Harkirat
Singh Vs. State of Punjab [1997] INSC 617 (24 July 1997)
M.K.
MUKHERJEE, S. SAGHIR AHMAD
ACT:
HEADNOTE:
Mukherjee,
J.
The
appellant and four other were tried by the Sessions Judge, Kapurthala for
offences punishable under Section 148, 449/149, 302/149 and 307/149 I.P.C. The
trial ended in the conviction of the appellant under Sections 302 and 307
I.P.C. and acquittal of others. As the appeal preferred by the appellant before
the High Court was dismissed he has filed the instant appeal after obtaining
special leave.
2. The
prosecution case, briefly stated, is as under :
A
civil litigation was going on between Walaiti Ram and accused Narinder Singh
(since acquitted), both of whom were residents of Bholath, over a plot of land.
Pursuant to the judgment of the Civil Court Walaiti Ram obtained possession of
the land some times before the incident with which we are concerned in this
appeal. On November 28,
1996 at or about 10 A.M. when Walaiti Ram along with his brother Kharaiti
Ram, Kharaiti Lal (P.W.4) and Ajit Singh (P.W.5) was filing the foundation of
the land in question the five accused persons came there armed with deadly
weapons. The appellant was armed with a pistol and the other accused persons
with various other weapons. Reaching there Narinder Singh gave out that they
would teach a lesson for filling the foundation of the land. Immediately
thereupon the appellant fired shots which hit Kharaiti Ram, brother of Walaiti
Ram and one Gurmit Singh (P.W.3), who was then passing along the road. In self defence
some of the members of the complainant party also assaulted the accused persons
as a result of which they also sustained some injuries. After the accused persons
has left the place, Kharaiti Ram was taken to the Civil Hospital where he succumbed to his injuries.
3. To
sustain the charge levelled against the appellant the prosecution relied
principally upon the ocular version of Gurmit Singh (P.W.3), Kharaiti Lal
(P.W.4) and Ajit Singh (P.W.5). Walaiti Ram who has seen the incident and
lodged the F.I.R. could not be examined as he had died in the meantime. Of the
three eye witnesses Gurmit Singh however turned hostile. In their testimonies Kharaiti
Lal (P.W.4) and Ajit Singh (P.W.5) supported the entire prosecution case as
stated above but their cross-examination revealed that in their statements
recorded under Section 161 Cr.P.C. both of them had stated that the appellant
was armed with dang (Stick) - and not pistol - and that it was accused Raghbir
Singh (since acquitted) who was armed with a pistol and had fired as a result
of which Kharaiti Ram died and Gurmit Singh sustained injuries. Undoubtedly,
these material contradictions made the evidence of these two witnesses suspect
but still then, we find, Trial Court and the High Court relied upon their
testimonies ignoring the above material contradictions with a finding that the
investigation was perfunctory and that with the ulterior object of shielding
the real accused the statements of the above two eye witnesses were recorded
under Section 161 Cr.P.C. In drawing the above conclusion, the High Court made
the following comments:
"P.W.4
Kharaiti Lal has made his statement in the inquest proceedings and a perusal of
the same shows that he had mentioned in that statement that it was Harkirat
Singh who has fired the shots from the pistol. Even in the First Information
Report, it is clearly mentioned that Harkirat Singh had fired the shots. The
statement in the inquest report and the statement under Section 161 Cr.P.C.
were recorded on the same day, i.e., November 29, 1986. The contradiction in these two
documents shows that the investigation was not fairly conducted in this case.
It appears that an effort was made to give benefit to Harkirat Singh. We do not
attach any importance to the fact that the statement under Section 161 Cr.P.C.
shows that it was Raghbir Singh who had fired the shots." In our
considered view, the High Court was not justified in treating the statement
allegedly made by Kharaiti Ram during inquest proceedings as substantive
evidence in view of the embargo of Section 162 Cr.P.C.
Equally
unjustified was the High Court's reliance upon the contents of the F.I.R.
lodged by Walaiti Ram who, as stated earlier, could not be examined during the
trial as he had died in the meantime. The contents of the F.I.R. could have
been used for the purpose of corroborating or contradicting Walaiti Ram if he
had been examined but under no circumstances as a substantive piece of
evidence. Having regard to the facts that except the evidence of the two eye
witnesses there is no other legal evidence to connect the appellant with the
offences for which he has been found guilty and that in view of the material
contradictions the evidence of the two eye witnesses cannot be safely relied
upon the appellant is entitled to the benefit of doubt. We, therefore allow
this appeal and set aside the order of conviction and sentence recorded against
the appellant. The appellant, who is on bail, is discharged from his ball
bonds.
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