CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1740-SB of 2002 Date of Decision : 17.09.2010 Balwinder Singh and others .......Appellants Versus State of Punjab .......Respondent AND Criminal Appeal No.1803-SB of 2002 Balwinder Singh .......Appellant Versus State of Punjab .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. D S Pheruman, Advocate, for the appellant(s). Mr. J S Bhullar, AAG, Punjab. **** JITENDRA CHAUHAN, J. 1 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 1. This judgment of mine shall dispose of two appeals, namely, CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002, as the same are related to same incident and are cross versions. However, the facts are being derived from CRA No.1740-SB of 2002. 2. The present appeal has been directed against the judgment of conviction dated 4.9.2002 and order of sentence dated 5.9.2002 (hereinafter as ‘impugned judgment’) passed by learned Additional Sessions Judge, Gurdaspur (hereinafter as ‘trial Court’), whereby the accused-appellants, namely, Balwinder Singh @ Binda @ Nihang, Mukhtiar Singh @ Mukha and Soni, have been convicted and sentenced to the following effect:- Balwinder Singh @ Binda @ Nihang To undergo R.I. for seven years and to pay a fine of Rs.2000/- and in default of payment of fine, to further undergo R.I. for two months u/s 307 IPC Mukhtiar Singh @ Mukha To undergo R.I. for five years and to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo R.I. for one month u/s 307/34 IPC Soni To undergo R.I. for five years and to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo R.I. for one month u/s 307/34 IPC 3. The brief facts of the present case, as projected by prosecution and narrated in the impugned judgment, read as under:- “Brief facts of the prosecution case are that on 28.6.2000, a message was recovered from police station, City Batala that Ranjit Singh son of Mehar 2 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 Singh, resident of village Barriar, is admitted in the Civil Hospital in injured condition. Pursuant to the message, ASI Makhan Singh went to Civil Hospital, Batala, after procuring the MLR pertaining to Ranjit Singh. He came to know that Ranjit Singh, has been transferred to Guru Nanak Dev Hospital, Amritsar. ASI Makhan Singh, along with other police officials went to Guru Nank Dev Hospital, Amritsar and moved an application to the concerned doctor for recording the statement of Ranjit Singh. However, doctor declared the injured to be unfit for recording the statement. On 30.6.2000 ASI Makhan Singh along with other police officials, again went to Guru Nanak Dev Hospital, Amritsar and got the certificate regarding the fitness of Ranjit Singh, injured from the concerned doctor. Thereafter, he recorded the statement of Ranjit Singh son of Mehar Singh, complainant, to the effect that he is resident of village Barriar and is an agriculturist. On 28.6.2000, he went to watch the Kabaddi match played by the boys of his village in the fields of Master Gurcharan Singh. When he reached there, Balwinder Singh @ Binda @ Nihang armed with Barchhi, Mukhtiar Singh @ Mukha son of Lachhman Singh, empty handed and Soni son of Sawaran Singh, were present there. Accused, Soni exhorted the other accused to settle the score with the complainant as the brother of the complainant had murdered his father. 3 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 Thereafter, Mukhtiar Singh caught hold of him from the hair and Balwinder Singh @ Binda @ Nihang, gave Barchhi blow in the left flank of the complainant and he fell down on the ground. Pursuant to the alarm raised by him, Daljit Singh son of Kehar Singh raised hue and cry asking the accused to spare Ranjit Singh. On hearing the alarm, Santokh Singh, former Sarpanch reached there and thereafter, all the accused fled away from the site of the occurrence. Due to the injuries inflicted on his person, he become unconscious. Santokh Singh, former Sarpanch removed him to Civil Hospital, Batala from where the doctor referred him to Guru Nanak Dev Hospital, Amritsar, due to his critical condition, where he was medico-legally examined. His statement was recorded by the police on the basis of which formal FIR of this case was registered. Then the I.O. ASI Makhan Singh, visited the place of occurrence and prepared the rough site-plan. On 9.7.2000, a written information was received from the doctor, wherein he described the injury on the person of the complainant as dangerous to life. Resultantly, offence punishable under section 307 IPC was added in the FIR. On 22.7.2000, accused Balwinder Singh @ Binda @ Nihand and Mukhtiar Singh alias Mukha, were arrested and produced before the Ilaqa Magistrate. During investigation, accused Balwinder Singh alias Binda alias Nihang got recovered the 4 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 Barchhi, used by him in the commission of this offence as a result of disclosure statement. Resultantly, a separate case u/s 25 of the Arms Act was also registered against the accused Balwinder Singh. Accused Soni, was also arrested on 24.7.2000…..” 