State of Punjab vs Nachhattar Singh and ors.

A.P. Chowdhry, J.—Criminal Appeal No. 227DBA of 1985, Criminal Appeal No. 25SB of 1985 and Criminal Revision No. 312 of 1985 are directed against the judgment of the learned Additional Sessions Judge, Bhatinda dated 19th December, 1984. The learned Additional Sessions Judge convicted Nachhattar Singh under Section 326, Indian Penal Code, Jagrup Singh and Atma Singh son of Gajjan Singh under Section 326 with the aid of Section 34, Indian Penal Code but acquitted Atma Singh son of Nihal Singh accused. Each of the three convicted accused were sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. 1000/.each. In default of payment of fine the defaulting accused was further sentenced to rigorous'' imprisonment for six months. Out of the fire imposed Rs. 2000/ were directed to be paid to Karnail Singh, injured, as compensation. The accused were acquitted under Section 307/34 I.P.C. Criminal Appeal No. 25SB of 1985 has been filed by the convicted accused. Criminal Appeal No. 227DBA of 4985 has been filed by the State against acquittal under Section 307/34 I.P.C. Criminal Revision No. 312 of 1985 has been filed by Gurtej Singh son of Karnail Singh for enhancement of sentence imposed on the three accused and for awarding the injured a substantial compensation.

The prosecution version is that on 11121981 Karnail Singh P.W. 4 alongwith his son, Gurtej Singh P.W. 3 and Jarnail Singh, his soninlaw, of village Burj Harike travelled from village Maur Kalan to Bhatinda. Karnail Singh came to the court complex to consult a lawyer in connection with a case relating to Khalsa High School, Maur of which he was the Vice President. Jarnail Singh of Burj Harike who is his soninlaw met Karnail Singh and Gurtej Singh the bus and they travelled to Bhatinda together They met Jarnail Singh of Gobindpur in the court complex Gurtej Singh and his brotherinlaw Jarnail Singh of Burj Harike went towards the court compound while Karnail Singh, P.W. 4 and Jarnail Singh of village Gobindpura proceeded towards the staircase which leads to the Court of Second Additional District Judge, Bhatinda. All the four accused were present there. Jagrup Singh, Atma Singh son of Gajjan Singh and Nachhattar Singh were armed With Kirpans while Atma Singh son of Nihal Singh was empty handed. Jagrup Singh raised a Lalkara urging his companions to finish Karnail Singh and teach him a lesson for getting him sentenced to imprisonment. Jagrup Singh then gave a Kirpan blow on the head of Karnail Singh, P.W.4. This was followed by Atma Singh son of Gajjan Singh giving a Kirpan blow on the head of Karnail Singh. Nachhattar Singh accused gave a Kirpan blow on the tight arm of Karnail Singh, Atma Singh son of Nihal Singh took our 12 bore pistol from his club and fired at Karnail Singh. Karnail Singh, however, had a providential escape. Only some of the pellets, pierced through the shoulder of his coat. Karnail Singh fell down and when he was lying in the verandah of the court, Jagrup Singh Nachhattar Singh and Atma Singh son of Gajjan Singh gave Kirpan blows on his left ear, right knee, right thumb, fingers of left hand etc. Karnail Singh raised an alarm which was respondent by his son Gurtej Singh and his soninlaw Jarnail Singh. They told Karnail Singh to be brave and that they were coming. At this, the accused persons fled away with their respective weapons. A.S.I. Dina Nath and Constable Resham Singh who were on duty in the court complex saw Atma Singh son of Nihal Singh and Nachhattar Singh accused running away towards the Texi Stand. Jarnail Singh of Burj Harike P.W. joined them and they chased the accused and apprehended them near the Local Bus Stand. A.S.I. Dina Nath, recovered bloodstained Kirpan, Exhibit P. 23 from Nachhattar Singh. It was made into a sealed parcel vide Exhibit PL/I after preparing the outline Exhibit PL. Country made 12 bore pistol with two live cartridges Exhibits P. 21 and P. 22 of the samebore were also recovered from Atma Singh son of Nihal Singh. Outline sketch of the pistol was prepared and a separate case under Section 25 of the Arms Act was got registered against Atma Singh son of Nihal Singh.

