Criminal Appeal No. 666-SB of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 666-SB of 1996 Date of Decision : 27.07.2009 Pali Singh @ Sat Pal Singh s/o Maghar Singh, aged 18 years, r/o village Rampur Mander, District Mansa. ...Appellant Versus State of Punjab. ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Daldeep Singh, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. * * * * SHAM SUNDER, J. This appeal is directed against the judgement of conviction dated 09.09.1996, and the order of sentence dated 12.09.1996, rendered by the Court of Additional Sessions Judge, Mansa, vide which, it convicted the accused, for the offence, punishable under Section 307 of Criminal Appeal No. 666-SB of 1996 2 the Indian Penal Code, and sentenced him, to undergo rigorous imprisonment for a period of seven years, and to pay a fine of Rs. 5,000/-, and in default thereof, to further undergo rigorous imprisonment for a period of six months. It was also directed that, out of the fine realized from the accused, an amount of Rs. 5,000/-, would be paid to Janak Singh, injured, as compensation. Bhola Singh, accused was, however, acquitted. 2. The facts, in brief, are that, prior to the occurrence, on 12.11.90, an altercation, took place, between Janak Singh, injured, son of Gurdial Singh, r/o village Rampur Mander, and Bhola Singh and Pali Singh alias Sat Pal Singh, accused, as a result whereof, both the accused, started nursing grudge, against the injured, and were bent upon killing him. Apprehending danger to the life of Janak Singh, his family members, sent him to village Bhawani Khera, Police Station Ratia (Haryana), and got him employed there as 'Siri' with one Jawala Singh. 3. On 11.11.1990, Janak Singh, visited his native village Rampur Mander. At about 6.00 PM, Janak Singh alongwith his elder brother Ajaib Singh, was going for some domestic work, and when they reached near the flour mill (Atta Chaki) of Dhanu Ram, Pali Singh alias Satpal Singh, accused, armed with a gandasa, and Bhola Singh, accused (since acquitted), armed with a dang, were found present there. On seeing Janak Singh coming, Bhola Singh, accused, raised an exhortation, that they would commit his murder, as it was the golden Criminal Appeal No. 666-SB of 1996 3 opportunity for them, to settle the personal score, with him, after waiting for a long period. Thereafter, Pali Singh @ Satpal Singh, accused, gave a gandasa blow, on the left side of the head of Janak Singh, whereupon, Ajaib Singh, raised hue and cry. In the meanwhile, Gurdial Singh father of the injured, also reached there and witnessed the occurrence. Ajaib Singh and Gurdial Singh, started raising hue and cry, which made the accused to decamp from the place of occurrence, alongwith their respective weapons. Thereafter, Bhola Singh son of Babu Singh, arranged a tractor trolley, in which, the injured, was taken to Civil Hospital, Mansa, and got admitted there. He was medico- legally examined. The concerned Medical Officer informed the Station House Officer, Police Station, Boha, regarding the arrival of the injured, in Civil Hospital, Mansa, whereupon, Assistant Sub Inspector Harbhajan Singh, reached there. He moved an application PF, seeking the opinion of the Medical Officer, as to whether, the injured was fit to make statement. On 12.11.1990, at 6.00 AM, the Medical Officer, vide his endorsement PF/1, opined that the injured, was unfit, to make the statement. Thereafter, Assistant Sub Inspector Harbhajan Singh, recorded the statement PJ of Ajaib Singh, who thumb marked the same, in token of its correctness. Harbhajan Singh, Assistant Sub Inspector, made his endorsement PJ/1, on the statement PJ, and sent it to Police Station, Boha, on the basis whereof, first information report PJ/2, was registered by Moharrir Head Constable Manjit Singh. Thereafter, Harbhajan Singh, Assistant Sub Inspector, took into possession the Criminal Appeal No. 666-SB of 1996 4 blood stained turban of Janak Singh, vide memo PK, which was attested by Gurdial Singh and Jagraj Singh. The statement of Gurdial Singh, was also recorded. Thereafter, Harbhajan Singh, Assistant Sub Inspector, went to the place of occurrence, alongwith Ajaib Singh, and prepared the rough site plan with correct marginal notes. He also lifted the blood stained earth and ordinary earth therefrom, and converted the same into separate parcels, duly sealed with the seal 'HS'. He took the parcels into possession, vide memo PN, attested by Jagraj Singh, and Janta Singh, prosecution witnesses. He searched the accused, but they were not found. 