4. On completion of the investigation, the accused were charge-sheeted for the commission of offence punishable under Section 307 read with Section 34 IPC to which they pleaded not guilty and claimed trial. 5. In order to substantiate its case, the prosecution examined as many as 9 witnesses, namely, Ranjit Singh, complainant/injured as PW1; Dalit Singh, eye-witness as PW2; SI Harbhajan Singh, who prepared the report u/s 173 Cr.P.C. of this case, as PW3; H C Ranjit Singh, who delivered the special report of this case to the higher authorities including the Ilaqa Magistrate, as PW4; HC Darshan Singh, a witness of recovery of Spear (Barchhi), from the possession of the accused, as PW5; Satish Chander, Draftsman, who prepared the scaled site-plan Ex.PW6/A of the place of occurrence, as PW6; Dr. Gurmit Singh, who medico-legally examined the injured Ranjit Singh as PW7; Dr. Sudarshan Kapur, Senior Lecturer, Medical College, Amritsar, who conducted the surgery of injured Ranjit Singh as PW8 and ASI Makhan Singh, I.O., as PW9. 6. Thereafter, the accused were examined under Section 313 Cr.P.C. while putting all the incriminating circumstances appearing against them in the prosecution evidence wherein they denied all the allegations and pleaded innocence. The accused examined Dr. 5 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 Harbhajan Singh, DW1, who medico-legally examined Balwinder Singh; accused Balwinder Singh himself appeared as defence witness; Dalbir Kaur, widow of Sarwan Singh as DW3 and Gurcharan Singh, brother of Balwinder Singh as DW4. 7. After hearing learned counsel for both the parties, learned trial Court has convicted and sentenced the accused-appellants for the offence and term as indicated at the outset of this judgment. 8. Learned counsel has submitted that there is inordinate and unexplained delay of about 2 days in lodging the FIR. 9. The further submission is that the injuries on the person of accused-Balwinder Singh have not been explained by the prosecution which makes the prosecution story highly doubtful. The accused-Balwinder Singh suffered five injuries on his person in the occurrence. Dr. Harbhajan Singh, DW1, Medical Officer, has proved MLR, Ex.DA, and the X-ray report, Ex.DB in this regard. Dalbir Kaur, DW3, widow of Swaran Singh filed a complaint against the complainant party in the present case before the Court of Judicial Magistrate 1st Class, Batala. 10. Learned counsel has further argued that the occurrence took place when a Kabaddi match was going on in the village, however, no independent witness has been examined in the present case. Ranjit Singh, PW2, is an interested witness being close relation of the complainant-Daljit Singh. He has further submitted that there is only one injury caused by the accused Balwinder Singh on the person of the complainant. Therefore, it is proved that the accused had no 6 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 intention to kill the complainant and in the absence of such intention, the case under Section 307 IPC is not made out. 11. On the other hand, learned counsel for the State has argued that the complainant-Ranjit Singh, PW1 has given the details of the injuries suffered by him at the hands of the appellant. Daljit Singh, PW2, is an eye-witness to the occurrence and he has fully supported the case of the prosecution. The complaint moved by Daljit Kaur, DW3, against the present complainant stands dismissed, as admitted by her. The injuries suffered by Balwinder Singh-appellant, are simple in nature and the prosecution is not bound to explain the same. Therefore, he has prayed for maintaining the judgment of conviction and order of sentence against the appellant passed by the learned trial Court. 12. I have heard learned counsel for the parties and perused the case. 13. As regards delay in recording the statement of injured, it has come in the statement of the Makhan Singh, I.O., PW9, that the injured was not fit to make statement on 28.06.2000 and as such it was only when he regained consciousness on 30.6.2000 and his statement was recorded on the same day by the Police without any delay. In this circumstance, no delay can be attributed on the part of the prosecution because no time has elapsed in recording the statement of the injured after he regained his consciousness. 