IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision Petition No.1227 of 1999 Date of Decision: 25.8.2009 Jagjit Singh and others. ....... Petitioners through Shri Puneet Bali, Advocate. Versus State of Punjab. ....... Respondent through Shri B.B.S.Teji, Assistant Advocate General. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This revision petition is directed against judgment dated 15.9.1999of the Additional Sessions Judge, Mansa (hereinafter described as `the appellate Court') vide which the appeal of the petitioners was dismissed and the judgment of conviction & order of sentence dated 13.5.1998 passed by the Judicial Magistrate Ist Class, Mansa (referred to hereinafter as `te trial Court') were upheld. Briefly stated the facts of the case are that on 2.3.1991, a ruqa was received from Civil Hospital,Mansa in the Police Station, Sadar Mansa to the effect that two persons, namely, Gurdip Singh and Darshan Singh Crl.Revision Petition No.1227 of 1999 -2- .... sons of Joginder Singh, residents of village Mussa had been admitted to the hospital due to injuries on their person, upon which A.S.I. Balwant Singh went there, but the doctor attending them opined that both of them were unfit to make statement on that day. The next day, i.e., on 3.3.1991, on being declared fit, the A.S.I. recorded the statement of injured-Gurdip Singh in which he stated that on 2.3.1991, he and his elder brother-Darshan Singh had visited their `Tibbiwala' field where on the joint ridge of their field and the field of Bachan Singh, there was a ` Berry' tree standing; that half of the branches of the said tree were cut by Bachan Singh and so, they started cutting the remaining branches; that in the meanwhile, Bachan Singh came there and asked them why they were cutting the branches; that he retorted back that since he, i.e., Bachan Singh, had already cut half of the portion of `Berry' tree, they had the right to cut the remaining portion; that thereafter, Bachan Singh returned to the village; that at about 10.00 or 11.00 A.M., Bachan Singh armed with `gandasa' and his two sons, namely, Jagjit Singh and Balbir Singh @ Billu, who too were armed with `gandasas' came there; that thereupon he and his brother went to the field of Mithu Singh; that Bachan Singh and his sons followed them and started calling bad names; that on hearing the noise, Joginder Singh, their father, who was working in the field nearly at a distance of 4-5 killas, also came there; that Bachan Singh then asked his sons that the complainant side be taught a lesson for cutting `Berry'; that on his saying so, Jagjit Singh gave a `gandasa' blow on his person which struck on his right hand when he tried to ward off the blow by raising it; that Bachan Singh also gave a `gandasa' blow which hit him Crl.Revision Petition No.1227 of 1999 -3- .... near the thumb of left hand when he raised his left hand to save himself; that thereafter, Darshan Singh advanced towards him and Balbir Singh gave a `gandasa' blow on his left wrist from its sharp side;that Jagjit Singh gave a `gandasa' blow on his right leg, whereas Bachan Singh gave a `gandasa' blow from sharp side on the left side of his back; that on raising `raula' by Joginder Singh, Bachan Singh and his sons ran away from the field along with their weapons; that Joginder Singh had removed him and his brother to the hospital in a jeep. After recording of the statement of Gurdip Singh, the law was sent in motion by registering an F.I.R. The police investigated the matter, arrested the accused persons, who are petitioners herein and submitted a challan against them for having committed offences punishable under Sections 326, 324 and 34 of the I.P.C. The trial Court according charge sheeted them to which they pleaded not guilty and claimed trial. In order to prove its case against the petitioners, the prosecution examined as many as four witnesses including Dr.Nazar Singh – PW1. In their statements under Section 313 of the Cr.P.C., the petitioners pleaded false implication and stated that Bachan Singh had also sustained injuries at the hands of Gurdip Singh and Darshan Singh on account of which he had remained hospitalized for about 20 to 25 days. It was further stated that the police had fabricated a false case in connivance with the complainant. In their defence, the petitioners had examined Dr.S.L.Thukral as DW1, Dr.Nazar Singh as DW2 and Dr.Hardev Singh as DW3. Crl.Revision Petition No.1227 of 1999 -4- .... After appraisal of the entire evidence on record, the trial Court convicted the petitioners under Sections 326 and 324 read with Section 34 of the I.P.C. and sentenced them as under:- Petitioner-Jagjit Singh (i)to undergo rigorous imprisonment for 1-1/2 years and to pay fine of Rs.1500/-under Section 326 of the I.P.C. and in default of payment of fine, to undergo further rigorous imprisonment for three months. (ii)to undergo rigorous imprisonment for nine months and to pay a fine of Rs.500/- under Section 324 of the I.P.C. and in default of payment of fine, to undergo further rigorous imprisonment for two months. Petitioner-Balbir Singh (i)to undergo rigorous imprisonment for 1-1/2 years and to pay fine of Rs.1500/-under Section 326 of the I.P.C. and in default