Criminal Appeal No. 853-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 853-SB of 2002 DATE OF DECISION: February 03, 2010 Dev Raj and another .....APPELLANTS VERSUS State of Punjab .....RESPONDENT CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Mr Ashok Goel, Advocate Mr P.S.Sidhu, Additional Advocate General, Punjab T.P.S .MANN,J. (Oral): The appellants have filed the present appeal for challenging the judgment and order dated 7.5.2002, passed by Additional Sessions Judge, Barnala, whereby they were convicted and sentenced as under: Criminal Appeal No. 853-SB of 2002 -2- Dev Raj Rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default thereof, to undergo further rigorous imprisonment for one month under Section 307 IPC. Rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default thereof, to undergo further rigorous imprisonment for one month under Section 325 read with Section 34 IPC, and Rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default thereof, to undergo further rigorous imprisonment for one month under Section 27 of the Arms Act. Hardev Singh Rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default thereof, to undergo further rigorous imprisonment for one month, under Section 307 read with Section 34 IPC. Rigorous imprisonment for 2½ years and to pay a fine of Rs.500/-, in default thereof, to undergo further rigorous imprisonment for one month under Section 325 IPC. The substantive sentences awarded to both the appellants were ordered to run concurrently. The F.I.R was registered on the basis of a statement made by complainant Amar Singh PW-3. He stated therein that he was resident of village Hamidi and a retired Kanungo. He had about 6 acres of land in the area of Hamidi and Karamgarh villages. On 1.12.1998 at about 4.00 PM, he alongwith his grandson Manpreet Singh went to his land situated in village Karamgarh so as to find out as to whether it was fit for sowing the kharif crop or not. At that time, both the appellants, namely, Dev Raj and Hardev Singh, along with Gurpreet Singh son of Hardev Singh, residents of village Hamidi, were making ridges in his land. Dev Raj was armed with a double Criminal Appeal No. 853-SB of 2002 -3- barrel gun, Hardev Singh with a gandasa and Gurpreet Singh with a soti. When the complainant asked them not to make ridges illegally in his land, Gurpreet Singh accused raised a lalkara, exhorting his companions not to allow Amar Singh to escape alive on that day. Hardev Singh gave a gandasa blow on the dorsum of left hand of complainant Amar Singh, while Dev Raj fired a shot from the double barrel gun which hit the right hand of the complainant. The second shot fired by Dev Raj hit the right leg of the complainant. At this Amar Singh raised an alarm, which attracted Darshan Singh and Kuldeep Singh of his village Hamidi to the spot. On seeing them, all the accused fled from the spot while carrying their respective weapons. According to the complainant, there was a dispute pending in the Court between the parties with regard to the land in which the accused were making ridges. Despite his asking them not to continue with making of the ridges, the accused did not desist and also caused injuries to him. The complainant was removed in an injured condition to Civil Hospital, Barnala, where he was medico-legally examined. As his condition was deteriorating, he was referred to a higher medical institution. Accordingly, he was taken for medical treatment to DMC & Hospital, Ludhiana, where he was admitted. It was at that place where the statement Ex.PG of the complainant was recorded by ASI Gurmail Singh, on the basis of which F.I.R Ex. PG/2 was registered at Police Station, Barnala on 3.12.1998. After recording the statement of the complainant, ASI Gurmail Singh went to the spot in the area of village Karamgarh. He inspected the place of the occurrence and prepared rough site plan Ex.PN. He lifted the blood stained earth from the spot. Two empty cartridges were also taken Criminal Appeal No. 853-SB of 2002 -4- into possession from the spot. On 9.12.1998 when ASI Gurmail Singh, alongwith other police officials, was present at bus stand of village Wazideke, he was informed by Gurcharan Singh that the accused were present at bus stand, Hamidi, and accordingly, he went there and arrested them. On the basis of a disclosure statement suffered by Dev Raj, a .12 bore double barrel gun was recovered from a room adjoining the Verandah of his residential