IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.567-SB of 1997 Date of decision: 7th January, 2010 Avinash Kumar … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Amardeep Singh Gill, Advocate for the Appellant. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. Mrs. Baljit Kaur Mann, Advocate for the complainant. KANWALJIT SINGH AHLUWALIA, J. By this common order, Criminal Appeal No.567-SB of 1997 and Criminal Revision No. 1225 of 1997 shall be decided together. Criminal Appeal No.567-SB of 1997 has been instituted by Avinash Kumar son of Tilak Raj. He has prayed to this Court that the judgment and order dated 2nd July, 1997 passed by Additional Sessions Judge, Jalanahdar be set aside as according to the appellant, the trial Court has committed a grave error in convicting and sentencing him for offence under Section 307 and 450 IPC and under Section 25 of the Arms Act. The trial Court had sentenced the appellant to undergo rigorous imprisonment for five years and to pay fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months for offence under Section 307 IPC for committing murderous assault upon Brij Rani injured. Furthermore, trial Court sentenced the Criminal Appeal No.567-SB of 1997 appellant to undergo rigorous imprisonment for three years under Section 450 IPC for committing criminal house trespass in the house of Brij Rani injured. The appellant was also sentenced under Section 25 of the Arms Act to undergo rigorous imprisonment for nine months. All sentences were ordered to run concurrently. Criminal revision No. 1225 of 1997 has been preferred by Brij Rani, who was injured in the occurrence and had lodged case FIR No.90 dated 24.11.1995 at Police Station Kartarpur under Sections 450/380/307 IPC. The State of Punjab had not filed any appeal for enhancement, whereas complainant in the instant revision petition has prayed that sentenced of imprisonment should be enhanced and adequate fine be imposed and same be paid as compensation to the complainant petitioner in the revision petition. Case FIR No. 90 dated 24.11.1995 was registered at Police Station Kartarpur under Sections 450/380/307 IPC on the basis of statement Ex.PA lodged by Brij Rani. In her statement Brij Rani stated that she was resident of Dialpur. She had three sons and one daughter. Her all four children along with their respective families reside abroad. Her daughter-in-law namely Mukta Seth wife of Pawan Seth was living along with the complainant. Mukta Seth from the last 3-4 days had gone to the house of her parents. On 24th November, 1995, at about 4.00 p.m. Brij Rani was alone in her house when Avinash Kumar @ Kali son of Tilak Raj Seth resident of Sethan Mohalla Dialpur, Police Station Kartarpur came to meet her. The accused on his arrival started talking with Brij Rani. He asked her whether she has received sweets on account of marriage of his father’s elder brother’s son, upon which she replied that sweets were received, but the same have been consumed and there is no need to ask for the same. Avinash Kumar kept sitting in the room and was 2 Criminal Appeal No.567-SB of 1997 watching television. The accused asked Brij Rani to bolt the door. She replied that the door was already closed. The accused said her to check the door and also to close the door of the stairs. Thereafter, the accused came on the back side of the complainant Brij Rani, gagged her mouth with his hands and after taking knife from his dub, started giving blows to complainant Brij Rani on her head, eyes, cheeks and other parts of the body. She raised noise of ‘Mar Diya Mar Diya’. At that time, Avinash Kumar @ Kali snatched her gold chain and decamped from the spot along with the weapon. The accused after concealing the gold chain and the knife again came back, upon which the complainant asked why he had come again. Meanwhile, after hearing the noise, Jagdish Pal son of Jovind Lal, Ajay Kumar son of Om Parkash and Shiv Kumar son of Raj Pal were attracted at the spot. The accused Avinash Kumar @ Kali got himself released from the clutches of Brij Rani injured and ran away from the spot. According to the complainant, she was caused injuries by Avinash Kumar @ Kali, who had taken one gold chain. After arrangement of the vehicle, she was got admitted in the hospital, where she was under treatment, when police arrived there and recorded her statement. Avinash Kumar @ Kali as per the version of the complainant had caused injuries with intention to commit theft. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The appellant was charged for various offences. He pleaded not guilty and claimed trial. Prosecution examined Brij Rani injured as PW-1. The witness in her examination in chief reiterated what was stated in the FIR. However, she got exhibited gold chain Ex.P1. This witness stated in cross examination that even though there is a hospital at Kartarpur, but on the day of occurrence, she was straightaway taken to Jalandhar and was got admitted in Batra Hospital at about 6/7 p.m. The Doctor had dressed all 3 Criminal Appeal No.567-SB of 1997 the wounds in the hospital. Jagir Singh appeared as PW-2. He stated that he heard Raula that injuries have been causd to Brij Rani. He along with Ajay Kumar, Jagdish Lal and Shiv Kumar reached to the house of Brij Rani. At that time, Brij Rani was raising noise that she be saved. She had caught hold the collar of Avinash Kumar @ Kali. When Jagir Singh asked Brij Rani to leave Avinash Kumar, Brij Rani told that Avinash Kumar had caused injuries. Jagir Singh told Brij Rani to release the accused, as at first instance she required medical aid and accused can be dealt later. Brij Rani told that Avinash Kumar had snatched away a gold chain. Ajay Kumar and Jagdish Kumar PWs were given up as unnecessary. ASI Kulwant Singh appeared as PW-3. He stated that he had recorded statement of witness and after completion of investigation, report under Section 173 Cr.P.C. was submitted and the same was signed by Inderjit Singh SHO. PW-4 HC Bakhshi Ram stated that ASI Balwinder Singh made him join the investigation. They went to the spot, took into possession one bed sheet and one pillow, both blood stained, vide recovery memo Ex.PB. Bed sheet was exhibited as Ex.P2 and pillow as Ex.P3. They had also taken into possession earth from the spot, which was exhibited as Ex.P5. Gopal Kishan MHC PW-5 tendered his affidavit Ex.PD. Dr. Vinod Batra PW-6 on 24th November, 1995 medico legally examined Brij Rani. According to the Doctor, she had suffered multiple injuries on the face, caused by sharp edged weapon on the skull left side, nasal bone, right lower eyelid, left lower eyelid, upper lip, left half of the face, palate, left thumb and left index finger. There was fracture of nasal bone and injury on the left side of the face and palate was declared dangerous to life. According to this witness, all the injuries and wounds were profusely bleeding. The patient was brought in a condition of shock. 4 Criminal Appeal No.567-SB of 1997 As per this witness, injuries were result of sharp edged weapon. The injured was discharged from the hospital on 6th December, 1995. ASI Balwinder Singh PW-7 deposed regarding various facets of the investigation. Dalip Singh, Draftsman PW-8 proved scaled site plan Ex.PD. Girmit Singh constable PW-9 stated that on 27th November, 1995, Avinash Kumar was spotted coming from the side of Kartarpur. He was apprehended at the spot, taken into custody and interrogated. Upon interrogation, the accused suffered a disclosure statement and got recovered one chain and one knife from the iron almirah, lying in his house. The disclosure statement was exhibited as Ex.PN. Articles were taken into possession vide seizure memo Ex.PQ. Thereafter, prosecution tendered report of chemical examiner Ex.PU and report of serologist Ex.PV and PW, and closed the prosecution evidence. Statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to him. The accused denied the same and gave following version: “Some undesirable persons used to visit Mukta at the house of the complainant and some unidentified persons caused injuries on the person of the complainant. I am innocent and I have been falsely named on misguided suspicion.” No evidence was led in the defence. Mr. Amardeep Singh Gill, appearing for the appellant, has stated that the appellant has been falsely implicated. Brij Rani PW-1 was examined by a private Doctor, Dr.Vinay Batra PW-6 and she was not taken to the hospital. It is further submitted that there was a hospital available at Kartarpur but she was taken to Jalandhar. Furthermore, it is contended that Jagir Singh and other witnesses were available. They had not narrated the version to the police, therefore it can be safely assumed 5 Criminal Appeal No.567-SB of 1997 that they were not present at the spot and have not witnessed the occurrence and the complainant injured cannot be