4. On 16.11.1990, on the identification of Bogha Singh, prosecution witness, he arrested Pali Singh @ Sat Pal Singh and Bhola Singh, accused. They were interrogated, as a result whereof, Pal Singh @ Satpal Singh, accused, suffered a disclosure statement PO, that he had concealed the gandasa, on the right side of his dry fodder room, in his residential house, of which he only knew, and could get recovered the same, by pointing out. In pursuance of his disclosure statement, Pal Singh @ Satpal Singh, accused, got recovered the gandasa, from the pre-disclosed place, which was taken into possession, by Harbhajan Singh, Assistant Sub Inspector. Bhola Singh, accused, also suffered a disclosure statement PQ, in pursuance whereof, he got recovered a soti. The soti was taken into possession, by Harbhajan Singh, Assistant Sub Inspector. 5. On the medical advice Janak Singh, injured, was removed Criminal Appeal No. 666-SB of 1996 5 to Rajindra Hospital, Patiala, and got admitted there. On 20.11.1990, Harbhajan Singh, Assistant Sub Inspector, moved an application, before the Medical Officer, regarding the fitness of the injured, whereupon, the Medical Officer, vide his endorsement PR/1, opined that, he was unfit to make the statement. After the completion of investigation, the accused, were challaned. 6. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 307 and 307 read with Section 34 of the Indian Penal Code, was framed against the accused, which was read over and explained to them, to which, they pleaded not guilty and claimed judicial trial. 7. The prosecution, in support of its case, examined Dr. Harnek Singh, Registrar, Department of Surgery, Unit 5-R, Rajindra Hospital, Patiala (PW1), Dr. Pawan Bansal, Medical Officer (PW2), Ajaib Singh, eyewitness-cum-complainant (PW3), Gurdial Singh, another eyewitness (PW4), Manjit Singh, Head Constable (PW5), and Assistant Sub Inspector Harbhajan Singh (PW6). Janak Singh, injured, as is evident, from the order dated 13.10.1995, was present, on that day, but he was given up, on account of the reason, that he was dumb and unable to speak. Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 8. The statement of the accused namely Pali Singh @ Sat Pal Criminal Appeal No. 666-SB of 1996 6 Singh, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He took up the following plea:- “I am innocent. I have been falsely implicated at the instance of Ajaib Singh. Janak Raj suffered the injury in the dark under the effect of intoxication when he was coming from village Bhawani Khera. Janak Singh, was alone at that time and was caused injuries by some unknown person and I was falsely implicated on the next morning. I was arrested on the next day and the false recovery of gandasa was shown from me by the Police after fabricating the evidence. Janak Singh, injured, was never prepared to give any statement against me and the Police fabricated his statement after 2 ¼ months.” He, however, did not lead any evidence, in defence. 9. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced Pali Singh @ Sat Pal Singh, accused, as stated above, whereas it acquitted Bhola Singh, the other accused. 10. Feeling aggrieved, the instant appeal, was filed by the appellant. 11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 12. The Counsel for the appellant, at the very outset, submitted that there was delay, in lodging the first information report, which remained unexplained, and, as such, the possibility of concoction of Criminal Appeal No. 666-SB of 1996 7 story, false implication of the accused, and introduction of false witnesses, could not be ruled out. The occurrence, in this case, took place on 11.11.1990, at about 6.00 PM, whereas, the first information report, was registered, on 12.11.1990, at 9.05 AM. Village Rampur Mander, where the occurrence, took place, is at a distance of 3 kms, from Police Station Boha. The first concern of the kith and kin of the injured, was to take him to Civil Hospital, Mansa, which is at a considerable distance, from the place of occurrence, so as to provide him the best medical aid, to prevent further harm to his life. Dr. Pawan Bansal, PW2, who was posted as Emergency Medical Officer, Civil Hospital, Mansa, conducted medico-legal examination of Janak Singh, at 11.05 PM, on 11.11.1990. It means that within the shortest possible time, after arranging the vehicle, the injured was taken to Civil Hospital, Mansa, which, as stated above, is at a considerable distance, from the place of