Swaran Singh vs State of Himachal Pradesh

Bhawani Singh J.

By this appeal, accused Swaran Singh, assails the judgment of Sessions Judge, Una, in Sessions case No. 13 of 1988 whereby, vide decision dated 3-12-1988, the accused has been convicted for offences under Sections 447/307/323 of the Indian Penal Code and Sections 25 and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for seven years and to pay a j fine of Rs. 500/- in respect of offence u/s 307 of the Indian Penal Code and in default of payment of fine to undergo further rigorous imprisonment for a period of six months. For offence u/s 323 of the Indian Penal Code he has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/-and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month while u/s 447 of the Indian Penal Code, he has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/- and in default of payment of fine to undergo further rigorous imprisonment for a period of one month. The accused has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100/- and in default of payment of fine to undergo further rigorous imprison-f mint for a period of two months u/s 25 of the Indian Arms Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100/- and in default of payment of fine to undergo further rigorous imprisonment for a period of two months u/s 27 of the Indian Arms Act. However, the substantive sentences of imprisonment have been ordered to run concurrently.

The prosecution story, in brief, is that the accused is the step-brother of the complainant Karam Chand. They belong to village Basdehra in District Una. The accused, it appears, left his house about 20 years back due to the reason that the complainant failed to get him married to a girl despite having got Rs. 5000/- for the expenses and the girl was married to the brother of the accused. This enraged the accused.

On the day of the incident, he knocked at the door of the complainant at about 4 A. M. and when the complainant came out, the accused fired at him with a pistol- The complainant escaped the shot and caught hold of the accused and they I both started grappling. In this way, they came out in the \\ courtyard, followed by the inmates of the house-his wife Shakuntala (P.W. 2) and his two daughters. The accused inflicted injuries to the complainant with a brick picked up by him and injuries to Shrimati Shakuntala (P.W. 2) were also caused. He was overpowered, given beatings and tied with a rope. Large number of people gathered and the matter was reported to the police vide Ex. PA dated 28-3-1988 at 8 A.M. On completion of investigation, challan was filed against the accused for the aforesaid offences and the accused was convicted by the trial court as aforesaid.

Karam Chand (P.W. 1) is the step-brother of the accused. He states that while he was sleeping inside his house with his wife and two daughters, there was a knock at his door at about 4 A.M. He switched on the torch and saw the accused standing outside. He had seen him about 20 years ago. He was carrying a pistol, a lathe, a sword and a chakkar. He was wearing a cloak-type long and loose shirt like Nihangs and was wearing a black-blue turban. He fired at this witness with his pistol. The shot missed the complainant and it hit against the wall of his house. The complainant immediately garbed him. The accused then grappled with the witness and in the meanwhile, his wife and daughters woke up. The accused threw him on the ground in the courtyard. However, he did not lose his tightened grip of arms around his waist although he was hit with a stone on the forehead. The accused also bit his little finger. Then his wife caught hold of the accused by his hair while one of his daughters caught hold of the accused by his arm. His younger daughter tied the accused with a rope. Then they all gave beating to him. Large number of people collected there in about 10 minutes from the neighboring villages and nearby brick kilns. The pistol fell on the ground when the complainant was grappling with the accused. He went to police post, Mehat-pur, to lodge a report and while going to the police post, the police met him on the way on the road leading to Mehatpur. On his narration, the police recorded his statement Ex. PA. He and his wife were medically examined and the clothes, which they were wearing, were also taken into possession by the police vide seizure memo. Ex. PB. He states that 20 years ago, prior to the incident, the accused used to be clean shaven. He came to him and asked him to arrange some match for him. He arranged a girl for him and invited him to settle the alliance but the accused did not turn up on the fixed day. As a result, the girl was got married to the younger brother of the accused. This might be the motive for assault, this witness states. He admits in the cross-examination that while going to Mehatpur from his village through any of the two routes available, village Chhatarpur Dhada does not fall on the way. He admits that the house of Bhaga Rain, Lambardar, is at a distance of 100 yards from his house and brick-kilns at a distance of about 1 \\ furlongs besides number of houses and villages at short distance. These people came to the scene after the occurrence. He also admits that there was a cow also in the room in which he was sleeping at night. He states that he had stated to the police while giving the earliest version to them that he had lit the torch when he had opened the door. Which fact is not recorded in Ex. DA. He came to know about the present name of the accused after he was apprehended otherwise his original name was Somi. Again said, that he came to know about the present name of the accused after he was interrogated by the police at about 8 A.M. The police officer to whom he gave the statement Ex. PA, met him at about 7.30 A.M. and at that time he did not give the name of the accused as Swaran Singh. Although in Ex. PA this name does not exist, which indicates, according to the learned Counsel for the accused that his document was written after investigation by the police. Before he was brought to the hospital, he gave a supplementary statement to the police that the accused was his brother and earlier he was clean shaven and had approached him for marriage. That statement was not recorded by the police. He does not remember how many statements of his were recorded by the police. The sword and the lathe were also tying there. Blood had fallen on the ground when they received injuries and the ASI had seen the blood marks on the ground. The ASI had lifted the blood stained earth from the ground and sealed the same. He denies the suggestion that the accused had given him Rs. 5000/- for arranging the bride for him about 16 years back and that assets of the Hindu Joint Family and income from the same were utilized by him in acquiring the house in village Basdehra and the accused equally contrasted with him for the construction of house and the acquisition of the property and that one of the two rooms of the house was in occupation of the accused and the accused use# to stay m this room on his visits to the village and that the accused was falsely implicated. He states that neither he got Rs. 5000/- from the accused nor the room belongs to the accused and he also denies that he gave beatings to the accused for this purpose.

