Criminal Appeal No. 211-SB of 1995 1 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 211-SB of 1995 Date of Decision: 04.05.2009 Prem Singh son of Har Chanda, resident of village Anangpur, Police Station N.I.T., Faridabad. ... Appellant Versus The State of Haryana ...Respondent Criminal Appeal No. 570-SB of 1995 Date of Decision: 04.05.2009 1. Ved Pal son of Attar Singh, resident of village Anangpur, Police Station N.I.T., Faridabad. 2. Chattar Singh son of Har Chanda, resident of village Anangpur, Police Station, N.I.T., Faridabad. ... Appellants Versus The State of Haryana ...Respondent Criminal Appeal No. 211-SB of 1995 2 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Criminal Revision No. 817 of 1995 Date of Decision: 04.05.2009 Ajit son of Piare, resident of Village Anangpur, P.S. N.I.T. Faridabad, District Faridabad. ... Revision-petitioner Versus 1. Prem Singh son of Har Chanda; 2. Ved Pal son of Attar Singh; 3. Chattar Singh; 4. Attar Singh; 5. Vijender; 6. Nirbhey, sons of Har Chanda; 7. Rajinder son of Hari Chand; 8. Tejpal son of Attar Singh; All residents of village Anangpur, P.S. N.I.T. Faridabad, District Faridabad. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.S. Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for the appellant, in Criminal Appeal No. 211-SB of 1995. Mr. R.S. Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for the appellants, in Criminal Appeal No. 570-SB of 1995. Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the respondent – State. Criminal Appeal No. 211-SB of 1995 3 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Mr. Sandeep Mann, Advocate, for the complainant, in both the appeals. Mr. Sandeep Mann, Advocate, for the revision-petitioner, in Criminal Revision No. 817 of 1995. Mr. R.S. Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for the respondents, in Criminal Revision No. 817 of 1995. SHAM SUNDER, J. * * * * This judgement shall dispose of Criminal Appeal No. 211-SB of 1995, filed by Prem Singh, against the judgement of conviction dated 16.03.95, and the order of sentence dated 20.03.95, vide which, he was convicted and sentenced as under; Criminal Appeal No. 570-SB of 1995, filed by Ved Pal, and Chattar Singh, accused (now appellants), against the same judgement, vide which, they were convicted and released on probation; and Criminal Revision No. 817 of 1995, filed by Ajit, revision- petitioner, for enhancement of sentence of imprisonment, and fine, imposed upon Prem Singh, accused (now appellant); award of suitable sentence to Ved Pal and Chattar Singh, accused, who were released on probation; setting aside the judgement of acquittal qua Attar Singh, Bijender, Rajinder, Tejpal Singh, and Nirbhey and awarding them suitable sentence and award of compensation. Criminal Appeal No. 211-SB of 1995 4 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Name of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 Prem Singh (a) Under Section 326 of the Indian Penal Code. To undergo rigorous imprisonment for a period of three years, and to pay a fine of Rs. 500/-, in default thereof, to further undergo rigorous imprisonment for a period of three months. (b) Under Section 324 of the Indian Penal Code. To undergo rigorous imprisonment for a period of one year, and to pay a fine of Rs. 200/-, in default thereof, to further undergo rigorous imprisonment for a period of one month. (c) Under Section 27 of the Arms Act. To undergo rigorous imprisonment for a period of two years, and to pay a fine of Rs. 300/-, in default thereof, to further undergo rigorous imprisonment for a period of two months. All the subtantative sentences, were ordered, to run concurrently. 2. The gist of the prosecution case is that, Pyare Lal father of Ajit, had two brothers namely Hari Chand and Harchanda. Accused Bijender and Rajender, were the sons of Hari Chand. In November 1987, they had a land dispute, with them. The other uncle of Ajit namely Harchanda, had also aligned himself, with them. In the earlier occurrence, Bajinder was injured, for which, Ajit and Sarjit brother of Ajit were challaned, by the Police, Criminal Appeal No. 211-SB of 1995 5 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 under Section 325 of the Indian Penal Code. 3. On 23.02.88, at around 8.30 P.M., Ajit was going to attend his duty, on a cycle and when he reached near the field of Rumal, situated quite close to their house, Nirbhai, Attar Singh, Chattar Singh and