Criminal Revision No.457 of 1992 1 In the High Court of Punjab and Haryana, Chandigarh. Criminal Revision No.457 of 1992 Date of Decision: 26.2.2008. Nathu Ram and Others …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. D.N.Ganeriwala, Advocate for the petitioners. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. Nathu Ram son of Ram Chand along with his two sons Surinder Pal, Ramesh Kumar, Mohinder Kaur wife of Gurdev Singh and Gurdev Singh son of Daman Singh were nominated as accused in FIR No. 13 dated 1.2.1990 registered at Police Station Moga, under Sections 323, 324, 326, 148, 149 IPC. An FIR was lodged at the instance of Chiman Lal who stated that he is resident of Daulatpura Niwan and do agricultural work and has 20 killas of land including one kanal three marlas, which belong to the custodian and for auction of the same Tehsildar, Moga came on 31.1.1990 in the Patwarkhana of village Daulatpura. Complainant along with his nephew Jaswant Singh and Kashmiri Lal Sarpanch was present at the Patwarkhana where Nathu Ram accused, his two sons Surinder Pal and Ramesh Kumar, and accused Gurdev Singh along with his wife Criminal Revision No.457 of 1992 2 Mohinder Kaur were also present. It is stated that when at about 1.30 P.M. or 2.00 P.M. talks were going on for holding the auction when Nathu Ram said that he is owner of one kanal and three marlas of land, upon which complainant replied that he is in possession of this land and cultivating the same for the last ten years. It is stated that Nathu Ram accused brought a gandasi whereas his son Surinder Pal brought kasauli and Gurdev Singh also brought gandasi. Nathu Ram gave a gandasi to the complainant which hit on his left little finger and left ring finger. Gurdev Singh is stated to have given two gandasi blows on the head of the complainant, on his right foot and back of his chest and Mohinder Kaur gave blows of brick bat which hit on back of his left shoulder and left side of the back. The complainant fell down and saw that Surinder Pal gave a kasauli blow to Jaswant Singh, which hit on his palm. Ramesh Kumar also gave brick bat blows, which hit on the chest of Jaswant Singh. He raised noise on which Kashmiri Lal Sarpanch separated them and the accused ran away from the spot along with their weapons. After investigation of FIR, final report under Section 173 Cr.PC. was submitted. Charge was framed on 2.6.1990 by the Court of Learned Judicial Magistrate Ist Class, Moga, who charged all the accused under Section 148 IPC and substantively charged Nathu Ram under Section 326 IPC and others with the aid of Section 149 IPC. Nathu Ram and Gurdev Singh were also substantively charged for an offence under Section 324 IPC for causing simple incised injury to Chiman Lal, whereas others were charged with the aid of Section 149 IPC. Surinder Pal, Ramesh Kumar, Gurdev Singh and Mohinder Kaur Criminal Revision No.457 of 1992 3 were substantively charged under Section 323 IPC for causing simple injury to Chiman Lal and Jaswant Singh, whereas Nathu Ram was charged with the aid of Section 149 IPC. The accused denied the charges and pleaded not guilty and claimed trial. Prosecution examined Chiman Lal as PW.1. He reiterated the allegations levelled in the FIR. Dr. Yashpal, Medical Officer appeared as PW.2. He found following injuries on the person of Chiman Lal:- “1. Oblique incised wound 2 X .9 cm bone deep on the right side of the scalp. 8.8 cm from the posterior hair line 3.2 cm from the mid line. Fresh bleeding was present. Advised X-Ray; 2. Contusion of 2.2 X 2 cm on the right side of scalp just behind the pinna of right ear . 6 cm from the posterior hair line. Advised X-Ray; 3. Incised wound of 2.1 X .8 cm bone deep on the dorsel surface of the left little finger .1 cm below the proximal inter phangeal joint. Fresh bleeding was present. Advised X-Ray; 4. Incised wound of 1.6 X .5 cm bone deep on the dorsal surface of left ring finger .1 cm below the proximal inter phangeal joint. Fresh bleeding was present. Advised Criminal Revision No.457 of 1992 4 X-Ray; 5. Reddish contusion 3 X 2 cm on the right scapular region 13 cm from the mid line and 2 cm below the upper bordes of the scapular; AND 6. Complaint of pain in the right hip joint”. He also medicolegally examined Jaswant Singh and found following injuries on his person:- “1. Abrasion .8 DX .7 cm on the dorsal surface at the mata corop phalageal joint of the right middle finger; 2. Abrasion .7 X .5 cm on the dorsal surface of right ring finger. Just above the Matacorpo Phlangeal joint; 3. Abrasion of .9 x .7 cm on the dorsal surface of right little finger just above the matacropo phlangeal joint; AND 4. Complaint of pain in the whole of the chest. Advised X-Ray”. On the same day, he had also examined Ramesh Kumar and found following injuries on his person:- “1. Oblique incised wound of 2 X .7 cm bone deep on the ventral surface of let ring finger. .5cm below the proximal inter phlangeal joint. Fresh bleeding was present. X-Ray advised; Criminal Revision No.457 of 1992 5 2. Oblique incised wound of 1.4 X .3 cm bone deep on the left little finger on the ventral surface 1.4 cm below the distal inter phlangeal joint. Bleeding was present. Advised X-Ray; 3. Abrasion of 1 X .6 cm on the ventral surface of right thumb. .5 cm below the inter phlangeal joint of the thumb; 4. Transverse swelling 4 X 1.2 cm on the back of the right side of abdomen just below the lower margin of the ribs; 5. Abrasion of 1 X .6 cm on the front of the right hip joint. 