Criminal Appeal No. 584-DBA of 1999 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 584-DBA of 1999 Date of decision : 10.7.2008 State of Punjab .....Appellant Versus Maghar Singh and others ...Respondents **** 2. Criminal Revision No. 1331 of 1999 Jarnail Singh .....Petitioner Versus Maghar Singh and others ...Respondents **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. D.S. Brar, Deputy Advocate General, Punjab Mr. G.S. Gill, Advocate for the complainant. Mr. Sanjay Jain, Advocate as Amicus Curiae. S. D. ANAND, J. The State of Punjab has filed the present appeal to call into question the validity of finding of acquittal ( in favour of Maghar Singh, Gursewak Singh and Dilbagh Singh), recorded by the then Chief Judicial Magistrate, Ferozepur (hereinafter referred to as “Trial Magistrate”) in case FIR No. 176 dated 19.11.1994, Police Station, Ghall Khurd. Criminal Appeal No. 584-DBA of 1999 -2- **** The prosecution allegation, as culled out from the material on record, was as under:- On 18.11.1994, at about 2/2.30 P.M., PW-3 Jarnail Singh went over to have a round of the agricultural holding owned by him, which was situated near Bhambe Lande Road. He had sown Barseen crop in the land owned by him. That land of his was situated near certain land he had obtained on lease from his uncle Puran Singh. On reaching there, he found that respondents/accused Maghar Singh and his two sons namely Dilbag Singh @ Baggi and Gursewak Singh @ Sebi appellants were harvesting the barseen crop from his fields. At that point of time respondent Dilbag Singh was armed with a Kandhali and other two accused were armed with a sickle each. He forbade the respondents from harvesting the fodder from his fields. That act of his enraged the respondents/accused. Respondent Maghar Singh announced that he (PW-3 Jarnail Singh) would not be spared that day. Gursewak Singh respondent took Jarnail Singh into his grip, Maghar Singh caught hold of Jarnail Singh by his arm and Dilbag Singh respondent gave Kandhali blows, from its reverse side, on the right shoulder, left arm and head of Jarnail Singh. The last indicated blow was given horizontally. Respondent Dilbag Singh also gave a Kandhali blow on the left leg of Jarnail Singh which (blow) felled him upon the ground. A raula raised by Jarnail Singh attracted Harmit Singh and Gurdarshan Singh to the spot. Respondents/accused fled the spot and carried along the weapon of offence. Initially, Jarnail Singh was brought to the village dispensary by his father Bhag Singh Criminal Appeal No. 584-DBA of 1999 -3- **** and brother Gurdarshan Singh and Harmit Singh. He was, thereafter, got hospitalised at Civil Hospital, Ferozepur, where he was medico legally examined. Bhag Singh, father of Jarnail Singh, had initiated partition proceedings in respect of ancestral land against respondent Maghar Singh who, along with other respondents, was pressurising Bhag Singh to withdraw those proceedings from the revenue Court. The prosecution examined PW1 Dr. Jagbir Singh, PW-2 SI Sarwan Singh, PW-3 Jarnail Singh, PW-4 Gurdarshan Singh, PW-5 Bhag Singh, PW-6 Harmit Singh, PW-7 Prem Chand at the trial. PW-1 Dr. Jagbir Singh (then posted as EMO, Civil Hospital, Ferozepur) had medico legally examined Jarnail Singh ( on a reference from PHC, Ferozeshah vide OPD No. 4970 dated 18.11.1994) on 18.11.1994 at 3.45 P.M. and had found the following injuries on his person:- “1. Lacerated wound 3.5 cm X 0.75 cm on the left parietal region with under lying swelling 7 cm X 5.5 cm, 8 cm above left pinna. Fresh bleeding was present. 2. Reddish contusion 8 cm X 2 cm on the outer aspect of the upper part of right arm. Injury was obliquely placed. 