Diwan Singh v. State of Punjab

scooter, they started firing at the police party with an intention to kill. Police officials also started firing with their respective weapons in self defence. Firing continued for about 5 minutes. Then the said two persons surrendered before the police. On enquiry, one of them disclosed his name as Talwinder Singh and the other as Diwan Singh. On search of Talwinder Singh by ASI Surinder Kumar, .38 bore revolver was recovered. After unloading, two empty cartridges and one live cartridge were recovered. On search of Diwan Singh by ASI Ranjit Singh, one .12 bore country made pistol was recovered. After unloading the same, one empty cartridge was recovered. Two live cartridges were also recovered from him. Regarding recovery of weapons, separate proceedings were initiated. Scooter No.PAE 5385 was taken into police possession vide separate memo attested by the witnesses. Empties recovered from the spot were also taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in Court. Accused were charged under Sections 307/34 IPC, to which they pleaded not guilty and claimed trial. After charge, Talwinder Singh absented and ultimately he was declared as proclaimed offender vide order dated 4.3.2007. In order to substantiate its case, prosecution examined PW1 SI Gajinder Singh, PW2 Satpal Behal, PW3 Surinder Kaur, Assistant, and PW4 ASI Ranjit Singh. After close of the prosecution evidence, statement of accused Crl.Appeal No.1207-SB of 1999 3 was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that he was falsely implicated in this case. He was illegally detained at the police station. His mother has given applications/telegrams to the higher authorities about his illegal detention. When police came to know about telegrams/applications, then he was falsely implicated in this case. In defence, DW1 Surinder Kumar, Senior Assistant, DC Office, Amritsar, appeared and stated that as per entry of register dated 15.2.1994, one Bachan Kaur gave a telegram that her son Diwan Singh was arrested by the police of Putlighar on 11.2.1994 at 8.00 PM. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned counsel for the appellant argued that appellant was illegally detained by the police of PS, Putlighar, Amritsar, on 11.2.1994 at about 8.00 PM. Mother of the appellant had given telegram to higher authorities and this fact is clear from the statement of DW1 Surinder Kumar. According to story, police party had surrounded Company Bagh, Amritsar, then sighted two persons while coming on a scooter from the side of Service Club, one of them was the present appellant and the other was Talwinder Singh. There was a firing from both the sides but no one was injured. Empties were also lifted from the spot but same were not sent to the laboratory to report as to whether same were fired from the weapons Crl.Appeal No.1207-SB of 1999 4 recovered from the appellant and his co-accused Talwinder Singh. If appellant had intention to eliminate the police officials, then he could easily hit any of the police officials but no one was injured. Occurrence was on the intervening night of 18/19.2.1994 and if police party had also fired in self defence, then documentary proof could easily be produced as to how many cartridges were supplied to which official and how many shots were fired. Failure to send empties to the laboratory for report as to whether same were fired from the weapons recovered from the appellant and his co- accused and how many shots were fired by the police officials in defence, story becomes doubtful. Possibility of illegal detention of appellant on

11.2.1994 at about 8.00 PM cannot be ruled out. Learned State counsel argued that on 11.2.1994, appellant along with his co-accused had snatched Scooter No. PAE 5385 from one Brij Mohan. No explanation by the appellant as to how he came in possession of above said scooter. If scooter was not snatched from Brij Mohan, then he could easily be produced in defence. Nothing on the file that any empty fired from the weapon recovered from the appellant was lifted from the spot. If police had the intention to implicate the appellant, then empty recovered after unloading the weapon could easily be shown as recovered from the spot. Before present occurrence, no case was pending against the appellant. Police party was not inimical towards the appellant. Without enmity, there was no idea to name the appellant. In fact, on

