Criminal Appeal No. 228-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 228-SB of 2001 Date of decision : October 18, 2011 Jagir Singh and others ....Appellants versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vipin Mahajan, Advocate, for the appellants Mr. RS Rawat, Assistant Advocate General, Punjab Mr. Navjit Singh, Advocate for the complainant L.N. Mittal, J. (Oral) By this common judgment, I am disposing of two cases i.e. Criminal Appeal No. 228-SB of 2001 instituted by three convicts namely Jagir Singh, Ghola alias Kashmir Singh and Jassa alias Jassa Singh all sons of Shiv Singh assailing their conviction and sentence recorded by learned Additional Sessions Judge, Gurdaspur vide judgment and order dated 31.1.2001 and Criminal Revision No. 1614 of 2001 instituted by Criminal Appeal No. 228-SB of 2001 -2- complainant Suba Singh assailing acquittal of Shiv Singh and Smt. Jeeta alias Harjit Kaur by the same judgment and also seeking modification in sentence of the three convicts. Prosecution case in brief is as under:- Complainant Suba Singh is real brother of accused Shiv Singh since acquitted. They had civil litigation regarding partition of their joint land. Shiv Singh's sons i.e. convicts often used to abuse the complainant who apprised Bachan Singh, Sarpanch about it. To resolve the dispute between the parties, Bachan Singh called both the parties to his house on 19.10.1997. From the side of the accused, all the three convicts and Jeeta alias Harjit Kaur wife of convict Jassa Singh reached the house of Sarpanch whereas from the other side, the complainant and his two sons Malkit Singh and Tarlok Singh reached there. During the proceedings for amicable settlement, accused Jassa Singh lost temper and started abusing the complainant party. The complainant party reciprocated by abusing the accused. Hot words were exchanged. Bachan Singh, Sarpanch asked the convicts not to abuse. Meanwhile, Shiv Singh accused also reached there. He raised lalkara and exhorted his sons to teach a lesson to the complainant party for getting joint land partitioned. Thereupon accused Harjit Kaur caught hold of the hair of Malkit Singh. Accused Ghola alias Kashmir Singh inflicted two dattar blows to Malkit Singh towards his left flank. Jagir Singh accused inflicted two dattar blows on the head of the complainant. Accused Jassa Singh inflicted two lathi blows to Tarlok Singh Criminal Appeal No. 228-SB of 2001 -3- on his right wrist and forehead. Jagir Singh accused picked up a brick and hit it on the right flank of the complainant. The complainant party raised alarm. Thereupon all the five accused fled away with their weapons. The injured were removed to hospital where they were medico legally examined. Intimation was sent to the police. Suba Singh complainant and Tarlok Singh were declared fit to make statement whereas Malkit Singh was declared unfit to make statement. Suba Singh made statement to the police regarding the occurrence. Thereupon FIR was registered and investigated. Statements of witnesses were recorded. Malkit Singh was declared fit to make statement on 22.10.1997. His statement was also recorded thereupon. Injury no. 1 of Malkit Singh was opined to be dangerous to life. Thereupon offence under section 307 IPC was added. All the five accused were arrested. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the five accused under sections 307, 324, 323 and 148 read with section 149 IPC. Charge under section 148 IPC against all the five accused, under section 307 IPC against Ghola alias Kashmir Singh and under section 307 IPC read with section 149 IPC against the remaining four accused, under section 324 IPC against Jagir Singh accused for causing hut to Suba Singh and under section 324 IPC read with section 149 IPC against the remaining accused, under section 324 IPC against Ghola alias Kashmir Singh for causing hurt to Malkit Singh and under section 324 IPC read with Criminal Appeal No. 228-SB of 2001 -4- section 149 IPC against the remaining accused, under section 323 IPC against Jagir Singh for causing hurt to the complainant and under section 323 IPC read with section 149 IPC against the remaining accused and also under section 323 IPC against Jassa Singh for causing hurt to Tarlok Singh and under section 323 read with section 149 IPC against the remaining accused was framed. All the five accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined ten witnesses. Suba Singh, complainant, PW1 and Malkit Singh, PW2 have broadly stated according to the prosecution version. Dr. Sawinder Kumar, PW3 stated that he medico legally examined all the three injured persons i.e. complainant Shiv Singh and his sons Tarlok Singh and Malkit Singh. Suba Singh had suffered two injuries i.e. an incised wound and complaint of pain. Tarlok Singh suffered three injuries i.e. a diffused swelling and a lacerated wound and complaint of pain. Malkit Singh was