house. The said gun was found to be in working condition. It was taken into possession. From the personal search of Dev Raj, licence of aforesaid double barrel gun was also recovered. After completing the investigation of the case and on receipt of reports of the Forensic Science Laboratory and Chemical Examiner, the police presented the final report under Section 173 Cr.P.C against the appellants, whereas Gurpreet Singh was found to be innocent. Following the commitment of the accused, charges were framed against the appellants, to which they pleaded not guilty and claimed trial. The prosecution then examined Amar Singh complainant as PW-1, who reiterated his allegations, as levelled by him in his statement made to the police, on the basis of which, F.I.R was registered. Accordingly, an application under Section 319 Cr.P.C was moved by the State, which was allowed on 7.5.1999 and Gurpreet Singh accused was summoned to face trial as an additional accused. On appearance of Gurpreet Singh and after supplying of copies of the documents to him, fresh charges were framed against all the accused, including Gurpreeet Singh, to which they pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW-1 Dr Geetu Aggarwal, who conducted X-ray examination of the injuries on the person Criminal Appeal No. 853-SB of 2002 -5- of the complainant and found fracture of the second, third, fourth and fifth metacarpals of the left hand of the complainant. PW-2 Dr Suresh Kumar, Medical Officer, Civil Hospital, Barnala deposed that he conducted the medico-legal examination on the person of Amar Singh injured. All the ten injuries were found to be within the probable duration of six hours. The weapon used was fire arm for all the injuries, except injury No.3, which was result of blunt weapon. After receipt of the X-ray report, the doctor declared injury No.3 as grievous in nature, which injury was attributed to Hardev Singh appellant. PW-3 Amar Singh and PW-4 Manpreet Singh deposed about the ocular account. PW-5 H.C.Bhagwan Singh proved the disclosure statement made by Dev Raj appellant and recovery of a double barrel gun in pursuance thereof. PW-6 ASI Gurmail Singh stated about the recording of the statement of the injured and sending the same to the Police Station for lodging of the F.I.R. He also deposed about the various steps taken by him during investigation of the case. PW-7 MHC Tarsem Singh tendered in evidence his affidavit Ex.PV; PW-8 Vijay Kumar, Patwari proved scaled site plan Ex.PX; PW-9 HC Ajaib Singh deposed about the receipt of ruqa Ex.PF from Civil Hospital, Barnala, regarding the admission of the injured; PW-10 C.Jagmohan Kumar tendered in evidence his affidavit Ex.PY and also deposed about lifting of blood stained earth from the fields as well as two empty cartridges from the spot; PW-11 Dr Avtar Singh Kharay stated that on 2.12.1998, he sent ruqa Ex.PM to Police Station, Sarabha Nagar, Ludhiana regarding the admission of Amar Singh in DMC & Hospital, Ludhiana. He also identified the signatures of Dr Gautam Marwaha on Ex. PL at Ex.PL/1 as he had seen him signing and writing, as per which the injured was admitted in DMC & Hospital, Ludhiana, on Criminal Appeal No. 853-SB of 2002 -6- 1.12.1998 and discharged on 18.12.1998. When the accused were examined under Section 313 Cr.P.C, all the incriminating circumstances appearing against them were put to them. They pleaded that they had been falsely implicated. According to Dev Raj accused, a civil case was filed by Jangir Singh, brother of complainant Amar Singh, against Amar Singh and others regarding the land situated in village Karamgarh, which was decided in favour of Jangir Singh. The mutation of the land was also sanctioned in favour of Jangir Singh. After the death of Jangir Singh, the mutation of his land was sanctioned in favour of his widow Chand Kaur and daughter Harbans Kaur. Both Chand Kaur and Harbans Kaur sold their 1/8th share out of the land measuring 50 kanals 7 marlas in village Karamgarh to him. However, Amar Singh never wanted him to become a co-sharer in the Khewat and due to that reason he involved him in the case. Hardev Singh-accused took up a similar plea as taken by Dev Raj accused. He stated that Chand Kaur and Harbans Kaur had appointed him as their attorney regarding their land, but Amar Singh complainant never wanted that he should become their attorney. Amar Singh was his uncle, whereas Chand Kaur widow of Jangir Singh was his aunt. He was