3.5 cm from the interial iliac spine. 6. Reddish contusion of 2 X 1.5 cm on the posterior surface of left upper arm. 5 cm above the elbow joint. 7. Complaint of pain in the chest”. Jaswant Singh appeared as PW.3 and corroborated the evidence of Chiman Lal PW.1. Assistant Sub Inspector Hukam Singh appeared as PW.4. PW.5 Dr.S.P.Bansal radiologically examined Chiman Lal PW.1 and declared injury No.3 as grievous. PW.6 Ranjit Kanwar, Tehsildar, Moga, was declared hostile. He is an independent person and being Tehsildar his presence at the spot was admitted by both the parties as he went there to conduct Criminal Revision No.457 of 1992 6 auction. He is a respectable Government official as he was posted as Tehsildar, Moga. He has specifically stated that both the parties were claiming possession over the land. It has also been stated by PW.1 Chiman Lal that accused Nathu Ram had stated that the land is in his possession upon which Chiman Lal stated that from the last ten years he is cultivating the land. It has also come in evidence that tempers were lost, abuses were exchanged and occurrence has ensued. At the same when injured Chiman Lal and Jaswant Singh were medicolegally examined, accused Ramesh Kumar was also examined. He has also suffered six injuries. Both the Courts below have not accepted right of self-defence of Ramesh Kumar on the ground that he had not made any complaint to the authorities. The injuries on the person of Ramesh Kumar has not been explained by the prosecution. Both the sides have not given a true version regarding origin and genesis of the occurrence but there is enough material on the record to infer that the occurrence was result of grave and sudden provocation. PW.1 Chiman Lal has stated in his cross-examination that he did not give any injury to Ramesh Kumar. In his cross-examination he has further stated that he does not know whether any other person gave injury to Ramesh Kumar or not. PW.3 Jaswant Singh has stated in his cross-examination that he gave one or two brick bat blows to Ramesh Kumar. Apparently PW.1 Chiman Lal and PW.3 Jaswant Singh have minimised their role. Therefore, I convert the offence from Section 326 to Section 335 IPC. Section 335 IPC reads as under:- “Whoever voluntarily causes grievous hurt on grave Criminal Revision No.457 of 1992 7 and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years or with fine which may extend to two thousand rupees, or with both”. The learned trial Court has sentenced all the accused under Section 148 IPC to six months. Nathu Ram was sentenced to undergo one year and a fine of Rs.500/- under Section 326 IPC and others i.e. Surinder Pal, Gurdev Singh, Ramesh Kumar and Mohinder Kaur to undergo rigorous imprisonment for six months and fine of Rs.250/- each under Section 326 read with Section 149 IPC. Gurdev Singh was sentenced to undergo rigorous imprisonment for six months under Section 324 IPC, whereas Surinder Pal, Ramesh Kumar, Mohinder Kaur and Nathu Ram were sentenced to undergo rigorous imprisonment for three months under Section 324 read with Secession 149 IPC. Surinder Pal, Ramesh Kumar and Mohinder Kaur were sentenced to undergo rigorous imprisonment for six months under Section 323 IPC and Nathu Ram and Gurdev Singh were sentenced to undergo rigorous imprisonment for three months under Section 323 read with Section 149 IPC. In default of payment of fine, they were further ordered to undergo rigorous imprisonment for two months. All the offences were ordered to run concurrently. The accused had filed an appeal. In appeal, Mohinder Kaur was acquitted. Sentences of Nathu Ram was reduced under Section Criminal Revision No.457 of 1992 8 326 IPC to nine months and of other accused under Section 326 read with Section 34 IPC was reduced to four months, whereas sentence of fine was maintained. Sentence of Gurdev Singh under Section 324 IPC was reduced to four months, whereas sentence of Surinder Pal, Ramesh Kumar and Nathu Ram under Section 324 read with Section 34 IPC was reduced to three months. Sentence of Surinder Pal and Ramesh Kumar under Section 323 IPC was reduced to three months, whereas sentence of Nathu Ram and Gurdev Singh under Section 323 read with Section 34 IPC was reduced to three months. All the accused were granted bail during trial. They were taken into custody on 16.7.1992 but were granted bail by this Court on 27.7.1992. Therefore, they have undergone about 11 days of their actual sentence. Since I have converted the offence from Section 326 IPC for the lesser offence under Section 335 IPC, ends of justice will be met in case sentence of accused is reduced to already undergone taking into account not only conversion of offence but also protracted trial as the occurrence took place on 31.1.1990 and the petitioners are in corridors of the Court from the last 18 years. However, each accused will pay fine of Rs.1,250/- each and in all Rs.5,000/-. The amount so deposited by the accused in the Court shall accrue as compensation to Chiman Lal PW.1. Non-deposit of fine shall make accused liable to undergo rigorous imprisonment for two months. Revision petition is disposed off in above terms. (Kanwaljit Singh Ahluwalia) Judge February 26, 2008 “DK”