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PETITIONER: HARKIRAT SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       24/07/1997

BENCH: M.K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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

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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.