Prem, accused, armed with lathis and hockey sticks, accosted him. Nirbhai exhorted his co- accused to teach him (Ajit) a lesson, as a result whereof, he dropped his cycle, and ran towards his house, to save himself, but Nirbhai, dealt a lathi blow, on his back. Ajit returned home, and talked about the incident, to his neighbours Dharambir, Shish Pal and Suraj. In the meanwhile, the aforesaid accused, also reached there, and altercation took place. Dharambir, Shish Pal and Suraj, intervened and dispersed them. 4. On 24.02.88, at about 7 A.M, accused Nirbhey, came in front of their (complainant party's) house. He shouted at Ajit, that even though, he had escaped, on the preceding night, yet he would settle the score, at some other time. Ajit Singh, exchanged hot words with him. On hearing of commotion, all the accused, reached the spot. Accused Attar Singh, was armed with a sword, Ved Pal was carrying a country made pistol, Bhim Singh and Harchanda, were empty handed, Chattar Singh, Bijender, Rajender and Tej Pal, were carrying lathies or hockey sticks. From the side of Ajit Singh, Rajender, Ranjit, Kishan, Beg Raj, Risal, Hans Raj and Ajay Pal, besides Sudesh, also came there. Attar Singh, accused shouted, that they would see him (Ajit). Then the accused attacked the members of the complainant party, with lathis and hockey sticks. They also used brick bats. Attar Singh, also exhorted Prem Singh, to bring his gun. Accordingly, Prem Singh, brought his gun, and fired 4 or 5 shots, while standing on his Criminal Appeal No. 211-SB of 1995 6 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 chabutra. Ved Pal, fired one single shot, from his pistol. The first shot of Prem Singh, struck Ajit Singh, on his eye, face and shoulder. Tejbir, Hans Raj, Ajai Pal, Jaipali and Bittoo, received pellet injuries at the hands of Prem Singh, whereas Jaggo, received the pellet injuries, at the hands of Ved Pal. Ranjit, Kishan, Rajender, Beg Raj, Risal and Sudesh, received injuries, besides Ajit Singh. They received injuries at the hands of the accused with lathies and hockey sticks. The complainant party, also threw stones, at the accused, as a result whereof, some of them, received injuries. Chahat, Bahadur and Amrit, Sarpanch, witnessed the occurrence. The injured were taken to the hospital. 5. On 24.02.88, Bisheshar Lal, Inspector, received a ruqa from B.K. Hospital Faridabad, as a result whereof, he visited the same, and recorded the statements of Ajit Singh, exhibit PDD, and Piare Lal injured, who were admitted, in the hospital, after obtaining the opinion of the doctor, that they were fit to make the same. Bisheshar Lal, Inspector, also recorded the statements of the witnesses, in the hospital, and thereafter, visited the spot. He prepared the rough site plan exhibit PHH, on the pointing out of Ranjit Singh, prosecution witness. He picked up two empties from the baithak of Attar Singh, sealed the same, in a parcel, and took the same into possession, vide recovery memo exhibit PJJ, attested by the witnesses. Bisheshar Lal, Inspector, arrested six accused, on 27.02.88, and Ved Pal, accused on 01.03.88. On interrogation, Ved Pal, accused, made a disclosure statement, that he had concealed one country made pistol, in front of the kikar of his house, and could get the same recovered. In pursuance of his disclosure statement, he got recovered the pistol, which was taken into possession by Criminal Appeal No. 211-SB of 1995 7 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Bisheshar Lal, Inspector. He arrested Nirbhey, accused, on 01.03.88. On 27.02.88, Attar Singh, produced his licenced gun, and the same was taken into possession, vide recovery memo exhibit PCC, after preparing its rough sketch exhibit PCC/1. 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 148, 307, 323, and 325 read with Section 149 of the Indian Penal Code, against all the accused, as also under Section 27 of the Arms Act, against Prem Singh, accused, was framed, 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 as many as 15 witnesses. Dr. V.K. Aggarwal, appeared as (PW1), who examined Ajit, and found the following injuries, on his person:- (i) Left eye was congested. There was lacerated wound of size 3mm x 3 mm on upper lip on the medium side with fresh bleeding. Injury was referred to eye specialist. (ii) Lacerated wound size 3mm x 3mm on right cheek with fresh blood. (iii) Lacerated wound size 3mm x 3mm on right side of