Crl.Rev.No.936 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Rev.No.936 of 2002 Date of Decision: 30.4.2009 Bhola Singh .....Petitioner Vs. State of Punjab ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Harsh Aggarwal, Advocate for the petitioner. Mr. B.B.S. Teji, AAG, Punjab for the respondent. .... RAJIVE BHALLA, J The petitioner has preferred this revision against his conviction and sentence under Sections 325 and 323 of the Indian Penal Code (hereinafter referred to as `the Penal Code') by the Judicial Magistrate, Ist Class, Sunam dated 22.2.2002 and the dismissal of the appeal by the Additional Sessions Judge, Sangrur on 27.4.2002. Kartar Singh S/o Baggu Singh (the complainant) recorded a statement before Head Constable Rajwinder Singh at Primary Health Centre (PHC) Moonak that on 24.1.2001, at about 6.00 PM, when he was returning to his house, he was confronted by Bholla Singh, the petitioner herein, accompanied by the latter's nephew, who was armed with a gandali. Bholla Singh asked the complainant to give his share in the agricultural land, but as the complainant refused, Bholla Singh gave a gandali blow, which hit the Crl.Rev.No.936 of 2002 2 complainant's left arm, as he made an attempt to ward off the blow. The complainant fell down, whereupon he was inflicted four gandali blows on his left shoulder, left elbow, thumb and a finger of the right hand. As the complainant raised an alarm, the accused made good their escape. The complainant was admitted to the P.H.C., Moonak, where he was medically examined. Injury no.1 was declared grievous, whereas injuries no.3 and 4 were declared simple in nature. A case was registered against the petitioner and his co-accused and after their arrest and upon completion of investigation, the police filed a final report. Upon consideration of the final report, the trial court framed charges under Sections 325 and 323 of the Penal Code. In order to establish its case, the prosecution examined Kartar Singh, complainant as PW-1, Sukhdev Singh as PW-2, HC Rajwinder Singh as PW-3, Dr.G.L Goyal, Medical Officer as PW-4, ASI Mithu Singh as PW- 5 and closed the evidence. In his statement under Section 313 of the Code of Criminal Procedure, the petitioner denied his culpability and pleaded that as he was a witness in the murder case of Dhana Singh, he had been falsely implicated. He further pleaded that Kartar Singh had sustained injuries in a fall, while under the influence of liquor. The learned trial court, after a considered appraisal of the evidence on record held that the prosecution had succeeded in establishing that the petitioner had way-laid the complainant and inflicted injuries. He was, therefore, guilty of the accusations levelled against him. It was held that the ocular version duly supported by the medical evidence left no manner of doubt, as to the petitioner's culpability. The petitioner was consequently convicted under Sections 325 and 323 of the Penal Code and was sentenced under Section 325 to undergo rigorous Crl.Rev.No.936 of 2002 3 imprisonment for two years and to pay a fine of Rs.1000/-. In default of payment of fine, to further undergo rigorous imprisonment for two months and under Section 323 IPC rigorous imprisonment for six months and to pay a fine of Rs.250/-. In default of payment of fine, to further undergo rigorous imprisonment for 15 days. Aggrieved by his conviction and sentence, the petitioner preferred an appeal. The Additional Sessions Judge, Sangrur, dismissed the appeal, but reduced the sentence of imprisonment under Section 325 IPC to one year and under Section 323 IPC to three months. Counsel for the petitioner submits that the first information report was lodged on 30.1.2001, whereas the alleged incident occurred on 24.1.2001. The prosecution has failed to furnish any explanation for this delay. It is further submitted that the complainant was admitted to hospital on 25.1.2001 and, therefore, there was no reason for the lodging of the FIR after a delay of six days. It is also submitted that the learned courts below ignored the fact that the weapon of offence has not recovered, thus, casting a doubt upon the prosecution case. Another argument advanced by counsel for the petitioner is that the radiologist, who carried out the X-ray examination was not examined to prove his report Ex.PF or the Skiagrams Ex.P-1 and P-2. Even otherwise, as the injuries are to non-vital parts of the body and the doctor's opinion, during his cross-examination, that such injuries could be suffered due to a fall from a height, have been ignored by the courts below. It is prayed that in case the petitioner's prayer for acceptance of the revision petition does not find favour, the petitioner should be released on probation, as he is 45 years old, has three minor school going children namely, a girl aged 16 and two sons aged 15 and 13 Crl.Rev.No.936 of 2002 4 years respectively. In addition, the petitioner is a daily wager and his family is dependent upon his earnings. The petitioner has already undergone three months of actual imprisonment and as the petitioner is a first offender and has no other criminal case against him, he may be released on probation. Counsel for the State of Punjab,however, submits that the concurrent findings recorded by the courts below do not disclose any error of law or such an error of fact, as would require interference. The courts below have accepted the prosecution version as correct and rejected the petitioner's defence. It is, therefore, prayed that the present petition be dismissed. However, with respect to the petitioner's prayer for release on probation, counsel for the State of Punjab submits that the petitioner is a first offender and, therefore, the State does not have any objection, if he is released on probation. I have heard learned counsel for the parties and perused the impugned judgements. The petitioner is alleged to have inflicted injuries answering to the description of offences punishable under Sections 325 and 323 of the Penal Code. The prosecution has established the petitioner's culpability. The ocular evidence is duly supported by the medical evidence. The delay in the lodging of the FIR has been satisfactorily explained and accepted by the courts below, as insufficient to cast any aspersion on the prosecution version. The assertion that as the official, who carried out the X-ray has not been produced, the medical evidence has to be rejected cannot be accepted as Dr.G.L. Goyal, PW-4 has deposed with regard to the nature of the injuries. Another argument that the injuries were self suffered, as in his cross-examination Dr.G.L. Goyal, PW-4 has admitted that these injuries Crl.Rev.No.936 of 2002 5 could be the result of a fall from a height does not merit acceptance as this opinion is not supported by relevant facts. Consequently, I find no reason to differ with the view adopted by the courts below and, therefore, have no option but to dismiss the revision petition on merits. It would, however, be appropriate to consider, whether the petitioner should be released on probation. The petitioner has been sentenced under Section 325 IPC to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two months and under Section 323 IPC to undergo rigorous imprisonment for three months and to pay a fine of Rs.250/- and in default of payment of fine to further undergo rigorous imprisonment for 15 days. The petitioner is 45 years old and is the father of three minor school going children, namely a girl aged 16 years and two sons aged 15 and 13 years respectively. In addition, the petitioner is a daily wager and his family is dependent on his earnings. The petitioner is a first offender and has no criminal case pending against him. The petitioner has already undergone three months of actual imprisonment. It would also be necessary to mention here that the grievous injury attributed to the petitioner was to a non-vital part of the body. Consequently, taking into consideration the totality of the circumstances referred to herein above and while upholding the conviction and sentence imposed upon the petitioner, the sentence is modified to the extent that instead of undergoing the remainder of his sentence, the petitioner is directed to be released on probation on executing bonds to the tune of Rs.30,000/- with one surety in the like amount to the satisfaction of Chief Judicial Magistrate, Sunam. The petitioner is, however, directed to Crl.Rev.No.936 of 2002 6 file an undertaking to keep peace and maintain good behaviour for one year and to appear and undergo sentence as and when called upon to do so. 30.4.2009 (RAJIVE BHALLA) GS JUDGE