3. Diffuse swelling 3.5 cm X 3 cm on the back and middle of left forearm with overlying abrasion 0.25 cm ?X 0.25 cm. Criminal Appeal No. 584-DBA of 1999 -4- **** 4. Incised wound 2.5 cm x 1 cm on fronto medial aspect of lower part of left leg. Fresh bleeding was present Injury was bone deep. Underlying bone was cut.” PW-2 SI Sarwan Singh had investigated this case. PW-3 Jarnail Singh is the injured/first informant. PW-4 Gurdarshan Singh is real brother of PW-3 Jarnail Singh, who had been attracted to the spot by the raula raised by Bhag Singh and had witnessed impugned occurrence, along with Harmit Singh. PW-5 Bhag Singh is father of Jarnail Singh, who reached the spot on getting information about Jarnail Singh having been belaboured by the respondents/accused and who joined Gurdashan Singh and Harmit Singh in taking Jarnail Singh to the Civil Hospital, Ferozepur. PW-6 (last indicated) is a cousin brother of Jarnail Singh and Gurdarshan Singh. PW-7 Prem Chand, an official in the Arms Branch of D.C. Office, Ferozepur, proved the pendency of partition proceedings titled Bhag Singh son of Isher Singh son of Warayam Singh Vs. Maghar Singh, Gurcharan Singh, Mohan Singh, Puran Singh son of Isher Singh, Jugraj Singh son of Sampuran Singh in the Court of Assistant Collector, Ferozepur. Respondents/accused denied the prosecution allegation and alleged false implication in the case. No evidence was adduced in defence. Criminal Appeal No. 584-DBA of 1999 -5- **** The learned Trial Magistrate recorded a finding of exoneration on the following counts:- i) The prosecution had not been able to explain why Jarnail Singh was not got medico legally examined at Primary Health Centre, Ferozeshah. In the context, it is pointed out that Investigating Officer had testified that he did not consider it necessary to obtain the copy of MLR conducted at PHC aforementioned; whereas Bhag Singh had informed the Court that Jarnail Singh could not be medico legally examined at the PHC aforementioned as no Doctor was available on account of that day being a holiday; ii) The prosecution has not been able to prove that Jarnail Singh had sustained a grievous injury. The prosecution did not get the injuries found on the person of Jarnail Singh x-rayed; iii) The medical evidence is not in conformity with the ocular presentation. In that context, it is argued that Medical Officer had testified that “injury No. 4 is possible if weapon is parallel to the ground and at the lower level i.e. Below knee.” Learned State counsel argues that entire line of reasoning adopted by the learned Trial Magistrate for recording a finding of acquittal proceeds on factually incorrect premise. In that context, it is argued that MLR (Ex. PA) proved by PW-1 Dr. Jagbir Criminal Appeal No. 584-DBA of 1999 -6- **** Singh duly notices that the patient had been referred by PHC, Ferozeshah vide OPD No. 4970 dated 18.11.1994. It is also argued the defence presentation about innocence is falsified by the fact that there is clear statement of PW-3 Jarnail Singh injured that injury no. 4 had been inflicted by Dilbag Singh by bending himself. Learned counsel for the respondents/accused while adopting the line of reasoning adopted by the learned Trial Magistrate, argues that the prosecution version being supported by only relation witnesses does not inspire confidence, particularly when it is not corroborated by any independent evidence. We have considered the records in the light of submissions made by the learned counsel for the parties. We are of the considered view that impugned finding cannot be upheld. The reasons therefor are as under:- As would be evident from a perual of MLR ( Ex. PA) itself, there is a precise noting that the injured was being medico legally examined on a reference vide OPD No. 4970 dated 18.11.94. In that view of things, it was illogical for the learned Trial Magistrate to have doubted the bonafides of the prosecution presentation. We cannot presume any malafides on the part of the investigating agency just because one witness made a statement that Doctor at the PHC, Ferozeshah was not found available. We have no reason to disbelieve the record-based endorsement made by PW-1 Dr. Jagbir Singh in the context. The number and nature of injuries, found in the course of medico legal examination, had been indicated by Dr. Jagbir Singh Criminal Appeal No. 584-DBA of 1999 -7- **** PW-1 who also deposed on oath that he had tendered opinion Ex.PC on a police request. It requires pertinent notice that he had opined that “weapon used was sharp for injury No. 4.” He further testified that “injury no. 4 was visible to the naked eye on the appearance of the patient.” The above statement made by PW-1 Dr. Jagbir Singh is to be appreciated in the light of opinion (Ex. PC) given