Crl.Appeal No. 664-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.664-SB of 1999 Date of decision: 26.7.2010 Kulwant Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mrs.Baljit Kaur Mann, Advocate, for the appellant. Mr.Arshvinder Singh, DAG, Punjab. ... JORA SINGH, J. Kulwant Singh and Gian Kaur were sent up for trail by the SHO of Police Station Banga, on the allegation that on the intervening night of 21/22.7.1997 at about 11.30 PM and 12.15 AM, they had caused injuries to Shingara Singh. By the impugned judgment of conviction and order of sentence dated 13.7.1999 rendered by Additional Sessions Judge, Nawanshahar, arising out of FIR No. 75 dated 23.7.1997, Police Station Banga, under Sections 307/323/34 IPC and Section 27 of Arms Act, appellant was convicted under Section 326 IPC and sentenced to undergo RI for three years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for six months. Co-accused Gian Kaur was acquitted of the charge levelled against her. Against acquittal, no appeal by the State. Prosecution story, in brief, is that Shingara Singh, resident of Village Gobindpur, reported to ASI Jarnail Singh that there was a passage by the side of fields of Gian Kaur leading to his fields. About 4 years back, Crl.Appeal No. 664-SB of 1999 2 Gian Kaur had made an effort to illegally occupy the passage. Civil Suit was instituted and there was a stay in his favour. Passage was being used by him. On 21.7.1997, he was sleeping in his house and at about 11.30 PM, he woke up to have a round of his cattle. While present near the road, then sighted one tractor being driven in the fields of Gian Kaur. He suspected that passage would be ploughed. He had gone towards the fields and at about 11.45 PM, noticed that passage has been ploughed with tractor. He came in front of the tractor and signalled Kulwant Singh to stop the tractor and enquired as to why he has ploughed the passage. Kulwant Singh after alighting from the tractor gave a push to the complainant with great force. Then he had a fall on his back. While lying on the ground, Gian Kaur had caught hold him from his long hair. Kulwant Singh questioned as to why he prevented him from ploughing the passage. Kulwant Singh drove the tractor forward and he was run over by the said tractor. He received injuries on his legs. After that, Kulwant Singh and Gian Kaur drove away the tractor towards their house. With injuries on his person, he came to his house. At about 12.15 AM, he was about to pass in front of the house of Kulwant Singh, then noticed that Kulwant Singh had parked his tractor in his courtyard with its lights on. Kulwant Singh was standing by the side of his tractor, armed with his .12 bore licenced gun. Kulwant Singh had fired a shot with an intention to eliminate him. He had made an effort to save himself. Pellets of shot had hit him on his left arm, right side of his abdomen and left hand. Raula was raised and had gone towards his house. After reaching his house, incident was brought to the notice of his son Sukhdev Singh. After arranging vehicle, he was shifted to Civil Hospital, Banga, by his son Sukhdev Singh. Motive to cause injury was that he had Crl.Appeal No. 664-SB of 1999 3 restrained Kulwant Singh from ploughing the passage. After making endorsement (Ex.PE/1), statement of Shingara Singh was sent to the police station, on the basis of which, formal FIR (Ex.PE/2) was recorded. On 22.7.1997, ASI Jarnail Singh, Investigating Officer, moved application (Ex.PL) before the doctor for obtaining his opinion regarding fitness of Shingara Singh to make statement. Injured was declared unfit to make statement. On 23.7.1997, Investigating Officer had moved application (Ex.PM) requesting the doctor to opine as to whether injured was fit to make statement or not. Injured was declared fit to make statement. Then his statement (Ex.PE) was recorded. Investigating Officer had gone to the place of occurrence. Rough site plan with its correct marginal notes was prepared. On 16.9.1997, Kulwant Singh and Gian Kaur were arrested. Tractor bearing registration No.PB-32-2433 was taken into police possession vide memo (Ex.PO) attested by the witnesses. RC of the tractor was also taken into police possession vide memo (Ex.PF). Kulwant Singh in pursuance of his disclosure statement (Ex.PQ), got recovered .12 bore double barrel gun (Ex.P1), one empty (Ex.P2) and licence of the gun from the disclosed place. Rough site plan showing the place of recovery of gun and empty was prepared. On return to the police station, case property was deposited with the Incharge of Malkhana. After completion of investigation, challan was presented in the Court. Accused were charged under Sections 323/307/34 IPC and Section 27 of the Arms Act, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined PW1 Crl.Appeal No. 664-SB of 1999 4 Dr.Devinder Kaur, who had medico legally examined Shingara Singh on 22.7.1997 at 1.35 AM and found the following injuries on his person:- “1. There were about 35 lacerated wounds with inverted margins of the size of 0.3 cm x 3 cm each on the anterio- lateral aspect of left forearm in an area of 21 cm, on vertical directions and 11 cm in horizontal direction. The lower most wound was 2 cm above the wrist joint and upper most was 3 cm below the elbow joint. Margins were scorched and blackened, covered with fresh clots of blood and there were 7 lacerated wounds with everted margins of the size of .4 x .4 cm each over the back of left forearm in an area of 8 cm in vertical direction and 6 cm in horizontal direction. The lower most wound was 9 cm above the wrist joint and upper wound was 8 cm below the elbow joint covered with fresh clots. There was no tatooring and adjacent hair was not signed. Advised x-ray and kept under observation. 