falsely implicated due to the aforesaid reasons. Gurpreet Singh accused stated that Amar Singh complainant had considerable influence over the police and revenue officials as he was a retired Kanungo. For that reason he was falsely implicated in the case. He further stated that during the course of investigation, he was found innocent. In defence, the accused examined DW-1 C. Balbir Singh, DW- 2 SI Nachhatar Singh, DW-3 Paramjit Singh, DW-4 Darshan Singh, DW-5 Criminal Appeal No. 853-SB of 2002 -7- Sucha Singh and Dev Raj accused himself appeared as DW-6. They also tendered into evidence certified copy of mutation No.3827, Ex.DH. After hearing learned counsel for the parties and going through the evidence brought on record, the trial Court came to the conclusion that the prosecution had not been able to prove its case against Gurpreet Singh accused beyond reasonable doubt. Accordingly, he was acquitted of the charges against him. However, the prosecution case against the appellants was accepted and they were convicted and sentenced, as mentioned above. The prosecution had relied upon the testimonies of PW-3 Amar Singh complainant and PW-4 Manpreet Singh in support of the ocular account. Two other witnesses, namely, Darshan Singh and Kuldeep Singh, who had come to the spot and witnessed the occurrence, were not examined because they had been won over by the accused. It is the quality of evidence which is required to be seen and not the quantity. Amar Singh was the stamp witness of the occurrence. He had received fire arm injuries on his person, apart from a blunt weapon injury on the back of his left hand. His presence at the spot could not be doubted. As he was 72/73 years of age at the time of occurrence, he was expected to be accompanied by either his son or grand son for the purpose of visiting his land in village Karamgarh so as to find out whether it was fit for sowing the kharif crop or not. PW-4 Manpreet Singh is none else but his grand son. Therefore, there is nothing un-natural or improbable in the presence of Manpreet Singh at the spot. The mere fact that said Manpreet Singh was not hit by any of the pellets on account of the firing attributed to Dev Raj appellant, is no ground to doubt his presence, as the firing was resorted to by Dev Raj at Amar Singh complainant from the distance of 10 feet only. Similarly, non-mentioning of Criminal Appeal No. 853-SB of 2002 -8- the name of Hardev Singh appellant in the rough site plan Ex.PN and the scaled site plan Ex.PX is no ground to hold that Hardev Singh was not present at the time of the occurrence. Both Amar Singh and Manpreet Singh categorically stated that Hardev Singh was also present at the spot and wielded the gandasa by inflicting an injury on an back of the left hand of complainant Amar Singh. In the F.I.R lodged at the instance of complainant Amar Singh, it was mentioned that Hardev Singh had used the gandasa in inflicting the injury on the back of the left hand of Amar Singh. A perusal of the medical evidence would reveal that it was injury No.3, which was reddish contusion on the dorsum of the left hand of Amar Singh, caused by Hardev Singh. The said injury is reproduced herebelow: “Reddish contusion 3 cm x 2 cm medial to injury No.2 on the dorsum of left hand, tender swelling present around. Advised X-ray.” While appearing as PW-3, Amar Singh stated in his examination-in-chief that Hardev Singh used the blunt side of the gandasa in inflicting the said injury. Apparently, there was an attempt made by said Amar Singh PW-3 to bring his evidence in conformity with the medical evidence. However, despite Amar Singh stating in his examination-in-chief about Hardev Singh using the reverse side of the gandasa in inflicting the injury on his person, which was an improvement over his earlier version, the defence did not confront him with his earlier statement so as to argue that this improvement was consciously made by Amar Singh to bring his evidence in conformity with the medical evidence. Injury No.3 was caused by blunt weapon or blunt side of a sharp edged weapon, whereas the Criminal Appeal No. 853-SB of 2002 -9- remaining injuries were opined by the doctor to have been caused by a fire arm. It is Hardev Singh accused, who was attributed giving of an injury on the back of left hand of Amar Singh. Another fact which probablies the presence of Hardev Singh at the spot was the sale of the land belonging to the share of Chand Kaur and Harbans Kaur in