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Himachal Pradesh High Court · body

2018 DIGILAW 760 (HP)

State Of Himachal Pradesh v. Captain G. s Bhullar

2018-04-26

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J —This appeal has been filed against the acquittal of respondent vide judgment dated 4.8.2005 passed by learned Additional Chief Judicial Magistrate, Nurpur in case FIR No. 36 of 1997 dated 2.2.1997 registered at police station Nurpur under Section 304-A IPC. 2. I have heard learned Deputy Advocate General as well as learned counsel for the respondent and have also gone through the record. 3. The facts of the case, in brief, are that on 1.2.1997 at about 5.30 PM, son of PW1 Prem Singh was hit by bullet on his head near Firing Army Range, Khanni in area of P.S. Nurpur resulting into his death in the Army Hospital on 2nd Feburary, 1997 at about 5.15 AM. 4. On 2.2.2004 at 8.05 PM PW1 had lodged FIR Ext.PW1/A in police station Nurpur stating therein that on 1.2.2004, at about 5.30 PM, he was climbing on the tree, at a distance of 50 yards from Army Firing gate, and his son was standing under the tree and at that time an army officer having gun in his hand, wearing the uniform of Captain, came on the spot and fired a bullet shot hitting the head of his son Raman Kumar, whereupon on shouting of his son ''maar diya'', he came down from the tree and covered the injury with the help of cloth (sheet) and cried for help, whereupon Som Raj and Subhash Chand, working in the nearby field, came on the spot. Thereafter, he went to the Range where the Captain was standing and some army personnel were loading the vehicle. He requested them to provide the vehicle to him so as to take his son to military hospital, but the captain asked him to take his son in some private vehicle. But when complainant PW1 disclosed that he was also an ex-serviceman, one small vehicle was arranged by the captain in which the injured son of PW1 was taken to military hospital. However, the said vehicle after dropping them on the gate of military hospital, immediately returned without caring for them. PW1 admitted his son in the hospital and on that very day, at 9.30 PM the Captain came to hospital and offered money for treatment of son of PW1 in some private hospital, but PW1 had refused to accept the money. However, the said vehicle after dropping them on the gate of military hospital, immediately returned without caring for them. PW1 admitted his son in the hospital and on that very day, at 9.30 PM the Captain came to hospital and offered money for treatment of son of PW1 in some private hospital, but PW1 had refused to accept the money. At that time, he had asked the number of Regiment of the Captain. On the next day on 2.2.1997, the son of PW1 had expired at about 5.15 AM. As per FIR matter was reported to the police at 8.15 PM and said information was recorded in the daily diary reference entry No. 23 at the same time i.e. 8.15 PM and FIR was registered at the same time. 5. During investigation, post mortem of deceased was conducted. His liver, spleen, kidney, stomach, intestines, and blood were sent for chemical examination. Statements of witnesses were recorded. On completion of investigation, prima facie finding complicity of respondent in commission of offence charged, challan was presented in Court. On conclusion of trial, respondent stands acquitted. 6. Prosecution had examined 8 witnesses to prove its case, whereas respondent had not chosen to lead any evidence in defence after recording of his statement under Section 313 Cr.P.C. 7. Pw1 Pritam Singh father of victim is resident of village Hara and had eye witnessed the incident, whereas PW2 Subhash Chand had arrvied on the spot a little bit later on hearing the cries of deceased Raman Kumar and PW1 Pritam Singh. 8. Pw3 Smt. Bishno Devi Pardhan is Gram Panchayat of the area. PW5 Rakesh Kumar is witness to the seizure of clothes of deceased Raman Kumar. PW6 Parbhat Singh is Sarpanch of village Hara Tehsil Dhar Kalan, District Gurdaspur Punjab. He was associated during investigation and photographs of the spot were taken in his presence. He was approached by PW1 Pritam Chand in the morning of 2.2.1997 to inform that bullet fire shot by Captain had hit his son and his son had expired in the military hospital. 9. Pw7 had registered FIR Ext.PW1/A and had carried out investigation of the case. PW8 Major R.S.Chandel has been examined to prove existence of Firing Range of army in Chakki and issuance of letter Ext.PW8/A wherein it has been verified that respondent was officer in-charge of the firing range at the relevant point of time. 9. Pw7 had registered FIR Ext.PW1/A and had carried out investigation of the case. PW8 Major R.S.Chandel has been examined to prove existence of Firing Range of army in Chakki and issuance of letter Ext.PW8/A wherein it has been verified that respondent was officer in-charge of the firing range at the relevant point of time. PW4 Inspector Shakti Chand had also conducted partial investigation. 10. It is undisputed that place of occurrence is adjacent to the Army Firing Range Khanni and on the fateful day firing was taking place in that Range after obtaining certificate from Gram Panchayat, whereby it was assured by Gram Panchayat that inhabitants of neighbouring villages have been warned that MAG/LAG/SLR/5mm Carbine Firing will take place in the area bounded by Chakki Khanni Range from 8 am to 5 pm and on that very day, son of PW1 was hit by bullet nearby Firing Range resulting into his death. 