semi-conscious. His wounds were profusely bleeding and air was bubbling out from the wounds. The wounds were immediately sealed with antiseptic dressing and his medico legal examination was therefore, delayed. He was found to have following injuries:- “1. Incised stab wound 2½ cm x 1½ cm, 2 cm lateral to left nipple. Wound was profusely bleeding and air bubbles were coming out. Injury was kept under observation for surgical Criminal Appeal No. 228-SB of 2001 -5- specialist opinion and x-ray. 2. Incised stab wound 2 cm x 1 cm, about 9 cm above and lateral to the left nipple on the anterior auxillary line. Wound was profusely bleeding and air bubbles were coming out. Injury was kept under observation for surgical specialist opinion and x-ray.” Janak Rsingh Dhanjal, Draftsman, PW4 stated that he prepared scaled site plan in this case. Sharam Singh ASI, PW5 stated that he conducted investigation in this case. Dr. H.S.Bhatia, Surgical Specialist, PW6 gave surgical opinion regarding injuries of Malkit Singh. The same is as under:- “Under local anaesthesia, the injuries at the chest wall were examined. Injury no. 1, mentioned in the MLR was of size 2.5 cm x 1.5 cm and was deep upto 3.5 cm. There was injury to the pleura and parachyma of the lung (left). The air was gushing out from this injury and also there was surgical emphysema of the chest wall, abdomen, neck and back. This wound was stitched in two layers with chromaccatgute and silk and wound was sealed with gauge and adhesive plaster. Injury no. 2, mentioned in the MLR was of size 2 cm x 1 cm and was muscle deep which was stitched under local anaesthesia and silk and a septic dressing done. Injury no. 1 was grievous in nature and Criminal Appeal No. 228-SB of 2001 -6- could have been proved dangerous to life if timely surgical intervention could not have been done. Injury no. 2 mentioned in the MLR was simple in nature.” MHC Jasbir Singh, PW7 and Sandeep Kumar, Malkhana Moharrir, PW10 are formal witnesses regarding deposit of case property and stated accordingly. Dr. Jagjiwan Lal, Radiologist, PW8 stated that he radiologically examined injured Malkit Singh and reported as under:- “X-ray chest:- P.A. View left cast of phrenic angle was obliterated due to air fluid level. Mediastinum was shifted towards the right side.” Sukhjinder Singh, Reader, PW9 stated about partition proceedings between the parties. The accused in their examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. It was alleged that accused Shiv Singh and Harjit Kaur (since acquitted) were not present at the spot. It was also pleaded that complainant party opened the attack and caused injuries to accused Jassa Singh and Kashmir Singh and false case was lodged as counter blast. In defence, the accused examined Dr. Gopal Raj, DW1. He stated that he medico legally examined Jassa Singh accused and found eight injuries caused with blunt weapon and after x-ray examination, all the Criminal Appeal No. 228-SB of 2001 -7- injuries were declared simple in nature. He also stated that he also medico legally examined Kashmir Singh accused and found a reddish contusion with multiple abrasions caused by blunt weapon. It was simple injury. Learned Additional Sessions Judge vide impugned judgment dated 31.1.2001 acquitted accused Shiv Singh and Harjit Kaur giving them benefit of doubt and convicted the remaining three accused Jagir Singh, Ghola alias Kashmir Singh and Jassa alias Jassa Singh of the offences with which they had been charged and after hearing the parties on quantum of sentence, imposed sentence on the convicts vide order of even date. Accused Kashmir Singh alias Ghola has been sentenced to rigorous imprisonment for three years and to pay fine of Rs 1000/- and in default thereof, to undergo further rigorous imprisonment for six months for offence under section 307 IPC and has been awarded lesser sentences for the other offences. Accused Jagir Singh has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs 450/- and in default thereof, to undergo further rigorous imprisonment for six months for offence under section 307 IPC read with section 149 IPC and has been awarded similar or lesser sentences for other offences. Jassa Singh convict has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs 500/- and in default thereof, to undergo further rigorous imprisonment for six months under section 307 IPC read with section 149 IPC and has been awarded similar or lesser sentences for remaining offences. All the sentences of the convicts have been ordered to run Criminal Appeal No. 228-SB of 2001 -8- concurrently. Feeling aggrieved, the three convicts have preferred Criminal Appeal No. 228-SB of 2001 whereas complainant Suba Singh has filed Criminal Revision No. 1614 of 2001. I have heard learned counsel for the parties and perused the case files with their assistance. Learned counsel for the convicts vehemently contended that accused Jassa