Court reached the conclusion that the prosecution witnesses had purposely shifted the place of firing from inside the Dharamshala to khal of the well outside the Dharamshala because while standing inside the Dharamshala accused assailants could not be seen by them for establishing their identity. Recovery of blood from point marked `I'' in the site plan, recovery of wads and pellets from places marked `G'' and `H'' in the site plan and of the empty from point `F'' in the site plan all support the conclusion reached by the learned trial Court in this regard. In case it were so, it surpasses our comprehension as to how could the alleged eyewitnesss see the accused firing at victim party from inside the Dharamshala and name them in the FIR and in court as assailants. Assertions made by the prosecution witness in this regard thus get wholly negatived. Entire edifice built by the prosecution on these allegations thus collapses and tumbles down like a house of cards. Findings recorded by the learned trial Court against the prosecution and in favour of the accusedrespondents are therefore endorsed and affirmed.

In result Crl. Appeal No. 24DBA of 1985 filed by the State gets wholly bereft of any merit therein and is consequently dismissed. Crl. Revision No. 1784 of 1984 also meets the same fate.