2. Lacerated wound 0.3 cm x 0.3 cm with inverted scorched and blackened margins on the dorsum of left hand, 1 cm above the web of thumb and index finger, covered with fresh clots of blood. Advised x-ray and kept under observation. The adjacent hair were not signed and no tatooring. 3. Reddish abrasion of the size of 2 cm x 4 cm on the front of abdomen on right half lower and of abrasion was 5 cm from mid line of abdomen and 11 cm above pubic Crl.Appeal No. 664-SB of 1999 5 symphosis from the lower end and it ran upwards and outward. Margins were scorched and blackened, freshly oozing blood, kept under observation. 4. Reddish abrasion 3 cm x 2.5 cm on the back of left forearm 9 cm above the wrist joint, oozing blood. 5. Reddish abrasion 1 cm x 4 cm on the dorsum of left hand, 4 cm proximal to second metacarpo-phalangeal joint. Fresh oozing blood. 6. Reddish abrasion 2.8 cm x 1 cm horizontal over the back of left thigh, 21 cm above the knee joint, freshly oozing blood. 7. Lacerated wound 24 cm x 5 cm x bone deep on the anterio-medial aspect of left leg. Upper end of wound over shin of tibia, 13 cm below the lower border of patella and from the upper end, it ran downward and medially, covered with fresh clots of blood. Advised x- ray. 8. Diffused reddish swelling over the dorsum and sides of left foot and ankle joint of the size of 15 cm, vertically and 16 cm horizontally upper border of the swelling is at the level of upper border of both malcoti. Advised x-ray. 9. Lacerated wound 8 cm x 2 cm x muscle deep over the lateral aspect of left thigh. The lower end of wound was 1 cm above the knee joint and from the lower end, it ran upward and medially, covered with fresh clots of blood. 10. 3 reddish abrasions on the front of left knee joint of the Crl.Appeal No. 664-SB of 1999 6 sizes of 3 cm x 4 cm oblique, 2 cm x 4 cm horizontal and 2.5 cm x 6 cm horizontal, slightly oozing blood. Advised x-ray.” Injury No.1 was declared grievous in nature, whereas other injuries were found to be simple in nature. PW2 Dr. S.C.Dhir had medico legally examined Shingara Singh on 23.7.1997 and found the following injuries on his person:- “1. Multiple metallic foreign bodies radio opaque seen in the left forearm and fracture of radius bone seen at the junction of upper 2/3 and lover 1/3 rd. No callous formation was seen. 2. Single metallic radio opaque foreign body was seen in the left hand. 3. No other fracture was seen on the part x-rayed.” PW3 Shingara Singh, injured, stated that on the intervening night of 21/22.7.1997 at 11.00 PM, he came out of his house to see cattle and had heard noise of a tractor from the fields. He had gone to the spot, then noticed Kulwant Singh while ploughing the fields of Gian Kaur. He had signalled Kulwant Singh to stop the tractor. After alighting from the tractor, Kulwant Singh gave a push to him, as a result of which, he fell down on the ground. Gian Kaur had caught hold him from his long hair. He was run over by the tractor driven by Kulwant Singh. After that, Kulwant Singh and Gian Kaur had fled away from the spot with tractor. He was going back to his house and was near the house of Kulwant Singh, then Gian Kaur instigated Kulwant Singh to shoot him. Kulwant Singh had fired a shot with his double barrel gun hitting him on his left forearm and Crl.Appeal No. 664-SB of 1999 7 right side of abdomen. He raised raula and came to his house. His son Sukhdev Singh had arranged a vehicle and shifted him to Civil Hospital, Banga, where he was medico legally examined. He remained admitted in the hospital for about 20/22 days. Investigating Officer appeared as PW10. Statements of remaining witnesses are of formal nature. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of accused Gian Kaur was that Shingara Singh claimed passage through her land. Passage was not provided. Litigation was going on and due to that litigation, she was falsely implicated in this case. Accused Kulwant Singh pleaded that Shingara Singh claimed passage from the land of Gian Kaur. Passage was not provided. Litigation was going on at the time of alleged occurrence and he was cultivating the land of Gian Kaur for the last 10 years. Due to this reason, Shingara Singh nursed a grudge against him. Opportunity was given to lead defence evidence, but no defence was led. After hearing learned Public Prosecutor for the State and learned defence counsel for the accused and from the perusal of evidence on file, appellant was convicted and sentenced as stated aforesaid. I have heard learned counsel for the appellant and learned State counsel and gone through the evidence on file. Learned counsel for the appellant argued that appellant is the Crl.Appeal No. 664-SB of 1999 8 real nephew of Shingara Singh, injured. There was compromise amongst the parties on 