Karnail Singh, injured was lifted from the place of occurrence by his son Gurtej Singh P.W. 3 and jarnail Singh of Gobindpura and he was put on the ear of Shri Udey Partap Singh, Advocate, Gurtej Singh went to near by Police Post and made a statement FE to S.I. Sewak Ram at 220 P.M. S.I. Sewak Ram made his endorsement Exhibit PE/1 and on the basis of the said statement First Information Report Exhibit PE/2 was entered at Police Station Bhatinda Cantt. at 250. P.M. Shri Uday Partap Singh, Advocate and Shri Nardev Singh, Advocate, besides, Jarnail Singh of Gobindpura accompanied the injured Karnail Singh to the Civil Hospital, Bhatinda.

Dr. Khem Raj Bansal examined Karnail Singh and prepared Medico Legal Report Exhibit PA. S.I. Sewak Ram went to the spot and he recovered bloodstained earth, pellets, wads and one empty cartridge case and prepared a site plan Exhibit P.M. Nachhattar Singh and Atma Singh son of Gajjan Singh, who had been apprehended by A.S.I. Dina Nath, were produced before S.I. Sewak Ram when he was in the Civil Hospital in connection with the investigation of this case. They were arrested.

The motive for the occurrence, according to the Prosecution, was that on 17.5.1979, Malkiat Singh and Bikker Singh, brothers of the wife of Jagrup Singh accused herein, were murdered. Karnail Singh along with his sons Baldev Singh, Gurtej Singh and Gursewak Singh were tried for those murders. Except Baldev Singh others including Karnail Singh and Gurtej Singh were acquitted. In another case, Jagrup Singh Atma Singh son of Gajjan Singh, Nachhattar Singh alongwith two others were tried under Section 307, Indian Penal Code for assaulting Sukhdev Singh, Madan Singh and Nathu Singh relating to another incident of 7.1.1980 Jagrup Singh, Gajjan Singh and Nachhattar Singh who are also accused in this case were convicted and sentenced to three years rigorous imprisonment a few days prior to this occurrence. Atma Singh son of Gajjan Singh and Nachhattar Singh are like brothers of the wife of Jagrup Singh while Atma Singh son of Nihal Singh was the maternal cousin of Jagrup Singh. The grievance was that whereas in the case relating to the occurrence of 17.5.1979 Karnail Singh and two of his sons had been acquitted, in the other case relating to the occurrence of 7.1.1980, Jagrup Singh, Atma Singh, Gajjan Singh and Nachhattar Singh had been convicted and sentenced to imprisonment.

Jagrup Singh and Atma Singh son of Gajjan Singh were got discharged from the court on the basis of further investigation carried out by Inspector Mohkam Singh, D. S. P. Santa Singh and S. P. (Detective) Sukhdial Singh Bhullar. The police presented a challan against Nachhattar Singh and Atma Singh s/o Nihal Singh. After recording some. evidence and on the basis of an application by the complainants Jagrup Singh and Atma Singh son of Nihal Singh were also summoned and tried with the remaining accused. The learned trial Judge held that the plea of alibi of Jagrup Singh and Atma Singh s/o Gajjan Singh was not substantiated. It was further held that Atma Singh son of Nihal Singh did not fire at Karnail Singh with the intention to kill and he did not share common intention with the remaining accused. Nachhattar Singh was substantively convicted under Section 326, Indian Penal Code and Atma Singh son of Gajjan Singh and Jagrup Singh were convicted under Section 326 read with Section 34, Indian Penal Code for causing grievous injuries to Karnail Singh, appellant, Atma Singh son of Nihal Singh was acquitted,

