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2010 DIGILAW 3106 (PNJ)

Gulzar Chand v. State of Punjab

2010-11-18

M.JEYAPAUL

body2010
JUDGMENT Mr. M. Jeyapaul, J.: - The first accused, who was charge sheeted alongwith two other accused for offence under Section 304 Part-II of the Indian Penal Code was convicted and was thereunder sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.5000/- and in default to undergo further rigorous imprisonment for a period of three months. Hence the appeal has been preferred by the first accused. 2. The case of the prosecution as unfolded by the witnesses examined on its side is as follows:- 3. During the midnight of 14.03.1997 Ajit Singh, PW-2, his wife Ram Piari, PW-4 and his son Kashmir Singh (since deceased) were sleeping in their house at village Pandori Rukman. At about 12 persons, some in police uniforms and some others in simple clothes parged into their house and one of the persons in simple clothes caught hold Ajit Singh, PW-2 by his neck. On such act of those persons, Kashmir Singh,(since deceased) woke up and enquired as to why he caught hold of his father. One person caught hold of Kashmir Singh and fired a shot. Ajit Singh, PW-2 and his son Kashmir were dragged to the van and their faces were muffled. Ajit Singh, PW-2 was thrown out near the sheller of Jalandhar Road at village Hazara. Kashmir Singh was taken away by them. Having come to know of the occurrence, Harbhajan Singh, PW-3 , the Sarpanch of the village, made a call to the police and the police reached at the spot. Later on Ajit Singh, PW-2 came to know that his son Kashmir Singh was murdered by the Tarn Taran Police. Ajit Singh, PW-2, proceeded to the Police Station on the next day at about 10.00 AM and lodged the first information report with the Inspector Manjit Singh, Station House Officer, PW-25. 4. Manjit Singh, Inspector, PW-25, the Investigating Officer during the course of investigation, recovered 2 empty cartridges measuring 9 mm vide memo Ex.PF. Blood stained earth was also taken into possession. 9 mm Pistol alongwith 10 live cartridges was produced by Didar Singh, Inspector. Another pistol of 9 mm alongwith 9 live cartridges was also produced by Rameshwar Singh, Assistant Sub Inspector, which were also taken into possession vide memo Ex.PU. Postmortem examination on the dead body of Kashmir Singh was conducted by a team of doctor, headed by Dr. Bhupinder Singh, SMO, PW-1. Another pistol of 9 mm alongwith 9 live cartridges was also produced by Rameshwar Singh, Assistant Sub Inspector, which were also taken into possession vide memo Ex.PU. Postmortem examination on the dead body of Kashmir Singh was conducted by a team of doctor, headed by Dr. Bhupinder Singh, SMO, PW-1. As many as 18 lacerated wounds, incised wounds and abrasions were found on the dead body of Kashmir Singh. It is his opinion that the deceased would have died due to hemorrhage and shock, as a result of injury Nos.1 to 4, 12 and 13. Manjit Singh, Inspector, PW-25 having completed investigation, filed final report against all the three accused namely Gulzar Chand, Rameshwar Singh and Harvinder Singh. 5. In the examination under Section 313 of the Code of Criminal Procedure, the first accused, who is the appellant herein has contended that a false case was foisted on him. He went alongwith the police officials to the house of the deceased Kashmir Singh. The moment he alongwith the police officials knocked the door, Kashmir Singh opened the door and he started attacking the police party armed with kirpan. In defence, the first accused and his colleagues used their weapons. 6. On the side of the accused, three witnesses were examined. Dr. Tej Pal, Medical Officer, DW-3,who examined all the three accused, has deposed that all of them had sustained lacerated injuries. 7. The trial Court having totally disbelieved the evidence of PW-4, the mother of the deceased, placed reliance upon the earlier first information reports Ex.PL and Ex.PV, lodged by the first accused, the statement given by the first accused under Section 313 of the Code of Criminal Procedure and the sanction order passed by the State Government and convicted the first accused alone under Section 304 Part-II of the Indian Penal Code. The other two accused were relieved of the charge under Section 302 read with Section 34 of the Indian Penal Code on the ground that no material was available to rope them under the aforesaid provisions of law. 8. The appellant Gulzar Chand having filed the present appeal, died on 10.02.2007. The other two accused were relieved of the charge under Section 302 read with Section 34 of the Indian Penal Code on the ground that no material was available to rope them under the aforesaid provisions of law. 8. The appellant Gulzar Chand having filed the present appeal, died on 10.02.2007. The legal representatives of Gulzar Chand, have come on record to pursue the appeal as per the order passed by this Court, in as much as they were threatened with deprivation of the service and the pensionary benefits of the deceased Gulzar Chand, who served as Sub Inspector in Police. 9. The learned Counsel appearing for the appellant would submit that the trial Court has propounded a new story from that of the one projected by the prosecution. The material witnesses namely Ajit Singh, PW-2 and Harbhajan Singh, PW-3 could not identify the first accused. The trial Court has rightly disbelieved the evidence of PW-4, who had come out with the identification of the accused quite against her version before the Police. It is his further submission that the trial Court quite unfortunately relied upon the first information reports lodged by the appellant herein alongwith his statement given under Section 313 of the Code of Criminal Procedure and the sanction order issued by the Government of Punjab to prosecute the appellant to convict him for the offence under Section 304 Part II of the Indian Penal Code. As per the defence set up by the appellant herein, it was only the second and third accused, who opened fire and caused injuries on the person of Kashmir Singh, but the trial Court conveniently omitted such a version of the appellant and relied upon the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure that he also opened fire in self defence. Therefore, it is his submission that the trial Court has fallen in error in the matter of appreciation of evidence on record. 