scalp in parietal region. (iv) Two lacerated wounds size 3mm x 3mm on upper part of right arm with clotted blood. (v) Five abrasions size 4mm x 4mm with contusion around them on the right side of chest and posterior aspect of right shoulder with clotted blood. Criminal Appeal No. 211-SB of 1995 8 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 He proved M.L.R. exhibit P.A, xray report exhibit PB, and skiagrams exhibit PB/1 to PB/5. He also proved ruqa, exhibit PC, sent to the Police, regarding the arrival of injured, in the hospital. He also proved opinion, exhibit PD. 8. On 25-2-88, Dr. V.K. Aggarwal, also medically examined, Ajay Pal, and found three radio opaque shadows of matalic density. He proved his report exhibit PE and skiagrams exhibit PE/1 and PE/2. 9. On 24-2-88, he also x-rayed Risal, and found no bony injury. He proved report exhibit PF and skiagrams exhibit PF/1 to exhibit PF/3, in that behalf. 10. Rajinder, was also radiologically examined by Dr. V.K. Aggarwal, and he proved his report exhibit PG, and skiagram exhibit PG/1. He also radiologically examined Ranjit, Virender, Jai Pal, Jaggo, Tejbir, and proved xray reports exhibits PH, PJ, PK, PL and PN respectively. 11. Dr. Rajiv Arya (PW2), on 24-2-88, medically examined Tejbir, and found the following injuries, on his person:- (i) Patient was conscious. The anterior chamber of right eye contained blood. There was history of vomitting. (ii) There were multiple small circular wounds present on the forehead on right side and left side. Each wound was about 0.35cm x 0.35cm in size with fresh bleeding and underline swelling. (iii) Two small circular wounds were present on the left side of neck about 0.45 cm x 0.45 cm. in size with fresh bleeding and underline swelling. (iv) A small circular wound 0.45 cm x 0.45 cm in size on the left shoulder area with fresh bleeding. (v) There was swelling of the right eye with bleeding. The anterior chamber of the eye contained blood. This injury was referred to eye surgeon for his opinion while other injuries were referred for surgeon's opinion. Criminal Appeal No. 211-SB of 1995 9 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 He examined his report exhibit PN, in that behalf, on Police application, and proved opinion exhibit PN/A. 12. Dr. Rajiv Arya (PW2), also medically examined Beg Raj, and found the following injuries, on his person:- (i) A 3” long lacerated wound on the right parietal region just below to the midline. The wound was scalp deep and the underline bone was healthy. Injury was kept under observation and was referred to Surgeon's opinion. He proved M.L.R Exhibit P.Q in this behalf. 13. Risal, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:- (i) A 1” long lacerated wound on the left eye brow. The underline bone was healthy. The injury was referred for xray and eye Surgeon's opinion. (ii) There was blood in the anterior chamber of left eye. Advised for eye Surgeon's opinion. (iii) There was lacerated wound 1.5cm on the left vestigule of the nose. Advised xray nasal area. He proved exhibit PP the correct carbon copy of M.L.R. 14. Doctor Rajiv Arya (PW2), also medically examined Sudesh, and found the following injuries, on his person:- (i) Lacerated wound 1cm present on the forehead on the left side. Fresh bleeding present. (ii) An abrasion 2”x0.25” on the lateral surface of right thigh. Underline swelling was present. He proved carbon copy of MLR Exhibit PQ, in this behalf. 15. Kishan, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:- (i) Lacerated wound 1” in size on the parietal (left) region. Fresh bleeding was present. Criminal Appeal No. 211-SB of 1995 10 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 (ii) Abrasions were present on the right hand. He proved carbon copy of MLR Exhibit PR in that behalf. 16. Hans Raj, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:- (i) A small 0.25x 0.25 cm circular wound present on the lateral surface of the left leg. Advised xray. (ii) A small 0.25x0.25cm circular wound present at the lateral surface of the left ankle joint. Advised xray. M.L.R exhibit P.S was proved by the aforesaid doctor, in that behalf. 17. Dr. Rajiv Arya (PW2), also medically examined Ajay Pal, and found the following injuries, on his person:- (i) Two small circular wounds present on the forehead on the left side just above the left eye brow. Each measuring 0.25cm x 0.25cm in size. Fresh bleeding was present. Advised xray and Surgeon's opinion. Wound was fresh. He also medically examined carbon copy of MLR exhibit PT in that behalf. 