by him to the effect that “though I have not mentioned name of the bone. The area which was injured correspond with tibia bone. There is no need to mention dimension of cut. There was no need to advise x-ray as I had no doubt whatsoever about the cut on the bone. X-ray is advised only in doubtful cases.” The deposition on oath of Dr. Jagbir Singh PW01 read in conjunction the above quoted opinion given by him on the police request, leaves no manner of doubt that injury no. 4 found on the person of Jarnail Singh was grievous in character. In view of the categorical testimony of Dr. Jagbir Singh PW-1 explaining the nature of injury no.4, it was not incumbent for the prosecution to get that injury x-rayed. The resort to radiological examination is obviously not always compulsory. The examining Medical Officer may otherwise order the radiological examination of an injured if the nature of injury is not evident to a naked eye. Insofar as the grievance noticed at item No. 3 is concerned, there also the finding recorded by the learned Trial Magistrate is not in accord with the facts available on the file. The observation made by learned trial Magistrate in the context is oblivious of the statement made by PW-3 Jarnail Singh that “injury Criminal Appeal No. 584-DBA of 1999 -8- **** was inflicted by Dilbag Singh by bending himself.” That statement made by Jarnail Singh PW-3 was in response to a question which was in the context of injury no.4. We also do not find any fault with the prosecution plea just because it is supported by the testimony of relation witnesses. There is plethora of law on the point that the testimony of relation witnesses need not be out rightly discarded. There could, however, be an eventuality where the Court may come to entertain some bit of a doubt about the veracity of deposition made by the relation witnesses. In that eventuality, it would be prudent to base conviction only if the testimony of relation witnesses is corroborated by independent evidence. In the present case, we find the presence of relation witnesses at the spot to be natural on account of their close relationship with the injured first informant. They would obviously most interested in ensuring that persons who assaulted their relation should get punished at the hands of law. In the context, it would be appropriate to notice that there was no challenge to the averment at the hands of the respondents that injuries found on the person of Jarnail Singh were self suffered or may have been caused by a friendly hand. The nature of injury No. 4 would not, even otherwise, permit any such inference. In the totality of the circumstances of the case, we have no reservations in holding that the finding of acquittal recorded by learned Trial Judge deserves to be reversed and it is so ordered ordered accordingly. The appeal filed by the State of Punjab, and Criminal Appeal No. 584-DBA of 1999 -9- **** also the revision filed by Jarnail Singh complainant/first informant for that very relief, shall stand allowed. The respondent/accused Dilbag Singh shall stand convicted for the offence under Section 326 IPC; while respondents/accused Maghar Singh and Gursewak Singh shall stand convicted under Section 326 read with Section 34 IPC. We have also heard learned counsel for the parties in the matter of sentence. In view of the fact that impugned occurrence had taken place in the year 1994. The trial had taken about five years to conclude. The appeal has been pending since 1999. In the peculiar circumstances of the case, we sentence Dilbag Singh to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 50,000/-; In default of payment of fine, he shall undergo further rigorous imprisonment for a period of six months. Insofar as the other respondents/accused namely Maghar Singh and Gursewak Singh are concerned, they shall stand sentenced to the period already undergone by them. In addition thereto, they shall pay a fine of Rs. 25,000/- each; In default of payment of fine, they shall undergo rigorous imprisonment for a period of three months each. Fine, if realised shall be paid to Jarnail Singh PW-3. ( S. D. ANAND ) JUDGE July 10, 2008 (ADARSH KUMAR GOEL) Pka JUDGE Criminal Appeal No. 584-DBA of 1999 -10- ****