believed as she has introduced false witnesses. Counsel for the appellant has further submitted that no offence under Section 307 IPC is made out and in case this Court holds the appellant guilty, then taking into consideration long pendency of the case, sentence awarded upon the appellant be adequately reduced. Mr.Mehardeep Singh, DAG Punjab appearing for the State assisted by Mrs. Baljit Kaur Mann, appearing for the complainant, has submitted that Brij Rani being injured has given a truthful account of the occurrence and she being reliable witness has deposed against the appellant, therefore, the guilt of the appellant stands conclusively proved. I have given my thoughtful consideration to the rival submission made by counsel for the parties. In the present case, occurrence had taken place on 24th November, 1995 at 4.00 p.m. in the house of Brij Rani complainant. She was mother of four children, who were all settled abroad. She being a lady, was alone in the house. Her statement was recorded by ASI Balwinder Singh at Batra Hospital, Jalandhar at 8.00 p.m. On the basis of the statement, case FIR was registered at 9.25 p.m. It is a known fact that Kartarpur is a satellite town of Jalandhar. Better medical facilities and amenities are available at Jalandhar. Brij Rani, whose three sons and a daughter are settled abroad, can afford better treatment at private hospital. In the present day milieu, it can be well understood that anxiety of the relatives of the injured is to avail better treatment at the earliest. Therefore, taking the injured to the private hospital cannot be taken into consideration to impeach the credibility of the witness. At the time of her deposition, Brij Rani has given her age as 64 years. The accused is nobody else but is related to her as her grandson in brotherhood (collateral). Brij Rani will be the last person 6 Criminal Appeal No.567-SB of 1997 to substitute the accused or falsely implicate anybody. She had suffered many injuries including fracture of nasal bone. In the present case, FIR was promptly lodged and the version given by the injured Brij Rani PW-1 is spontaneous. PW-2 Jagir Singh has lent true corroboration to her testimony. Furthermore, ocular evidence also stands corroborated by medical evidence. Thus, this Court has no hesitation to hold that testimony of Brij Rani aspires confidence and she is a reliable witness. The second submission made by the counsel for the appellant that no offence under Section 307 IPC is made out also cannot be accepted. The appellant has given injuries on the face by giving knife blows. Therefore, it can be safely assumed that the appellant had caused murderous assault. The trial Court has not convicted the appellant for offence under Section 380 IPC or for offence under Section 392, 397 IPC. The trial Court has held that no offence of robbery falling under Section 392, 397 IPC is proved against the appellant. Having held the appellant guilty of the offence under Section 307 IPC and section 450 IPC, this Court is to consider the prayer made by counsel for the appellant regarding reduction in sentence. At the time of delivery of the judgment by the trial Court, appellant was aged 25 years. The occurrence in the present case, took place on 24th November, 1995. The appellant has suffered a protracted trial of more than 14 yeas. Furthermore, the accused may have advanced in his life and fastened himself with many responsibilities and liabilities of the family. Therefore, taking these factors as mitigating circumstances, this Court is of the view that ends of justice will be fully met in case sentence of five years rigorous imprisonment awarded upon the appellant under Section 307 IPC is reduced to three years rigorous imprisonment. However, sentence of fine and the default clause are maintained. Sentence awarded under Section 450 IPC is also maintained along with the sentence awarded 7 Criminal Appeal No.567-SB of 1997 under Section 25 of the Arms Act and the sentences awarded for both the offences shall run concurrently. With these modifications in the sentence, Criminal Appeal No.567-SB of 1997 is disposed of. Taking the entire gamut of the case into consideration, this Court has reduced the sentence of the accused, therefore, no separate orders are required to be passed in Criminal Revision No. 1225 of 1997, as no interference is called for and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE January 7, 2010 rps 8