Shakuntla Devi (P.W. 2) is the wife of Karam Chand. She states that she was sleeping in a room of her house along with two daughters and at about 4 AM. Someone knocked at the door and her husband opened the same. Her husband was holding a torch. She did not know if he lit the torch because she was steeping. She heard the sound of some shot fire from some fire weapon. They woke up and after coming out, they saw the accused and her husband grappling with each other and both of them were lying on the ground. She as well as her two daughters tried to overpower the accused who punched and kicked them. The accused hit her husband on the forehead with a stone. The accused bit her fingers. He was overpowered with great .difficulty and on her asking, her younger daughter Sudesh tied.''him- with a rope so that he could not run away. The accused also got some injuries when he was overpowered. He was having pistol, a sword and a lathi. The pistol, Ex. P. 2, was lying in the courtyard when they saw the accused grappling with her husband. The police reached the spot at 6 A.M. and took their statements. Several people had Collected at the spot. A cow was also tethered in that room in which they were sleeping. She denies that the accused was staying in the adjoining room and that the same belongs to him. She also denies that a false case has been cooked up against the accused with a view to oust him from that room.

Anil Kumar (P.W. 3) is the Up-Pradhan of Gram Pan-chayat Chhatarpur. He states that a rumour had been there in the village that a Nihang had been apprehended by Karam Chand and his family members. He went to the spot along with a few others and found that the accused was lying fastened with a rope and that the police people were already there. He was unfastened by the police. Pistol was lying at the door in front of Karam Chand''s house. There was empty cartridge inside the pistol. One live cat ridge was lying on a cot which was lying in the courtyard of Karam Chand. A sword was also taken into possession from the accused. One lathe was also taken into possession from him. Accuser''s long robe (chola) was also taken into possession besides other articles. There was no cattle in the room in which Karam Chand and his family members had slept in the room on that night nor there was any cow-dung or fodder inside the room.

Shri Vinod Kumar Sharma (PW 4) is the Medical Officer who examined Shakuntla Devi (P.W.2) and found the following injuries on her person:

Bluish patch on the medical side of left 10 cm x 5 cm at the middle. Swell was present.

Abrasion with contusion 1 cm x 1/2 cm on the lateral aspect of right first metacorpal. Reddish blue in colour.

Abrasion with contusion with laceration in an area. measuring 4 cm x 4 cm. Reddish in colour. Three in Number below and two above (look like teeth bite). Swelling around the abrasion was present.

All the three injuries were simple in nature and appeared to have been caused within 24 hours with some blunt weapon. All the three injuries could have been suffered in a scuffle. Injury No. 3 could have been suffered as a result of tooth bite. Ex. PL is the medico-legal certificate which I issued after examining Shakuntla Devi.

This witness also examined Karam Chand (P.W. 1) and found the following injuries:

Lacerated wound 3 1/2 cm x 2 cm area irregular in shape with irregular margins. Dry blood was present. There was no oozing and the wound was bone deep on the fore-head and was towards the left side.

Lacerated wound 2 cm x 1/2 cm on the anterior posterior surface of distal phalanx of right little finger Swelling present Tenderness was also present. It was subcutaneous tissue deep. Dry blood was present around the wound.

Both the injuries were simple in nature and appeared to have been suffered within 24 hours. Injury No. 1 could have been suffered as a result of hitting with a stone and injury No. 2 might have been suffered by a tooth bite. The medico-legal certificate is Ex. PM which is signed by me.

The accused was also examined by this witness and four injuries were found on his person. They were as under:

Lacerated wound 3 1/2 cm x 1/4 cm in bone deep on the right side of the forehead 2 cm above the right eyebrow. No oozing was there. Dry blood present round the wound.

A lacerated wound 6 cm x 1/4 cm bones deep on the bore of left little finger at anterior lateral and posterior side. No oozing was there. Dry Blood; present around the wound.

Lacerated wound 8cm x 2 cm bone deep on the scalp. No oozing was there. Swelling was present around 6 cm above and behind was the left pine.

Lacerated'' wound 6 cm x 1/2 cm bone deep on the centre of scalp A.P. Swelling was present around the would Dry blood was also present.