occurrence. The injury measured 6 inches x 1 inch, incised wound, on the left side of skull about 1 ¼ inch above the left ear pinna going upto the lin-line and the underlying bone was fractured. Brain tissue was seen protruding. Fresh bleeding was present. It was declared dangerous to life. The condition of the injured, was, thus, precarious. On account of this injury, he became dumb, and could not speak, and, therefore, he could not be examined as a witness. As soon as, the doctor sent information, regarding the arrival of the injured, in the hospital, the concerned Police official, came to the hospital, and recorded the statement of Ajaib Singh, complainant, on Criminal Appeal No. 666-SB of 1996 8 the basis whereof, the first information report, was registered. The delay, in lodging the first information report, stood duly explained, from the facts and circumstances, referred to above. Even otherwise, mere delay, in lodging the first information report, in itself, is not sufficient to throw away the case of the prosecution. In the face of delay, in lodging the first information report, the Court is required to scrutinize the prosecution evidence, carefully and cautiously. If after careful and cautious scrutiny, the Court comes to the conclusion, that the evidence of the prosecution witnesses, carries a ring of truth, then delay in lodging the first information report, pales into insignificance. In the instant case, the evidence of Ajaib Singh, and Gurdial Singh, eye-witnesses, is cogent and convincing. Under these circumstances, even if, it is assumed, that there was some unexplained delay, in lodging the first information report, that pales into insignificance. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that there was considerable delay, in sending the first information report, to the Illaqa Magistrate, who was sitting at Mansa, which cast a cloud of doubt, on the prosecution story. The first information report, reached Illaqa Magistrate, Mansa, on 13.11.1990, at 10.40 AM. The first information report, had come into existence, on 12.11.1990, at about 9.05 AM, whereas the injured, had been examined, on 11.11.1990, at about 11.05 PM, and if the concerned Police official, was negligent, in Criminal Appeal No. 666-SB of 1996 9 delivering the first information report, to the Illaqa Magistrate, in time, it did not cast any doubt, on the prosecution story. No prejudice, was shown to have been caused, to the accused, on account of delay, in sending copy of the first information report, to the Illaqa Magistrate. Such a delay, therefore, could not be said to be fatal to the case of the prosecution. My view, in this regard, is supported by Sushill Vs. State of U.P. 1995(1) RCR (Criminal) 158 (S.C.). In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was further submitted by the Counsel for the appellant, that there was no intention or knowledge, on the part of the appellant, to cause such injury, on the person of the injured, as if his death had taken place, he would have been guilty of murder. It was further submitted that only one injury, was caused, on the person of the injured. He further submitted that, thus, no offence, punishable under Section 307 of the Indian Penal Code, was made out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. For determining, as to whether, the offence, punishable under Section 307 of the Indian Penal Code, is constituted, from the facts and circumstances of the case, as also the evidence produced, on record, the determining factors are the nature of the injury/injuries, on the person of the injured; the part, on which, the injury/injuries was/were caused; the weapon(s) being wielded by the accused, at the time of causing the injury/injuries; and the motive, for causing such Criminal Appeal No. 666-SB of 1996 10 injury/injuries. In the instant case, Dr. Pawan Bansal, Medical Officer, PW2, on medical-examination of Janak Singh, injured, found the following injury, on his person:- “About 6 inch x 1 inch incised wound on left side of skull about 1 ¼ inch above the left ear pinna going upto the lin-line underlying bone was fracture. Brain tissue was seen protruding. Fresh bleeding was present.” This injury, was declared dangerous to life. Dr. Harnek Singh, PW1, examined the injured, who was admitted in Rajindera Hospital, Patiala, on 12.11.1990. He in clear-cut terms, stated that upto 22.11.1990, the patient remained unconscious. However, with treatment, the patient regained consciousness, on 23.11.1990, but there was loss of speech