In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Revision No.1785 of 2010 ..... Date of decision:26.7.2010 Gurjant Singh and another .....Petitioners v. State of Punjab .....Respondent .... Present: Mr. Jasmail Singh Brar, Advocate for the petitioners. Mr. V.P.S. Sidhu, Assistant Advocate General, Punjab for the respondent-State. ..... S.S. Saron, J. Heard learned counsel for the parties. The revision petition has been filed by the petitioners Gurjant Singh alias Bhola and Beeja Singh against the judgment and order dated 25.5.2010 passed by the learned Sessions Judge, Muktsar whereby the appeal of the petitioners against the judgment and order dated 8.5.2009 passed by the learned Judicial Magistrate Ist Class, Gidderbaha has been dismissed. However, the sentence of imprisonment has been reduced for the offence under Section 325 Indian Penal Code (IPC’ – for short) from two years to nine months; besides, maintaining the payment of fine of Rs.1,000/- and in default of payment of fine to undergo rigorous imprisonment for three months. The appellants had also been convicted by the learned trial Court for the offence under Section 323 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for AMIT KAUNDAL 2014.08.11 17:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Revision No.1785 of 2010 [2] six months; besides, pay a fine of Rs.500/- and in default of payment of fine to undergo rigorous imprisonment for one month which has been reduced to rigorous imprisonment of four months while maintaining the sentence of fine of Rs.500 each. The sentence of Beeja Singh (petitioner No.2) for the offence under Section 325 read with Section 34 IPC has been reduced from rigorous imprisonment of 2 years to rigorous imprisonment of nine months and further he has been sentenced to undergo rigorous imprisonment for four months for the offence under Section 323 IPC; besides, pay a fine of Rs.500/- and in default of payment of fine to undergo further rigorous imprisonment for one month. The case of the prosecution is that on 17.9.2003, a QST message was received from Civil Hospital, Gidderbaha at Police Station Gidderbaha with regard to admission of Baldev Singh injured. ASI Harjinder Singh was deputed and he reached Civil Hospital, Gidderbaha and recorded the statement of complainant Baldev Singh injured after seeking opinion of the doctor regarding his fitness to make the statement. According to the complainant Baldev Singh on 16.9.2003 at about 8.00 p.m. he was proceeding to his house on his tractor. He reached near the house of Gurjant Singh and he found that the water course carrying water to his fields had been dismantled. He started to repair it in the light of the tractor by putting earth on the portion that had been dismantled. At that time, Gurjant Singh (petitioner No.1), Kuldeep Singh (non- petitioner) and Beeja Singh (petitioner No.2) came there and stopped the complainant from repairing the water course. The complainant stated that the water was irrigating his land there and AMIT KAUNDAL 2014.08.11 17:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Revision No.1785 of 2010 [3] he was putting earth at the place where there was seepage in the water course. The assailants grappled with the complainant and they struck him against the paved water course. The complainant sustained injuries on his left arm, wrist of the left arm, on his back and on the middle finger of his left arm. He raised an alarm and Gurdas Singh son of the complainant came there and raised an alarm not to cause injuries to the complainant. Thereafter, Jagsir Singh a cousin brother of the complainant also reached there and the assailants fled away from the spot. The cause of the occurrence was that Gurjant Singh (petitioner No.1) had installed an electric motor and he threw electricity wire on the path to cause a obstruction in the way of the complainant. The complainant had asked him to remove it because he was to reverse his tractor but he felt offended and they caused injuries to the complainant. The prosecution in order to prove its case examined the complainant as PW-1, Gurdas Singh as PW-2; besides, Dr. Resham Singh, Medical Officer as PW-3. The Investigating Officer Harjinder Singh, ASI was examined as PW-4. After concluding the prosecution evidence the statements of the petitioners in terms of Section 313 of the Code of Criminal Procedure (‘Cr.P.C.’ - for short) were recorded. It is stated by learned counsel for the petitioners that the petitioners pleaded that they had been falsely implicated. In defence the petitioners examined Gurmail Singh (DW-1) and Gurmeet Singh (DW-2). Beeja Singh (petitioner No.2) had raised a plea of alibi which was, held to be not established. Learned counsel for the petitioners has contended that no weapon in the case has been used and it is a case of a scuffle AMIT KAUNDAL 2014.08.11 17:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Revision No.1785 of 2010 [4] only. It is submitted that Baldev Singh when he appeared as PW-1 did not explain as to whom the injury is attributed. It is further submitted that Gurdas Singh (PW-2) who is the son of the complainant, inter alia stated that first of all after submitting application in Police Station, Kot Bhai which fell on the way, they reached Government Hospital, Gidderbaha. That application was on behalf of his father. It is further stated that no statement of his father was recorded at that time but his statement was recorded in the hospital. Therefore, it is submitted that the prosecution was liable to base its complaint on the first version which was given in writing as is admitted by Gurdas Singh (PW-2). It is submitted that the place of occurrence is not established in the case and no blood stained clothes have been recovered or blood stained