All the injuries were simple in nature and appeared to have been caused with some blunt weapon within 24 hours. After examining the accused, I issued Medico legal certificate Ex. PM which is written and signed by me.

Shri Kashmir Singh (P.W. 5) is the Assistant Sub-Inspector of Police. He was posted as lncharge,. Police Post, Mehatpur, that time. He states that on 28-3-1988, Karam Chand (P.W. 1) met him in village Chhatarpur Dhada and stated that murderous assault had been made on him. He recorded statement Ex. PA and sent that statement to Police Station, Una, through Gurchain Singh, Constable, for registration of a case and himself came to the spot. He further states that on reaching the spot, he saw that the accused was laying in the courtyard of Karam Chand tied with a rope. He unfastened him. Bakhshish Singh and Anil Kumar (P.W. 3) were already present there. The pistol, with empty cartridge in it, was lying in the court-yard. The same was taken into possession. The accused was having a live cartridge, a sword, double edged, and a lathe. They were also taken into possession besides other articles including a long robe (Ex. P. 6) which the accused was wearing. Karam Chand (P.W. 1) met him in village Chhatarpur Dhada at 8 A.M. The supplementary statement (Ex. DA) was not recorded by him. It may have been recorded by the S.H.O., Shri Mohan Lal, who also investigated this case.

The defense of the accused, as appears from the trend of cross-examination of the witnesses of the prosecution and his statement u/s 313 of the Code of Criminal Procedure, appears to be that about 16 years back he and Karam Chand (P.W. 1) his step-brother had constructed two houses with equal contribution. Thereafter Karam Chand said that he would get him married provided he could give him a sum of Rs. 5000/- for being spent on the marriage. The accused gave him Rs. 5000/- but Karam Chand got his younger brother married to the lady who was supposed to be married to the accused. The complainant wants to grab his part of the house and, therefore, in order to oust him from the house and to avoid the refund of Rs. 5000/- he has been beaten and implicated in false cases.

The conclusion which can be safely and reasonably drawn from the statements of prosecution witnesses is that the accused and Karam Chand (P. W. 1) are relations. There are two houses: one belonging to Karam Chand and the other to the accused. The accused, for the reasons explained by him in his defense, has left his village; it appears in frustration, and became a Nihang (A preacher of religion in Sikhism, wearing a typical green colour long robe, a big round turban and an iron ring around it, a sword tied with a cloth around the waist and hanging from the shoulder to the side of the waist and a stick in hand; roaming from place to place). He appears to have come to his house after a long time in an entirely changed position. He does not appear to have been recognized by Karam Chand and his family and when he knocked at his door, under apprehension, they pounced upon him considering him a Nihang (people feel scared of from such type of people) and gave him beatings and tied him with a rope and hearing this apprehension of a Nihang, people came to the spot and the police was called to arrest him. But subsequently, it appears, when Karam Chand (P.W. 1) came to know during the investigation about his real identity, he put up this kind of story to exclude him once for all from his share of the property.

It can be convincingly concluded that Karam Chand (P.W. 1) is in possession of only one room in which he is sleeping along with his wife, two daughters and a cow. Had he been in occupation of the other room, there was no reason for him to live in the same room along with the cow. Naturally, he could have occupied the other room which the accused alleges to be his own and in his occupation. Explanation of the accused appears to be genuine on this aspect. It can, therefore, be safely concluded that the story of the prosecution that the accused used fire-arm-pistol, fired it at the complainant or that the same was lying in the court-yard with empty cartridge in it and one live cartridge lying on the cost of Karam Chand is utterly false and made up simply to exaggerate a small incident into a big catch of a Nihang in the prevailing situation; as this area adjoins Punjab territory.

After excluding this version of the prosecution, the other things which are left out are the other circumstances. The accused did not use his lath or his sword. He was only one and appears to have been overpowered immediately by four persons and tied like a lamb outside the court-yard where he lay till untied and arrested by the police. In this quarrel, injuries, more in number, have been sustained by the accused. In this situation, even if it is believed that the sword or the stick was lying in the court-yard, it cannot be considered something unbelievable because these things are part and. parcel of attire of a Nihang. The police also have not come up with a truthful version of the incident. It appears that the police came to the spot, investigated the case and after the catch of Nihang in the prevailing situation, it registered the First Information Report by exaggerating a small incident for which the accused cannot be blamed.

The result, therefore, is that the prosecution has not placed the true nature and cause of the incident. It has, therefore, failed to establish a case against the Appellant under any of the provisions of law and the trial court has failed to appreciate the evidence on record in a befitting manner, wrong inferences have been drawn in the absence of evidence and circumstances justifying the same. In these circumstances, the judgment is not legally sustainable in the eye of law.

The result, therefore, is, the appeal is allowed. Conviction and sentences imposed upon the accused for various offences are set-aside. The accused is ordered to be set at liberty forthwith, in case he is not wanted in any other case.