The contention of the learned counsel for the appellants is that Gurtej Singh was not present at the time of occurrence and he had been introduced as a false eyewitness. The learned counsel adduced the following arguments in support of his contention. Gurtej Singh, PW did not accompany his father to the hospital inasmuch as his presence was not noted in the MedicoLegal Report prepared by Dr. Khem Raj Bansal, P.W.5. The story of lodging the report with the Police Post, Civil Station Bhatinda within 20 minutes of the occurrence was too good to be believed. In fact, what appears to have happened is that Gurlej Singh, P.W. was called some times later from village Maur, Kalan and introduced as a false eyewitness and the report was antetimed. This argument is based largely on the fact that the copy of the First Information Report reached the learned Judicial Magistrate stationed locally on the following day at 1000 A.M. The conduct of Gurtej Singh in not chasing the accusedpersons when they fled away from the place of occurrence was described as utterly unnatural and rendered his presence open to serious doubt. It was also pointed out that Gurtej Singh had no compelling reasons to accompany his father who is said to have gone to consult a lawyer about some case. It was also pointed out that Gurtej Singh and Karnail Singh gave different reasons for the visit. Gurtej Singh also failed to physically intervene to save his father from the assault and lastly even according to the prosecution no attempt was made by the accused persons or any of them to harm Gurtej Singh even though he was an arch enemy of Nachhattar Singh etc. We have given out anxious consideration to the submissions of the learned counsel and we find that the arguments can be explained and they do not render the presence of Gurtej Singh at the place of occurrence in the least doubtful.

Karnail Singh injured was taken to the hospital in the car of Sh. Udey Partap Singh Advocate. He was accompanied by another lawyer Shri Nardev Singh. Jarnail Singh of Gobindpura also accompanied them. With these three persons taking care of the injured in rushing him to the hospital, it was not necessary for Gurtej Singh to have accompanied his injured father. The Police Post is situated near the Court Complex and there was no difficulty for Gurtej Singh going and making the report there. There was no reason for the police to have antetimed the report. According to the prosecution version Gurtej Singh and Jarnail Singh of Burj Harike had gone towards the court compound while Karnail Singh and Jarnail Singh of V. Gobindpura proceeded towards the staircase leading to the court of Second Additional District. Judge and Gurtej Singh was thus not present near his father so that either he could physically intervene or chase the accused persons. The occurrence did not last for long. This also explains that the accused did not attempt to harm Gurtej Singh. It has to be remembered that Maur Kalan is 35 kilometers away from the place of occurrence and the presence of Gurtej Singh could not be secured in 15/20 minutes.The reason for visit to Bhatinda given by Gurtej Singh on the one hand and Karnail Singh on the other hand are not mutually exclusive. There can beseveral reasons for a person to pay a visit to a certain place. While one reason was given by Gurtej Singh, another reason was mentioned by Karnail Singh. It was further argued that the prosecution had withheld Jarnail Singh of Gobindpura and two Advocates named above and they were the only independent witnesses available in this case. The evidence of Gurtej Singh and Karnail Singh cannot be doubted merely on the ground that Jarnail Singh of Gobindpura had not been examined by the prosecution, the two lawyers having reached the spot after the occurrence. The duty of the court is to evaluate the evidence produced before it and not to speculate about the evidence which has not been produced but which could be produced in the court. In State of U.P. v. Suresh alias Chhavan and others. A.I.R. 1982 S.C. 1076,dealing with a similar situation it was observed "the question is not whether the prosecution should have examined some other persons, who were present at the time of the occurrence, but it is whether the evidence of P.Ws. 1, 5 and 6, who have been put forward as eyewitnesses is acceptable or not for proving the case of the prosecution against the accused."

Nonproduction of Jarnail Singh of Gobindpura is thus an infirmity in the prosecution case.