11.2.1994, appellant along with his co-accused made an effort to loot the petrol pump of one Sushil Kumar. After leaving the scooter at the petrol pump, appellant had gone towards the side of Company Bagh. Near Company Bagh, scooter in question was snatched from Brij Mohan. Brij Crl.Appeal No.1207-SB of 1999 5 Mohan had reported the matter to the police. After 11.2.1994, appellant was suspecting that he was to be arrested at any stage. To create defence, telegram was sent to the higher authorities on 15.2.1994 on the allegation that appellant was brought to the police station by the police of PS, Putlighar, on 11.2.1994. Present case was not registered by the police of PS, Putlighar. There was a firing from the side of appellant. Police party after taking position had also fired in self defence. Fortunately, no one had injured in the incident. If no one was injured in the occurrence, then story is not to be ignored. After going through the evidence on the file, I am of the opinion that submission of learned State counsel seems to be reasonable one. On 11.2.1994, appellant along with Talwinder Singh had attempted to loot the petrol pump of Sushil Kumar. They were on Scooter No. PB-02-F, Make Bajaj Chetak. When appellant and his co-accused were identified by Sushil Kumar, then by leaving the scooter at the petrol pump, they had fled away from the spot. On hearing noise of firing from the side of Dental Hospital Chowk, police party headed by ASI Surinder Kumar had gone towards the side of Dental Hospital Chowk. Statement of Sushil Kumar was recorded. In the meantime, Brij Mohan came and reported to the police that his scooter No.PAE 5385 was snatched by two persons and after snatching the scooter, they had gone towards the side of Batala Road. On 18.2.1994, police party headed by SI Gajinder Singh received secret information that some suspected persons were moving in the Company Bagh, Amritsar. On receipt of secret information, police officials surrounded Company Bagh, then sighted two persons while coming on a scooter from the side of Service Club. They were signalled to stop. After Crl.Appeal No.1207-SB of 1999 6 throwing the scooter, they started firing at the police party. Luckily, no one had injured in the occurrence. Scooter No.PAE 5385 was recovered from the spot. Scooter was of Brij Mohan. No explanation from the side of the appellant how he came in possession of that scooter. If occurrence was not genuine, then Brij Mohan could easily be produced in defence to state that his scooter No.PAE 5385 was not snatched by any body on 11.2.1994. In the present case, Brij Mohan was not the eye witness. So, due to non-appearance of Brij Mohan, story was not to be ignored because by appearing in Court, Brij Mohan was expected to state that on 11.2.1994, near Company Bagh his scooter was snatched by two assailants. Brij Mohan had not named the assailants when reported the matter to the police on 11.2.1994. For about 5 minutes, there was firing from both the sides. Empties were recovered from the spot but if due to the negligence of the IO, empties were not sent to the laboratory to report as to whether empties were fired from the weapon recovered from the appellant, then story is not to be ignored. Two police officials, namely, SI Gajinder Singh and ASI Ranjit Singh appeared in Court and stated that as per secret information, police party had surrounded Company Bagh, then sighted two persons while coming on a scooter from the side of Service Club. They were signalled to stop. After throwing the scooter, they started firing at police party. Appellant was arrested at the spot. One country made pistol along with one empty and two live cartridges was recovered from the appellant. As discussed earlier, occurrence was at about 10.45 PM. Ruqa was sent at 12.15 during night time. No independent witness was present when there was a firing from both sides. So, there was no reason to join Crl.Appeal No.1207-SB of 1999 7 independent witness. Empties were also lifted from the spot but if due to the negligence of the IO, empties were not sent to the laboratory to report as to whether empties were fired from the weapon recovered from the appellant, then story is not to be ignored. If story was to be concocted, then empty recovered from unloading the weapon could easily be shown as recovered from the spot. Two live cartridges were also recovered from the appellant. Earlier to the occurrence, police party had no enmity with the appellant. So, there was no idea to name the appellant. On 11.2.1994, appellant along with his co-accused attempted to loot the petrol pump of Sushil Kumar. In view of the statement of Sushil Kumar, FIR was registered. When statement of Sushil Kumar was being recorded, then Brij Mohan also came there and reported to the police that his scooter was snatched by two assailants and after that, they had gone towards the side of Batala Road. Brij Mohan had not named the appellant. After the occurrence dated 11.2.1994, appellant was suspecting that he was to be arrested by the police at any stage. To create defence, one telegram was got sent through his mother on 15.2.1994. Mother of the appellant did not appear in defence to state that appellant was brought to the police station by the police of PS, Putlighar, on 11.2.1994 at about 8.00 PM. After that, she had sent telegrams to different authorities. Suppose as per DW1 Surinder Kumar, telegram was sent by the mother of the appellant, then in view of telegram, story is not to be ignored because after the occurrence dated 11.2.1994, when appellant was apprehending arrest by the police, then telegram was got sent through his mother to create defence. Learned defence counsel for the appellant argued that as per Crl.Appeal No.1207-SB of 1999 8 farad sanakhat (identification), date of arrest of the appellant is 11.2.1994 but document on the file was not put to the witnesses. If appellant was arrested on 11.2.1994, then farad sanakhat (identification) could easily be put to the IO that appellant was arrested on 11.2.1994 and not on the intervening night of 18/19.2.1994. First occurrence was dated 11.2.1994. So, possibility of mentioning the date 11.2.1994 instead of 18.2.1994 cannot be ruled out. Something could be said if document in question would have been put to the IO to explain about the date of arrest of the appellant. No other submission was put forward. Admittedly, occurrence is dated 11.2.1994 and at that time, appellant was 28 years’ old. He belongs to a poor family and has three children to support. Already he remained in custody for some time. In the light of above discussion, I am of the opinion that there is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld. Keeping in view the circumstances of this case, instead of directing the appellant to undergo imprisonment as ordered by the trial Court, he is directed to undergo RI for one year under Sections 307/34 IPC. All the sentences awarded in FIR No.15 dated 11.2.1994 under Sections 307/392/34 IPC, FIR No.24 dated 19.2.1994 under Sections 307/34 IPC and FIR No. 25 dated 19.2.1994 under Section 25 of the Arms Act, PS Civil Lines, Amritsar, are ordered to run concurrently. For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. Appellant is on bail. He is directed to surrender before the Crl.Appeal No.1207-SB of 1999 9 concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Amritsar, to issue re-arrest warrants to undergo the remaining period of sentence.

24.12.2010 (JORA SINGH ) JUDGE