Singh suffered eight injuries and accused Kashmir Singh suffered one injury as stated by Dr. Gopal Raj, DW1 but the said injuries have not been explained by the prosecution and therefore, the appellants deserve benefit of doubt. It was contended that injuries to complainant party were caused in self defence. Reliance has been placed on two judgments of this Court i.e. Nathu Ram and others vs. State of Haryana, 2004(1) RCR (Criminal) 666 and Jarnail Singh and others vs. State of Punjab, 2007(3) RCR (Criminal) 592. It was also pointed out that ASI Sharam Singh, PW5 admitted that MLRs of Jassa Singh and Kashmir Singh accused had been given to him during investigation. It was contended that in spite thereof, counter version of the accused was not investigated. Counsel for the appellants also contended that occurrence took place in the house of Bachan Singh, Sarpanch in his presence, but Bachan Singh has not been examined as witness by the prosecution. It was further pointed out that the occurrence took place at the spur of moment when during talks for amicable settlement, tempers ran high and both parties exchanged hot words and therefore, offence under section 307 IPC is not Criminal Appeal No. 228-SB of 2001 -9- made out. Reliance in support of this contention has been placed on judgment of this Court in Som Dutt vs. State of Haryana, 2009(4) RCR (Criminal) 673. It was also pointed out that Dr. HS Bhatia, PW6 has opined that injury no. 1 on Malkit Singh could have been dangerous to life if timely surgical intervention had not been done. It was thus submitted that injury was not dangerous to life. Dr. Bhatia also admitted that he did not conduct any operation on the patient. It was accordingly argued that the act of the accused does not fall within the parameters of section 307 IPC. Counsel for the appellants also prayed for reduction in sentence submitting that the occurrence took place 14 years ago. Counsel for the appellants, on instructions from Ghola alias Kashmir Singh accused who is stated to be presented in person in Court, also submitted that suit filed by Malkit Singh injured for damages was decreed for recovery of Rs 30,000/- against accused persons and the said compensation amount has since been paid to him and the appellants are ready to pay more compensation to the complainant party. On the other hand, learned State counsel contended that injuries on the person of Jassa Singh and Kashmir Singh accused were simple in nature and could possibly be self suffered. It was also contended that ASI Sharam Singh, PW5 denied the suggestion that the complainant party had opened the attack and the accused in exercise of right of private defence caused injuries to the complainant party. It was also submitted that the Criminal Appeal No. 228-SB of 2001 -10- appellants had come armed with weapons and it was pre-planned attack by them and injury no. 1 of Malkit Singh was grievous and very serious in nature and therefore, offence squarely falls under section 307 IPC. Prayer for reduction in sentence was also opposed by State counsel. Learned counsel for the complainant – petitioner argued in the revision petition that guilt of accused Shiv Singh and Harjit Kaur also stands proved from the prosecution evidence. It was pointed out that Harjit Kaur actively participated in the occurrence by catching hold of the hair of Malkit Singh injured. It was accordingly submitted that Shiv Singh and Harjit Kaur accused also deserve to be convicted. Prayer for enhancement of sentence of the three convicts was also made by counsel for the complainant. I have carefully considered the rival contentions. First of all taking up the revision petition preferred by the complainant, I find that Shiv Singh and Harjit Kaur have been rightly acquitted by the trial court. Shiv Singh was not even present at the spot when negotiations for amicable settlement of the dispute between the parties started. He allegedly came to the spot later on. Both Shiv Singh and Harjit Kaur were also empty handed whereas the three convicts were armed i.e. Kashmir Singh and Jagir Singh were armed with dattars (sharp edged weapons) whereas accused Jassa Singh was armed with lathi. No active role has been attributed to Shiv Singh and Harjit Kaur accused except that Shiv Singh allegedly raised lalkara and Harjit Kaur allegedly caught hold of the hair of Malkit Singh. Criminal Appeal No. 228-SB of 2001 -11- For all these reasons, these two accused have been rightly given benefit of doubt by the trial court. It may also be added that there is general tendency to rope in innocent persons along with real culprits. It appears that along with the real culprits i.e. the three convicts, the remaining two accused Shiv Singh and Harjit Kaur were also implicated. Consequently, impugned judgment acquitting Shiv Singh and Harjit Kaur does not warrant interference in exercise of revisional jurisdiction. It may be added that