14. All the five injuries on the person of Balwinder Singh were found to be superficial. Dr. Harbhajan Singh, DW1, has admitted in his cross-examination that the possibility of these injuries 7 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 being caused with friendly hands cannot be ruled. All the injuries are simple in nature. Moreover, this stand of the appellant further seems to be improbable as the injuries were stated to be received by him on 28.6.2000 but he was admitted in Civil Hospital on 30.6.2000 at 6.55 pm, as is evident from the MLR, Ex.DA, therefore, it appears that all the injuries on the person of this appellant were with friendly hands and to create defence. The complaint filed by Dalbir Kaur, DW3, on these allegations, was dismissed in default by the Court of Judicial Magistrate, 1st Class, Batala. No effort was made by the appellants to get the same restored or to file a fresh complaint. Thus, the conduct of the appellants goes to show that they had no genuine case in their complaint and the injuries being simple and caused with friendly hands. In cases, where the injuries are simple and caused by friendly hands, the prosecution is not bound to explain the same. It is only in the cases where serious injuries on the person of the accused are noticed, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries so as to satisfy the Court as to the circumstances under which the occurrence originated. However, this principle is applicable only when the injuries on the person of the accused are very grievous and severe and not superficial; and it must be shown that these injuries must be caused at the time of the occurrence in question. However, in the instant case, the injuries were caused with friendly hands and were found superficial, therefore, the prosecution was not bound to explain the injuries on the person of the appellant. 8 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 15. As regards the argument that only interested witnesses have been examined, under law there is no bar that the relations or the family members of the injured are not proper witnesses. The presence of eye-witness, Daljit Singh, PW2, is established on record and the accused-Balwinder Singh, has also admitted his presence, therefore, this Court is of the considered view that Daljit Singh is a good and proper witness and by no stretch of imagination, he can be said to be an interested witness. 16. As regards the argument that case under Section 307 IPC is not made out as there was no intention to eliminate the injured and only solitary injury was caused, I do not find any merit in this argument as the intention, seat of injury, weapon used and force applied, are the guiding factors, which are present in the instant case. 17. From the facts on record, it is made out that a Kabaddi match was being played in the village on 28.6.2000 in the fields of Master Gurcharan Singh. When the complainant reached there, Balwinder Singh @ Binda @ Nihang armed with Barchhi, Mukhtiar Singh @ Mukha son of Lachhman Singh, empty handed and Soni son of Sawaran Singh, were present there. Accused Soni exhorted them to settle score with the complainant as the brother of the complainant had murdered his (Soni’s) father. Thereafter, Mukhtiar Singh caught hold of him from hair and Balwinder Singh @ Binda @ Nihang gave a Barchhi blow on the left leg of the complainant and he fell down on the ground. 18. From the case of the prosecution, it emerges that the injured, Ranjit Singh, went there to watch the Kabaddi match. The 9 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 appellants happened to be already present there. Accused Mukhtiar Singh and Soni were empty-handed. Appellant-Balwinder Singh who was armed with Barchhi, caused injury with the said Barchhi which was declared dangerous to life which is duly proved from the Ex.PW7/C. The seat of injury is abdomen. Therefore, I am of the considered view that the case of the prosecution qua appellant No.1- Balwinder Singh, is fully proved and, therefore, no interference in the judgment/order dated 5.9.2000 passed by the learned trial Court, convicting and sentencing him, is called for. 19. Accordingly, appeal qua appellant No.1 is dismissed. He is stated to be on bail. His bail bonds shall stand forfeited. He be taken into custody forthwith to suffer the remaining sentence. 20. However, appellants-Mukhtiar Singh, who was 65 years of age and Soni who was a student and aged 18 years, were empty- handed. No injury is attributed to them, therefore, they are acquitted of the charges against them by giving them the benefit of doubt. Both of them are stated to be on bail. Their bail bonds shall stand discharged. 21. Ordered accordingly. 22. CRA No.1803-SB of 2002 is filed by the accused- Balwinder Singh for having been convicted under Section 25 of the Arms Act in FIR No.93 of 2000 registered at Police Station, Ghuman, in the same incident. According to the submission made by learned counsel for the appellant, the appellant was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month. Learned counsel has 10 CRA No.1740-SB of 2002 and CRA No.1803-SB of 2002 submitted that the appellant has already undergone the entire period of sentence, therefore, the present appeal has been rendered infructuous. 23. Accordingly, CRA No.1803-SB of 2002 is dismissed as having become infructuous. 24. Since the main appeals are decided by this judgment, therefore, the misc. applications pending, if any, shall also stand disposed of. ( JITENDRA CHAUHAN ) 17.09.2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No 11