of payment of fine, to undergo further rigorous imprisonment for three months. (ii)to undergo rigorous imprisonment for nine months and to pay a fine of Rs.500/- under Section 324/34 of the I.P.C. and in default of payment of fine, to undergo further rigorous Crl.Revision Petition No.1227 of 1999 -5- .... imprisonment for two months. Petitioner-Bachan Singh (i)to undergo rigorous imprisonment for 1-1/2 years and to pay fine of Rs.1500/-under Section 326/34 of the I.P.C. and in default of payment of fine, to undergo further rigorous imprisonment for three months. (ii)to undergo rigorous imprisonment for nine months and to pay a fine of Rs.500/- under Section 324/34 of the I.P.C. and in default of payment of fine, to undergo further rigorous imprisonment for two months. The substantive sentences were,however, ordered to run concurrently. Feeling aggrieved, the petitioners preferred an appeal which was dismissed by the appellate Court resulting in filing of the instant revision petition. Learned counsel for the petitioners has primarily raised an argument which is more or less inter-twined with the sequence of events. He has contended that the evidence on record shows that the tree was in existence on the ridge of the fields of the petitioners and as per prosecution story which suggests that the tree was being cut by the injured persons, petitioner-Bachan Singh, who objected to the same, had invited the wrath of the complainant party and he was attacked which explains the injuries on his Crl.Revision Petition No.1227 of 1999 -6- .... person and thereafter, he and his sons acted in self-defence and caused injuries to Gurdip Singh and Darshan Singh. He has further contended that the injuries on the person of Bachan Singh remained unexplained and it casts a serious doubt about the prosecution case as to who was the aggressor. Learned counsel for the petitioners submitted that the evidence on record shows that the possibility of false implication of the petitioners cannot be ruled out for the simple reason that PW1-Dr.Nazar Singh stated that when he examined the injured persons, both were conscious and to a pointed question as to who caused injuries to them, they did not respond. He further submitted that the testimony of PW4-A.S.I. Balwant Singh, the investigating officer, shows that the injured persons were unfit to make statement on 2.3.1991, but this portion cannot be believed in the light of the statement of PW1-Dr.Nazar Singh and this might have been stated by him to explain the delay in lodging of the F.I.R. In any eventuality, he argued that since the injuries on the person of petitioner-Bachan Singh were not explained at all by the prosecution, the entire version as put forward by it, cannot be believed and the benefit of doubt necessarily has to be given to the petitioners. Lastly, it was submitted that in case the Court comes to the conclusion that the petitioners' conviction does not require interference, then the benefit of probation under Section 4 of the Probation of Offenders Act,1958 (for short, `the Act') may be extended to them as the occurrence took place in the year 1991 and they have faced the criminal proceedings for the last more than 18 years and are well advanced in age by now. In support of his contentions/ submissions/ arguments, learned Crl.Revision Petition No.1227 of 1999 -7- .... counsel for the petitioners placed reliance on Ved Parkash Versus State of Haryana, AIR 1981 S.C. 643; Pala Singh and ors. Versus State of Punjab, 1994(1) Recent Criminal Reports 286 (P&H); Rajesh alias Pappu Versus State of Haryana, 1996(1) Recent criminal Reports 394 (P&H); Preet Singh Versus State of Punjab, 1996(1) Recent Criminal Reports 397 (P&H); Krishnan Versus State of Tamil Nadu, 2006(4) R.C.R. (Criminal) 824 (S.C.); Raj Pal and another Versus State of Haryana, 2007(3) R.C.R. (Criminal) 42 (S.C.) and Kishore alias Nand Kishore Versus State of Haryana, 2008(3) R.C.R. (Criminal) 537 (S.C.). On the other hand, learned counsel for the respondent-State contended with reference to the site plan, Exhibit PW4/D, that the injuries were caused in the fields of one Mithu Singh, which is at a distance of 1-1/2 killas from the place where the `Berry' tree was standing and this itself shows that the petitioners had followed the injured persons from where they were cutting the tree up to the fields of Mithu Singh and attacked them and in this view of the matter, the plea that the petitioners had acted in their self-defence cannot be accepted. That apart, he submitted that the petitioners were armed with sharp edged weapons and, therefore, had acted with a premeditated mind to cause injuries the injured persons. He argued that even if the plea of self-defence is to be accepted, then it is a moot question as to whether the same can be appreciated for the reason that there is no evidence led by the petitioners to that effect and nor was there any plea raised by them while recording their statements under Section 313 of the Cr.P.C. Besides, if both Gurdip Singh and Darshan Singh, injured persons, Crl.Revision Petition No.1227 of 1999 -8- .... retracted to the fields of Mithu Singh abandoning the place from where the tree was standing, then in such an eventuality