11. To convict respondent, first instance it is necessary for the prosecution to establish on record by leading cogent, reliable and convincing evidence that deceased was injured and later on died on account of bullet fire shot by the respondent. In this regard, the only eye witness of prosecution is PW1 Pritam Singh. In FIR he has specifically stated that when he was climbing on the tree, his son was standing under the tree and an army officer wearing dress of the Captain came on the spot along with gun and fired the bullet which hit on head of his son. Whereas, while appearing in Court he has stated that he was on the tree and his son was standing under the tree and at that time, his sickle (darat) slipped from his hand and his son was handing over the said sickle to him and at that time, firing took place hitting his son on the head and when he saw in the direction wherefrom the bullet had come, he noticed the respondent standing there with 7.2 SLR gun in his hand. He was a Sikh and his rank was of the Captain. In Court, he further deposed that he went to inquire about person who had fired whereupon respondent had questioned him that how he had entered there. The said statement is contrary to the version given in FIR. He was a Sikh and his rank was of the Captain. In Court, he further deposed that he went to inquire about person who had fired whereupon respondent had questioned him that how he had entered there. The said statement is contrary to the version given in FIR. It is not a case where FIR was recorded immediately after the incident resulting into ommissions on the part of complainant to narrate the details of incident. The incident had taken place on 1.2.1997 and injured had expired on 2.2.1997 at 5 AM, whereas matter was reported to the police at 8.15 PM on 2.2.1997. Perusal of FIR indicates that minute details of incident were given qua specific role of respondent stating that respondent came on the spot and fired in presence of PW1, whereas in Court it was stated that a bullet came and hit on the head of his son, whereupon he saw towards the direction from where bullet had come and he noticed the respondent standing there with gun and thereafter he went for inquiring about person who had fired. 12. So far as PW2 is concerned, he is not an eye witness nor he has deposed anything about person who had fired. From FIR, it appears that respondent was present on spot and at that time PW2 and Som Nath had arrived at the spot, whereas in his deposition in Court, PW2 has deposed contrary to that stating therein that he did not know that who had fired and after arrival at the spot, he had noticed the injured son and his father PW1 on the spot. Therefore, evidence with regard to complicity of respondent in the alleged commission of offence i.e. firing the bullet, causing injury to son of PW1 is doubtful. The version of PW1 given in FIR becomes suspicious on account of his own deposition in Court. 13. Pw1 has not alleged any enmity with respondent nor any criminal intention or motive on the part of respondent has been established on record so as to commit the alleged crime. Rather it is case of PW1 that though respondent had refused to provide vehicle to take the injured son to military hospital initially, but within no time, he had agreed and also provided the vehicle when he disclosed that he was an ex-serviceman. 14. Rather it is case of PW1 that though respondent had refused to provide vehicle to take the injured son to military hospital initially, but within no time, he had agreed and also provided the vehicle when he disclosed that he was an ex-serviceman. 14. So far as offering of money by respondent is concerned, that is not corroborated by any other evidence on record, but even if the same is taken to be correct, it cannot be made basis to draw inference that it was respondent who had fired the bullet. It is also established on record in statement of PW8 R.S.Chandel that respondent was officer in-charge of Firing Range. It is a natural conduct on the part of officer in-charge to offer money for treatment of a injured in his Firing Range so as to avoid untoward result of incident. As an officer in-charge of the Firing Range, he may be liable for liability under tort, but his position as an incharge of the Firing Range cannot be made basis for his conviction in criminal case where there is no cogent, reliable and convincing evidence to establish that bullet was fired by respondent only or his instance or there was gross negligence on his part, rather it has come in evidence that on the relevant day firing exercise was in progress. Therefore, learned trial Court after considering the entire evidence on record has rightly arrived at conclusion that present case is a case of accident as provided under Section 80 IPC for which respondent cannot be held guilty resulting into his conviction. 15. It has also come in evidence of PW5 who is resident of village of PW1 that residents of his village used to go to Firing Range to collect metal lead. But PW6 had deposed contrary to that. Be that as it may, it is not relevant for deciding the question of guilt of respondent that for what reasons PW1 and his son were present at the spot. The question would have arisen for consideration only after establishment of the fact that son of PW1 had been injured by bullet fired by respondent. Rest of evidence including statements of Investigating Officer PW4 Shakti Chand and PW7 Jodha Mal are not relevant to be discussed in view of above discussion. 16. Respondent has also having advantage of being acquitted by the trial Court. Rest of evidence including statements of Investigating Officer PW4 Shakti Chand and PW7 Jodha Mal are not relevant to be discussed in view of above discussion. 16. Respondent has also having advantage of being acquitted by the trial Court. As discussed above, it cannot be said that the trial Court has not appreciated the evidence on record completely and correctly and that acquittal of respondent has resulted into miscarriage or travesty of justice. Therefore, no ground for interference is made out and accordingly appeal is dismissed. 17. Bail bonds furnished by and on behalf of respondent are discharged. Record received, be sent back.