earth lifted from the place of occurrence. It is submitted that the Investigating Officer has not stated that the blood stained earth and clothes were taken. I have given my thoughtful consideration to the matter and find no merit in the same. The case is one which is admittedly of a scuffle; however, mere fact that no weapon was used is inconsequential as in the scuffle that occurred injuries were caused by the petitioners to the complainant Baldev Singh. Dr. Resham Singh, Medical Officer (PW-3) has been examined and he found four injuries on the person of Baldev Singh injured which read as under:- 1. There was pain, swelling, redness over the right matacarpo phalangeal joint of little finger. It was markedly tender to touch movements were very very AMIT KAUNDAL 2014.08.11 17:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Revision No.1785 of 2010 [5] painful. X-ray advised. 2. Abrasion was present on the dorsum of right ring finger over the proximal phalanx. It was 0.5 cm in size and serum was oozing out. 3. Lacerated wound was present on the lateral side of left wrist. It was 2.5 cm x 0.5 cm in size. Base of the injury was pale and periphery was brownish in colour. There was no bleeding or serum oozing out. 4. There was complaint of pain on the left side of the back over the lumber region. It was tender to touch redness was present. X-ray was advised. It has further been deposed by Dr. Resham Singh, Medical Officer (PW-3) that injuries No.2, 3 and 4 were declared simple in nature and injury No.1 was declared grievous. He also proved copy of MLR as Ex.PA, pictorial diagram Ex.PA/1, supplementary report Ex.PB, endorsement Ex.PC and skiagrams Ex.P1 and Ex.P2. Injury No.1 is admittedly a grievous injury, therefore, there was indeed a grievous injury on the person of Baldev Singh complainant. The contention that the accused had not used weapon or the grievous injury is not explained by Baldev Singh is inconsequential. It is admitted case that there was a scuffle and in that scuffle Baldev Singh had suffered grievous injury. It is established that Baldev Singh was thrown on the paved water course which resulted in injuries. Besides, there is a motive for the petitioners to have caused the injuries, inasmuch as, the water course that goes to the land of Baldev Singh (PW-1) was dismantled AMIT KAUNDAL 2014.08.11 17:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Revision No.1785 of 2010 [6] and while he was repairing the dismantled portion to prevent the seepage so that full water flows to his fields, the petitioners had caused injuries. Beeja Singh (petitioner No.2) set-up a plea of alibi but the learned Sessions Judge observed that the plea had neither been taken in the real sense nor had been it substantiated on record by him. Therefore, a plea of alibi which was taken and not substantiated would reinforce the finding that the correct conclusion had been reached at. The contention that Gurdas Singh (PW-2) has stated in his cross-examination that they first went to the Police Station where they gave an application and on that application no action has been taken is also without merit. It has not been put to the witness as to what is the nature of the application that was given and whether it was merely an intimation that a fight had occurred and they were taking the injured to the hospital. No question is shown to have been put to ASI Harjinder Singh (PW-4), who was the Investigating Officer in the case as to whether any application had been given while the injured were proceeding towards the Police Station. Therefore, the said contention that an application had been given to the Police but no action had been taken on the application said to have been given by the injured is without merit. It is the categorical case of Harjinder Singh, ASI (PW-4) that on receiving information as Ex.PD he had gone to Civil Hospital Gidderbaha. He went there and submitted an application Ex.PD/1 regarding the fitness of the injured to make a statement. On getting the certificate that the injured was fit to make a statement, his statement was recorded. This in the facts and circumstances was the proper course to be adopted and has been AMIT KAUNDAL 2014.08.11 17:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Revision No.1785 of 2010 [7] adopted. The place of occurrence has been clearly established. Even otherwise once the petitioners admit that it is a case of scuffle, the place where the incident had occurred is inconsequential as it does not cast any doubt as to the incident that actually occurred. The fact that blood stained earth or blood stained clothes were not taken in possession by the Police, may be a lapse on the part of the prosecution, however, it does not, in any manner, show that the prosecution version is improbable or that the witnesses are deposing falsely. For the defect in the investigation the prosecution is not liable to suffer when the case is otherwise established on the basis of ocular account and medical evidence on record. At this stage, learned counsel for the petitioners submits that the petitioners are first offenders and they may be given the benefit of probation. Keeping in view the fact that they have caused injuries and have not shown any bona fide repentance rather have prosecuted the case with vigour and zeal and have prevented the accused from irrigating his land, no ground for grant of probation is made out as the sentence of two years that was imposed by the trial Court has been reduced to nine months by the first appellate Court. In view of the above, there is no merit in this petition and the same is accordingly dismissed. July 26, 2010. (S.S. Saron) Judge *hsp*/A.Kaundal AMIT KAUNDAL 2014.08.11 17:22 I attest to the accuracy and integrity of this document Chandigarh