favour Dev Raj and it was Hardev Singh who acted as the attorney of the vendors in executing the sale deed. Dev Raj, who had purchased the land had not been able to enter the same, as his status was that of a co-sharer. He had not become exclusive owner of the land purchased by him. Under these circumstances, he had no other option but to seek the assistance of Hardev Singh to enter the land. After both of them had entered the land and were making ridges, it was at that point of time that Amar Singh complainant and his grand son Manpreet Singh reached the spot and objected to making of the ridges, whereafter, the occurrence ensued. In view of the above, there is no option but to sustain the conviction of the appellants for the offences as recorded by the trial Court. Learned counsel for the appellants states that Dev Raj appellant has already completed his entire sentence and deposited the fine imposed upon him. He has since been released from the jail and, therefore, his appeal has become infructuous. However, Hardev Singh appellant, who has been sentenced to undergo three years' imprisonment, remained in jail for about six months during the trial of the case. He was attributed causing of a solitary blow and that too, from the blunt side of the gandasa carried by him. The injury caused was on non-vital part of Amar Singh. He is facing agony of criminal prosecution since December 1998. Therefore, the sentence of Hardev Singh appellant be reduced to the period already undergone by him. Criminal Appeal No. 853-SB of 2002 -10- Learned State counsel has confirmed the fact about Dev Raj appellant completing his sentence and depositing of fine imposed upon him. He has produced affidavit of Superintendent, District Jail, Sangrur, dated 2.2.2010, which is taken on record. It stands mentioned therein that Dev Raj appellant was released on 16.7.2004 on completion of his sentence. He, however, states that the injury attributed to Hardev Singh appellant has resulted in fracture of the second, third, fourth and fifth metacarpals of the left hand of the injured and therefore, no case is made out for showing any leniency to him in the matter of sentence. The occurrence had taken place on 1.12.1998. Hardev Singh was arrested on 9.12.1998. As per the records, he was granted the concession of bail only on 12.5.1999. Upon his conviction, he was sentenced to undergo rigorous imprisonment for three years. Accordingly, the trial Court suspended his sentence so as to enable him to file the present appeal. Thus, as a convict he did not undergo any sentence. However, the fact remains that he has served an actual period of more than five months in jail as an under trial. The said period undergone by him has to be set off against the sentence of imprisonment required to be served as per the provisions of Section 428 Cr.P.C. Though Hardev Singh was carrying a gandasa but it was admittedly used by him from its blunt side. Only a single blow was attributed to him. Even the same hit Amar Singh injured on his non-vital part. Taking into consideration all the attending circumstances, this Court is of the view that ends of justice would be best met by reducing the sentence of imprisonment of Hardev Singh to that already undergone by him. At the same time, the amount of fine of Rs.1,000/- imposed upon him under Section 307 read with Section 34 IPC can be enhanced to Rs.11,000/- Criminal Appeal No. 853-SB of 2002 -11- so that the enhanced amount may be paid to Amar Singh complainant as compensation. In view of the above, the conviction of Hardev Singh appellant under Sections 307 read with Section 34 IPC and Section 325 IPC is maintained. The sentence of imprisonment imposed on both the counts is, reduced to that already undergone by him. However, the fine of Rs.1,000/- imposed upon him under Section 307 read with Section 34 IPC is enhanced to Rs.11,000/-. In default thereof, Hardev Singh appellant shall undergo rigorous imprisonment for one year. The enhanced amount of fine shall be paid within three months from today. Once the additional amount of fine stands paid, it be disbursed to Amar Singh complainant as compensation. Sentence of fine under Section 325 IPC alongwith its default clause, is maintained. The appeal of Dev Raj appellant is disposed of as infructuous while that of Hardev Singh disposed of with modification in the sentence, as indicated above. February 03, 2010 (T.P.S.MANN) Pds JUDGE Whether to be referred to Reporter: Yes/No