IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2636 of 2008 Date of decision: 9th March, 2010 Rinku alias Shri Bhagwan and another … Petitioners Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Rajesh Lamba, Advocate for the petitioners. Mr. Manish Deswal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Rinku alias Shri Bhagwan son of Om Parkash and Billu alias Ramdhan son of Shri Raghubir. They, along with Raju, declared as proclaimed offender, were named as accused in case FIR No.144 dated 13.04.1999 registered at Police Station City Fatehabad under Sections 323, 325, 34 IPC. The Court of Chief Judicial Magistrate, Fatehabad held the petitioners guilty of offence under Section 323 read with Section 34 IPC and Section 325 read with Section 34 IPC, and sentenced them to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/- each under Section 323 read with Section 34 IPC. In default of payment of fine, they were ordered to further undergo rigorous imprisonment for 15 days. The petitioners were also sentenced under Section 325 read with Section 34 IPC to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- each, in default of payment of fine to further undergo rigorous imprisonment for one month. Both the sentences were ordered to run concurrently. Criminal Revision No.2636 of 2008 Aggrieved against the same, petitioners had filed an appeal. The appellate Court upheld the conviction, maintained the sentence and had dismissed the appeal. The only question, which this Court has been called upon to consider is as to whether on the facts of the present case, Section 34 IPC is attracted or not? In the present case, FIR was registered on the statement Ex.PA made by Shakuntla PW-1 to ASI Maya Ram PW-3. Statement Ex.PA made by Shakuntla, when translated, reads as under: “I am resident of the above noted address and do labour work. Today (7th April, 1999) at about 1.00 – 1.30 p.m. my maternal aunt Kamla, who resides in our neighbourhood, was passing through the street, when she fainted and fell down. I and Saroj wife of Maman Pandit, who is my neighbour, lifted her and brought to the house of Maman. I brought lemon water from my house and administered the same to Kamla, who after some time regained consciousness. At that time, Savitri wife of Banwari Lal and Bala Devi wife of Brij Lal, who are our neighbours also came there. At that time, Rinku son of Om Parkash Pandit, resident of Thakar Basti, Fatehabad, who is nephew of Maman, came to the house of Maman and started saying that what panchayat you are holding here and all of you should go, upon which I told that in case of difficulty a neighbour has to come. The same thing was repeated by Saroj to Rinku. Rinku went away after giving abuses. At that time, Billu alias Ramdhan, who is brother of both Om Parkash and Maman and is residing from last two months in the house of Maman, also came and started hurling abuses. I left the house of Maman for proceeding towards my house. When I reached near my house, Rinku and Raju sons of Om Parkash came in the street. Rinku, Raju and Billu alias Ramdhan again started hurling abuses to me and Raju son of Om Parkash lifted a brickbat from the street and threw the same towards me, which hit on my forehead and the nose. When I raised noise of ‘Mar Diya Mar Diya’, at that time Saroj, Sawitri, Bala Devi and Brij Lal came at the spot. They witnessed the occurrence.” 2 Criminal Revision No.2636 of 2008 Dr. J.S. Grewal PW-2 had medico legally examined the injured Shakuntla and found following injuries on her person: 1. A crash lacerated wound 6x3 cm on right side of forehead deep up to bone. Advised X-ray. 2. Nasal deformity on its bridge present. Local tenderness present with nasal bleed. Advised X-ray. It is an admitted case of the prosecution that the petitioners had hurled abuses and the brickbat was thrown on the injured by Raju, who has been declared as a proclaimed offender. I have heard counsel for the parties. In the present case, there was no previous enmity between the parties. Their relations were cordial. This fact is discernible from the testimony of Shakuntla PW-1, as she had taken Kamla to the house of Maman and all the accused were relations of Maman. It was on the spur of the moment and without any premeditation that the occurrence had ensued. Only one brickbat blow was given to the injured by Raju. It is an individual act of Raju, who at the heat of the moment, had lifted a brickbat and thrown the same towards Shakuntla complainant. In these circumstances, this Court is of the view that Section 34 IPC is not attracted. Therefore, present revision petition is accepted. Conviction and sentence awarded upon the petitioners with aid of Section 34 IPC by both the courts below is set aside and both the petitioners are acquitted of the charges. [KANWALJIT SINGH AHLUWALIA] JUDGE March 9, 2010 rps 3