18. Smt. Jaggo, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on her person:- (i) A small circular wound 0.35cm x 0.35 cm in size was present on the anterior lateral surface of the right thigh. (ii) A small circular wound 0.25 x 0.25 cm present on the lateral surface of the right forearm closed to the elbow joint. He proved exhibit PW, the M.L.R., in that behalf, and exhibit PW1/1 the opinion. 19. Dr. Rajiv Arya (PW2), also medically examined Rajinder, and found the following injuries, on his person:- (i) An abrasion 1 ½ ”x0.5” in size present on the antero lateral aspect of the right leg at the centre. Xray advised. He proved Exhibit P.X the correct carbon copy of M.L.R. in that behalf. Criminal Appeal No. 211-SB of 1995 11 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 20. Ranjit, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:- (i) An abrasion 1.5 x 1.5” in size present on the front of left foot. (ii) An abrasion and swelling 2”x2” in size present over the right shoulder joint. Advised xray. He proved exhibit PY, the M.L.R., prepared in that behalf, and exhibit PY/1, the opinion. He also proved the opinion exhibit UP/1, regarding the injuries suffered by Virender, as well as the opinion exhibit PT/1, regarding injuries suffered by Ajay Pal. The report exhibit PN/1, was also proved, by him, vide which, he referred Tejbir, to A.I.I.M.S. Delhi. 21. Dr. Rajiv Arya (PW2), also medically examined Attar Singh (accused), on 24.02.88, and found the following injuries, on his person:- (i) Multiple abrasions on the left hand on posterior surface with swelling of the hand. Xray advised. (ii) A big contusion 4” x 6” in size on the anterio lateral aspect of the left fore-arm. Tenderness was present. Xray advised. (iii) An abrasion 2” x 1 ½ ” on the posterio lateral surface of the right forearm closed to the right elbow joint with swelling and tenderness. Xray advised. (iv) Multiple abrasions were present on the right hand. (v) An abrasion was present on the right foot closed to the big toe on the anterio surface. (vi) A contusion 2” x 2” was present 4” above the left ankle joint with swelling. Xray advised. He proved MLR, exhibit DA, in that behalf,. 22. Dr. Rajiv Arya (PW2), also medically examined Nirbhey (accused), and found the following injuries, on his person:- (i) A lacerated wound 1” in size was present on the forehead on the Criminal Appeal No. 211-SB of 1995 12 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 left side closed to the parietal region. Clotted blood was present. (ii) There was a penetrating wound 0.75cmx0.5cm on the lateral surface of the lower abdomen on left side. The margins were sharp. The injury was advised for xray and for Surgeon's opinion. (iii) There were multiple contusion marks on the front and lateral side of the left thigh with tenderness. He proved MLR exhibit DB, in that behalf. 23. Harchanda (from the side of the accused), was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:- (i) A lacerated wound with fresh bleeding 3" long was present on the anterior surface of right foot. (ii) An abrasion on the right leg in the medial surface was present. (iii) There were multiple abrasions on the left foot. He proved M.L.R. Exhibit D.C in that behalf. 24. On the same day, Dr. Rajiv Arya (PW2), also examined Lali, and found the following injuries, on her person:- (i) A lacerated wound 1" in size on the anterio lateral surface of the left foot on the front side was present. (ii) A lacerated wound was present of 1" in size on the right parietal region which was scalp deep. He proved exhibit DD, the photocopy of MLR, in that behalf. 25. Charan Singh, Clerk, office of the Sub Divisional Magistrate, Ballabgarh, (PW3), brought the record, regarding sanction of arm licence for DBBL. 12 gun in favour of Attar Singh. 26. Kanhiya Lal, Sub Inspector (PW4), proved applications, exhibit PZ and PZ/A, moved by him, for seeking opinion of the doctor, regarding the nature of injuries, on the person of the injured. On 9-7-88, he recorded Criminal Appeal No. 211-SB of 1995 13 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 the statement of Charan Singh Clerk. 27. Rura Ram, Head Constable (PW5), proved ruqa, exhibit PAA, and made an entry, to this effect, in the DDR, at serial No.5, dated 02.02.88, vide DDR exhibit PAA/1. 