The next important question arising for consideration is whether Karnail Singh was fired at. The learned trial Judge came to the conclusion that this part of the prosecution story was not free from doubt and could not, therefore, be accepted. We have carefully examined the evidence bearing on this part of the case. Dr. Khem Raj Bansal, P.W. 5 took into possession Coat Exh. P. 1, Sweater Exh. P. 2, Turban Exh. P. 3, Payajama Exh. P. 4, Shirt Exh. P. 5 and Banyan Exh. P. 6 from the person of Karnail Singh injured at the time of his examination. These were handed over to the Police and were produced as evidence in this case. Dr. Bansal, P.W. 5 described the damage found on the coat as follows :

"There is hole measuring 3cm x 3cm on the back of the left shoulder of the coat Exh. P. 1, which has been circled by me and initialled when it was removed. There is a tear measuring 61/2 cms. x O.3 cm on the upper portion of the left shoulder of the coat Exh. P.1 on the back. There is `U'' shape tear on the left upper arm of the coat Exh. P. 1 measuring about 31/2 cm. x 4 cm. x 0.3 cm. There are three rounded holes measuring about 0.7 c. x O.5 m, 0.7 cm. x 0.5 cm. and 0.5.cm. x O.3 cm. There are two rounded holes measuring about 0.25 cm. on the back of the coat Exh. P. 1, one of them is on the back of the coat near the collar of the neck and another is on the right side of midline on the back of the coat Exh. P. 1 in the upper portion. All these holes and tears have been circled by me and initialled at the time of its removal from the person injured.

At the same time Dr. Bansal, P.W. 5, stated that there was no injury found on the person of Karnail Singh corresponding to the holes and tears of the coat mentioned above. From the details furnished by Dr. Bansal, P.W. 3 it is apparent that apart from others there was a hole near the collar of the neck and on the right side of midline on the back of the coat in the upper portion. He did not find any hole either in the sweater, shirt or banyan corresponding to these holes. Admittedly, there was no corresponding injury on the person of Karnail Singh. Whatever may be the angle from which the shot was fired, we cannot conceive of a situation in which the pellet would make a hole on the backside of the coat without causing a corresponding hole in the sweater, shirt or banyan or causing an injury to the person corresponding to the hole. The existence of holes in the coat, therefore, does not justify the conclusion that Karnail Singh was wearing the coat when he was fired at.

According to the prosecution an empty cartridge case was recovered from near the place of occurrence. This implies that the accused Atma Singh son of Nachhattar Singh reloaded the pistol. Reloading, of the pistol, however, stands belied by the prosecution case that at the time of the recovery pistol was found empty though Atma Singh son of Nihal Singh was found carrying two live cartridges of the same bore. Recovery of empty cartridge case from near the place of occurrence is thus rendered open to serious doubt. It was next argued that all the sharpedged injuries found on the person of Karnail Singh were possible with a singlesharp edged weapon and it was, therefore, quite possible that the P.Ws. had falsely implicated some innocent persons. It has been pointed out above that the incident was over in a short time but the number of injuries found on the person of Karnail Singh were ten in number and the nature of the injuries is thus quite consistent with the prosecution version that Karnail Singh was injured by the three accused persons with sharpedged weapons.

The story of Atma Singh son of Nihal Singh having fired at Karnail Singh was disbelieved by the learned trial Court and we find that the view taken by the learned trial Court resulting in the acquittal of Atma Singh son of Nihal Singh is not unreasonable. Atma Singh son of Nihal Singh is not shown to be either inimical towards Karnail Singh or interested in the accused. Moreover, on account of absence of damage to the undergarments and corresponding injuries on the person of Karnail Singh, insofar as pellet injuries are concerned, our conclusion is that Karnail Singh was not fired at. We, therefore, conclude that there is no case for interference in the acquittal of Atma Singh son of Nihal Singh.

The story of a shot having been fired at Karnail Singh having been disbelieved, a consideration of the remaining facts disclosed an offence under Section 326, Indian Penal Code. No offence is made out under Section 307, Indian Penal Code.

For the reasons discussed above, both the appeals as well as the Criminal Revision are dismissed. The appellants shall surrender to their bail bonds to undergo the remaining sentences.