and right side paralysis. He also stated that the injury was dangerous to life. The injury described above, being on the left side of the skull, resulting into the fracture of underlying bone, was so serious, in nature, that even the speech of the injured, was lost, and he also suffered paralysis. Both the doctors, aforesaid, in clear-cut terms, stated that the injury, was dangerous to life. So the offence, punishable under Section 307 of the Indian Penal Code, was constituted. In State of Maharashtra Vs. Balram Vama Patil (AIR 1983 S.C. 305), it was held that to convict under Section 307 of the Indian Penal Code, it is not necessary, to show that the bodily injury capable of causing death was inflicted, but what the Court has to see, is, as to whether, the act irrespective of its result, was done with the intention or knowledge and, under such circumstances, mentioned in this Section. Attempt need not Criminal Appeal No. 666-SB of 1996 11 be an ultimate act. It is sufficient, if there is an intent, coupled with some over-tact, in execution thereof. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellant, that the motive set up by the complainant, was that, there was an altercation, five months, before the occurrence, between the injured and the accused. He further submitted that the motive, was stale and weak, and, it, therefore, could not be said that the accused was having enmity, as a result whereof, he caused injury, aforesaid, on the person of Janak Singh, injured. It cannot be said that the motive was stale. It may be stated here, that even if, the motive for the occurrence, is proved to be weak, that does not cast any doubt, on the prosecution story. When there is cogent and convincing ocular evidence, in the shape of the statements of Ajaib Singh, PW3, and Gurdial Singh, PW4, both the eye-witnesses, duly corroborated by the medical evidence, referred to above, to prove the case of the prosecution beyond doubt, the motive whether proved or not or whether weak or strong loses its significance. There can be an occurrence, even without motive. Under these circumstances, the mere fact, that the motive was weak, in itself, did not at all cast any doubt, on the prosecution story. 16. It was next submitted by the Counsel for the appellant, that the appellant, has been undergoing the agony of criminal proceedings, for the last 19 years, and leniency, be shown, in the matter of sentence, Criminal Appeal No. 666-SB of 1996 12 by reducing the same. He further submitted that the appellant, has already undergone 8 months and 21 days of sentence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is not a fit case, in which, the lenient view, should be taken by this Court, in the matter of sentence. The mere fact that the appellant has been undergoing the agony of criminal proceedings, for the last about 19 years, in itself, is not sufficient to reduce the sentence awarded to him. The sentence awarded to the accused, by the trial Court, cannot be said to be, in any manner, excessive or harsh. The sentence awarded by the trial Court, is commensurate with the proved guilt of the accused. Undue sympathy to impose inadequate sentence, would do more harm to the justice system, to undermine the public confidence, in the efficacy of law, and the society could no longer endure under such serious threats. It is, therefore, the duty of every Court, to award proper sentence, having regard to the nature of offence, and the manner, in which, it was executed or committed. In case, in such like heinous offences, inadequate sentence, is awarded or the sentence awarded by the trial Court, is reduced, that would amount to the mockery of justice system. No ground, whatsoever, is made out, to reduce the sentence, awarded to the accused, by the trial Court. The submission of the Counsel for the appellant, being devoid of merit, is rejected. 17. No other point, was urged, by the Counsel for the parties. 18. In view of the above discussion, it is held that the Criminal Appeal No. 666-SB of 1996 13 judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. 19. For the reasons recorded above, the appeal, filed by Pali Singh @ Sat Pal Singh, appellant, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, qua him, are upheld. If the appellant, is on bail, his bail bonds, shall stand cancelled. 20. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 21. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 22. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 27.07.2009 (SHAM SUNDER) AMODH JUDGE