28. Ram Lubhaya, Head Constable (PW6), tendered affidavit Exhibit PBB. 29. Chhattar Singh, Head Constable (PW7), stated that gun exhibit P1, was taken into possession, by Sub Inspector Bisheshar Lal, from Attar Singh accused, vide memo exhibit PCC. 30. Ajit, complainant (PW8), and Ranjit, eye-witness (PW9),deposed in terms of the prosecution version. 31. Chahat (PW10), and Tejbir (PW11), narrated about the incident. 32. Paras Ram, Medical Record Technician (PW12), brought the summoned record, pertaining to the treatment of Ajit Singh. 33. Dr. Atul Kumar, Associate Professor (PW13), stated that he knew Dr. S.N. Jha. He also deposed that on reference from B.K. Hospital Faridabad, Ajit was treated at their Institute. He also stated that he only examined the patient in the Retina Clinic for both of his eyes. His left eye showed damage to the Retina with haemorrahage. The doctor proved his report exhibit PGG. He further stated that he (Ajit) was examined by another Specialist, on being referred to Trauma Clinic, and the final opinion of the Trauma Clinic, was that the prognasis was poor in the left eye and to some extent, there was loss of vision. 34. Dr. S.N. Jha, Consultant, Sir Ganga Ram Hospital, Delhi (PW14), stated that he had examined the patient and also operated upon him on 25-2- Criminal Appeal No. 211-SB of 1995 14 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 1988. There was perforation at the limbus, radiological examination revealed Magnetic foreign body. He also deposed that he repaired the damage and tried to remove the aforesaid foreign body. Three pellets were found embedded in the orbit of the eye. He also stated that he applied giant magnet and was able to extract one pellet from outside the eye. The doctor proved his report exhibit PHH. 35. Bisheshar Lal, Inspector Vigilance, Karnal (PW15), Investigating Officer, made a statement, about the sequence of investigation, conducted by him. 36. The Public Prosecutor for the State, tendered into evidence exhibit PEE affidavit of Constable Harmes. He also tendered into evidence report exhibit PFF of the Radiologist lady doctor Shashi Bhalla. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 37. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They took up a plea, that the attack was launched by the complainant party, and they caused injuries, in self defence. 38. In defence the accused examined Sish Pal (DW1). They also tendered into evidence documents exhibit DY and marks A and B. Thereafter, the accused closed their defence evidence. 39. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced Prem Singh, appellant, as stated above, whereas, convicted and released Chattar Singh, and Ved Pal, accused, on probation of good conduct, and acquitted Criminal Appeal No. 211-SB of 1995 15 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Bijender, Rajinder, Tejpal, Nirbhey, and Attar Singh, accused. 40. Feeling aggrieved, the aforesaid appeals by the appellants, and the revision-petition, by the complainant/revision-petitioner were filed. 41. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 42. The Counsel for the appellants, submitted that the trial Court, was wrong in coming to the conclusion, that it was a case of free fight, in which, the accused as well as the members of the complainant party, caused injuries on each other. He further submitted that from the evidence, on record, it was proved that the members of the complainant party, were the aggressors, and the members of the accused party, were the aggressive. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Five injuries on the person of Ajit, caused by fire arm, four injuries on the person of Tejvir, caused by fire arm, one injury on the person of Beg Raj, caused by blunt weapon, three injuries, on the person Risal, caused by blunt weapon, two injuries, on the person of Sudesh, caused by blunt weapon, two injuries on the person of Kishan, two injuries, on the person of Hans Raj, one injury, on the person of Ajay Pal, two injuries, on the person of Jaggo, one injury, on the person of Rajinder, two injuries, on the person of Ranjit, as also injuries on the person of Virender, and Jaipal, on the complainant side, and six injuries, on the person of Attar Singh, accused, three injuries, on the person of Nirbhey Singh, accused, three injuries on the person of Harchanda (from the side of accused), and two injuries, on the person of Lalli (from the side of accused), were found. In this manner, there were