10. Therefore, it is his submission that the trial Court has fallen in error in the matter of appreciation of evidence on record. 10. I also heard the submission made by the learned Deputy Advocate General, appearing for the State, it is his submission that the first information reports lodged by the first accused and the self defence set up by him in his statement recorded under Section 313 of the Code of Criminal Procedure in the back ground of the sanction order issued by the Government of Punjab would establish beyond reasonable doubt that he caused the death of Kashmir Singh. Therefore, it is his submission that the judgment of the trial Court does not warrant interference. 11. On a thorough perusal of the testimony of Ajit Singh, PW-2, the father of the deceased and PW-3, the Sarpanch of the village, it is found that they could not specifically identify the first accused as that of the person, who authored the crime. Therefore, their evidence could be of no avail as regards the role of the appellant, herein, in the offence charged against him. 12. The trial Court was pleased to reject the testimony of PW-4, who is none other than the mother of Kashmir Singh. Her testimony was rightly rejected by the trial court as she has come out with a totally different version as if she was very much acquainted with the names of the accused in this case, quite against the spirit of her statement under Section 161 of the Code of Criminal Procedure. Therefore the evidence of PW-4 also cannot be safely relied upon by the Court of law. 13. It is a well settled principle of law that the first information report is not a substantive piece of evidence, it can only be used for the purpose of corroboration of the statement of the maker as per Section 157 of the Indian Evidence Act. The same also can be used for the purpose of contradiction under Section 145 of the Indian Evidence Act. But the first information report cannot be used against the maker thereof, if he happens to be an accused in a case. 14. Of course the first information report in the current case has been given by PW-2 against the appellant and two other accused. But the first information report cannot be used against the maker thereof, if he happens to be an accused in a case. 14. Of course the first information report in the current case has been given by PW-2 against the appellant and two other accused. Ex.PL and Ex.PV, the information reports, which originated earlier in point of time had been lodged by the first accused, relating to previous occurrences. In my considered opinion even though those first information reports relate to earlier incidents, the content of the same cannot be used by the Court of law as it reflects incrimination against the appellant herein. Therefore Ex.PL and Ex.PV cannot be used against the appellant herein. But quite unfortunately the trial Court heavily relied upon those material to rope in the appellant herein for offence under Section 304 Part II of the Indian Penal Code. 15. Coming to the statement under Section 313 of the Code of Criminal Procedure given by the appellant before the trial Court, it is found that the appellant has set up a plea that in self defence he and other police officials, who were present, had unfortunately opened fire, as they were at the receiving hands. It is to be noted that the appellant had not specifically disclosed in his statement under Section 313 of the Code of Criminal Procedure that he aimed at Kashmir Singh deceased and short at him. He had simply stated that he opened fire in defence. Admittedly there had been commotion in the house of PW-2. The deceased had sustained as many as six vital injuries on his person, which led to his death. Simply taking inspiration from the solitary statement given by the appellant under Section 313 of the Code of Criminal Procedure, the appellant cannot be roped in for the offence under Section 304 Part II of the Indian Penal Code for causing the death of Kashmir Singh. Even if the statement of appellant under Section 313 of the Code of Criminal Procedure is taken into consideration, it does not establish beyond reasonable doubt that it was the appellant, who authored the death of Kashmir Singh. 16. Sanction order has been issued by the Government of Punjab only to prosecute the first accused in this case, of course taking into account the prima facie material available on record. 16. Sanction order has been issued by the Government of Punjab only to prosecute the first accused in this case, of course taking into account the prima facie material available on record. The material projected before the trial Court during the course of trial were found not sufficient to establish the case of the prosecution to convict the appellant under Section 304 Part II of the Indian Penal Code and in such circumstance, the primafacie assessment made by the sanctioning authority cannot be a material basis to convict the first accused. 17. In view of the facts and circumstances, I find that the trial Court has fallen in error in the matter of appreciation of the evidence on record. Holding that the prosecution has failed to establish the case under Section 304 Part II of the Indian Penal Code against the appellant, he is acquitted of the said offence. The bail bond executed by him shall stand annulled. Consequently the appeal is allowed setting aside the judgment of conviction recorded and sentence imposed on the appellant-accused. -------------------