also, the petitioners have clearly exceeded their right to self-defence and hence, they cannot escape the conviction awarded to them. I have thoughtfully considered the rival contentions/ submissions and have gone through the whole record as well as the judgments cited by the learned counsel for the petitioners. In my opinion, the testimony of PW1-Dr.Nazar Singh, who was also examined by the petitioners as DW2, assumes some significance as he had examined both the injured persons as well as petitioner-Bachan Singh. In his statement as PW1, he deposed that he had found the following injuries having been suffered by Darshan Singh and Gurdip Singh:- “Darshan Singh 1. Incised wound 3 cm x 2 cm at dorsal surface of left wrist joint. Underlying tendon were cut. Patient cannot dorsiflex his hand and radial deviation was absent. Fresh bleeding was present. Gurdip Singh 1. Incised wound 1cm x 0.5 cm at the left scapula. Fresh bleeding was present. 2. Incised wound 2 cm x 0.5 cm. present between index finger and thumb of left hand. Fresh bleeding was present. 3. Oblique incised wound present on Palmer surfe of right Crl.Revision Petition No.1227 of 1999 -9- .... index and middle finger of right starting from mid of space between inter pharyngal joint of ring finger crossing middle finger at the middle of inter pharyngal joint and index finger of the proximal inter pharyngal joint. Fresh bleeding was present. X-ray was advsied. 4. Incised wound measuring 8 cm x 4 cm present in the soleus region of the right of the right leg underlying structure cut partial bone cut. Posterior tivial vessel cut and perfusely bleeding.” While appearing as DW2, this witness has testified that petitioner -Bachan Singh was also medicolegally examined by him on 2.3.1991 and the following injury was found on his person:- “1. Incised wound 5cm x 3.5 cm into bone deep present on the top of skull. Fresh bleeding was present. Injury was kept under observation and for x-ray.” Strangely enough, the prosecution case did not take into its fold the aspect of the injury sustained by petitioner-Bachan Singh. This injury remained unexplained and this lends some credence to the case of the petitioners that they had acted in self-defence, but, at the same time, they themselves have also failed to establish their side of the story either by pleading the same while getting the statements recorded under Section 313 of the Cr.P.C. or by elaborating it by producing some evidence in defence. In this view of the matter, it becomes extremely difficult for the Court to examine afresh the point as to who was the aggressor amongst the two Crl.Revision Petition No.1227 of 1999 -10- .... parties so as to fix the culpability. Therefore, I am left with no option but to evaluate the evidence as led by the prosecution. The site plan on record shows that the incident took place at some distance away from the place where Gurdip Singh and Darshan Singh were allegedly cutting `Berry' tree which was standing on the ridge of the fields of the petitioners and the complainant party. This leads to the conclusion that the petitioners had followed the injured persons to some distance and in these circumstances, even if the plea of self-defence is to be accepted, then it appears that they had certainly exceeded their right of self- defence because the threat to their property had receded once the complainant and his sons retreated and there is no evidence on record that they had provided any further provocation to prompt a violent reaction from the petitioners. Consequently, they cannot escape the impact of the conviction awarded by the Courts below. However, it has come on record that petitioner-Bachan Singh was 65 years of age when the incident had taken place, while petitioners- Jagjit Singh and Balbir Singh were aged 26 years and 28 years, respectively. The incident pertained to the year 1991 and 18 years have elapse since then. The occurrence also appears to have taken place in the heat of moment when the dispute arose regarding the cutting of a tree. The petitioners have also not been shown to have committed any criminal act after the incident in question. Therefore, keeping in view the above facts, I am of the view Crl.Revision Petition No.1227 of 1999 -11- .... that no fruitful purpose would be served by sending the petitioners to jail at this stage and rather, in my opinion, they deserve the benefit of probation under the Act. Accordingly, this revision petition is disposed of in the following terms:- 1. The conviction of the petitioners as recorded by the trial Court and affirmed by the appellate Court shall remain intact. 2. The sentence awarded to the petitioners shall remain in abeyance and they shall be released on probation under Section 4 of the Act on their furnishing bonds in the sum of Rs.25,000/- each with a surety in the like amount before the trial Court, to keep peace and be of good behaviour within a period of one year. 3. In case, the petitioners violates the terms of the bonds so furnished, the sentence as awarded by the Court and affirmed by the appellate Court shall stand revived and they shall be required to undergo the remaining portion of the sentence. August 25,2009 ( Mahesh Grover ) “SCM” Judge