25.7.1997 but after compromise, Shingara Singh appeared in Court and supported the prosecution story. While appearing in Court, Shingara Singh stated that there was no compromise with the appellant. Gian Kaur owned land and by the side of her land, there was a passage to approach the land of Shingara Singh. Land of Gian Kaur was under the cultivation of Kulwant Singh, appellant. Shingara Singh suspected that while ploughing the land, passage was to be encroached upon by the appellant and Gian Kaur. There was a civil litigation amongst the parties and if intention was to illegally occupy the passage, then there was no idea to contest the civil suit. Qua first occurrence, appellant was acquitted. According to second occurrence at about 12.15 AM on the intervening night of 21/22.7.1997, appellant fired a shot from a distance of 7/8 karams, hitting Shingara Singh. Scorched wounds were noticed. Shot was not repeated by the appellant. Only one injury was found to be grievous in nature. Injury was not on the vital part. Argued that injured is in foreign country. Appellant remained in custody for some time. Occurrence was in the month of July, 1997, and at that time, appellant was 58 years' old. At present, he is about 70 years' old. Appellant was Sarpanch and he lost the post of Sarpanch due to conviction. He has already faced the agony of trial and appeal for the last 13 years. Impugned judgment is not challenged on the point of conviction. Requested to take lenient view on the point of sentence. Appellant is to become hard criminal if again sent to jail. He is ready to compensate the injured. Learned State counsel argued that firstly at about 11.30 PM, injuries were caused by the appellant to the complainant. After causing Crl.Appeal No. 664-SB of 1999 9 injuries, appellant had fled away from the spot with tractor. After receipt of injuries when Shingara Singh was near the house of appellant, then appellant armed with .12 bore gun had fired a shot hitting the injured. Number of injuries were noticed on the person of Shingara Singh, but only one injury was found to be grievous in nature. Shingara Singh is the uncle of appellant. Evidence on the file was rightly scrutinized. Evidence on the file shows that Gian Kaur owned land and the land was under the cultivation of Kulwant Singh. There was a passage adjoining the land of Gian Kaur to approach the land of Shingara Singh. There were two occurrences, but qua the first occurrence, appellant was acquitted. Second occurrence was at 12.15 AM on the intervening night of 21/22.7.1997 and qua second occurrence, Gian Kaur was acquitted of the charge levelled against her. Shingara Singh appeared in Court and stated on oath that appellant had fired a shot hitting him. Doctor while appearing in Court noticed fire arm injury on the person of Shingara Singh. Evidence shows that single shot was fired from a distance of 7-8 karams hitting Shingara Singh. Scorched wounds were noticed. During trial, compromise was produced admitting this fact that there was a dispute but parties being related to each other, have effected compromise. Meaning thereby, at 12.15 AM on the intervening night of 21/22.7.1997, appellant had fired a shot hitting Shingara Singh. Evidence on the file was rightly scrutinized by the trial Court. No reason to differ with the opinion of the trial Court. Judgment of the trial Court on the point of conviction is upheld. Crl.Appeal No. 664-SB of 1999 10 Occurrence is dated 21/22.7.1997. At that time, appellant was 58 years' old. Shot was fired from a distance of 7-8 karams and was not repeated. At present, appellant is about 70 years' old. Appellant and the injured are related to each other. Injury was not on the vital part. Appellant is the first offender. Appellant is to become hard criminal if again sent to jail to undergo imprisonment as ordered by the trial Court. Appellant remained in custody for 14 days. In 2004(3) RCR (Crl.) 372, Maha Singh and others vs. State of Haryana, conviction was under Section 307 IPC. Accused faced trial and appeal for 15 years. Accused were 71 years, 60 years and 48 years old, respectively. Sentence was reduced to already undergone (three months). In 2004(4) RCR (Crl.) 514, Gurdip Singh and others vs. State of Punjab, conviction was under Section 307 IPC. Appellants had already undergone some part of sentence. They were living peacefully and have not participated in any such act after the occurrence. Held that sending the appellants to jail once again after the lapse of so many years would amount to reopening the wounds which might have healed by now. Sentence was reduced to already undergone, but fine was enhanced from Rs.1,000/- to Rs.10,000/-, to be paid to the injured. Keeping in view the facts of the case, I am of the opinion that ends of justice would be fully met if lenient view is taken. Hence, instead of directing the appellant to undergo imprisonment as ordered by the trial Court, he is directed to undergo imprisonment already undergone (14 days) and to pay Rs.25,000/- more as fine. Fine is to be deposited within two months before the trial Court and is to be paid to injured Shingara Singh as compensation. Crl.Appeal No. 664-SB of 1999 11 For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. 26.7.2010 ( JORA SINGH ) pk JUDGE