there is presumption of innocence in favour of every accused. The presumption of innocence gets doubly strengthened and reinforced by judgment of acquittal. Even if two views are possible, view favourable to the accused has to be accepted. In the instant case, the trial court has taken reasonable view of the evidence on record to order acquittal of Shiv Singh and Harjit Kaur giving them benefit of doubt. There is no infirmity much less illegality or perversity in ordering their acquittal. Consequently, the revision petition is meritless. It may be added that in the revision petition, prayer has also been made for modification of sentence of the three convicts, but the three convicts have not been arrayed as party in the revision petition. Consequently, modification of their sentence by enhancing the same cannot be ordered. Even otherwise, there is no ground for enhancing the sentence of the convicts as would be discussed while dealing with the prayer of the convicts for reduction in sentence. Now coming to the appeal preferred by the three convicts, the Criminal Appeal No. 228-SB of 2001 -12- contention that prosecution case is doubtful because injuries to accused Jassa Singh and Kashmir Singh have not been explained, cannot be accepted. Injuries on the persons of these two accused were simple. Kashmir Singh had only a contusion with abrasions. Jassa Singh, of course, had eight injuries. However, all the said injuries were found to be simple. Both these accused reached the hospital at 7.30 PM whereas injured Malkit Singh had reached hospital at 6.10 PM. Prosecution case cannot be discarded merely because simple injuries of these two accused have not been explained. Judgments in the cases of Jarnail Singh (supra) and Nathu Ram (supra) are completely distinguishable on facts. On the other hand, in the instant case, the occurrence stands admitted. Place of occurrence has also not been disputed. Presence of the three convicts at the spot at the time of occurrence has also been admitted. FIR was lodged by the complainant party without any delay narrating detailed version of the occurrence. On the other hand, the accused have not come out with any counter version. During investigation, they did state some version before the Investigating Officer, but the said version has not seen the light of the day during trial. It was not suggested to the prosecution witnesses nor stated by the convicts in their own examination under section 313 Cr.P.C. as to in what manner, the occurrence had taken place according to them, except that the complainant party had opened the attack and the convicts acted in self defence. However, the accused have not come out with any version as to how the occurrence started and who out of complainant party Criminal Appeal No. 228-SB of 2001 -13- caused injuries to accused Jassa Singh and Kashmir Singh. There is only medical evidence regarding injuries to these two accused. There is not even an iota of material on record to substantiate the defence version that the complainant party was the aggressor and the convicts acted in self defence. On the other hand, there is consistent evidence of the prosecution that the convicts opened the attack and caused injuries to the complainant party. Medical evidence also corroborates the prosecution version. It may also be added that the accused have also not lodged any complaint against the complainant party regarding injuries suffered by Jassa Singh and Kashmir Singh. Consequently, it cannot be said that complainant party was aggressor and the convicts acted in self defence. There is no material at all in support of this contention. On the other hand, ASI Sharam Singh, PW5 specifically denied the defence version that the complainant party opened the attack and the convicts acted in exercise of right of private defence while causing injuries to the complainant party. The stand taken by the convicts rather shows that they had actually caused injuries to the complainant party. There is also consistent evidence of the prosecution in this regard. Statements of complainant Suba Singh and Malkit Singh could not be shaken in their cross-examination. They have stood the test of cross- examination. Their presence at the spot is also not doubtful. Injuries caused to both of them as well as Tarlok Singh on their side have also been proved by medical evidence. The prosecution evidence is consistent, cogent, reliable and sufficient to bring home the guilt against the three Criminal Appeal No. 228-SB of 2001 -14- convicts beyond reasonable doubt. As regards non examination of Bachan Singh, Sarpanch as prosecution witness, the prosecution gave up Bachan Singh has having been won over by the accused. Even the accused have not examined Bachan Singh in their defence. Moreover, when the occurrence stands admitted and presence of the three convicts as well as the three injured on the complainant side stands admitted and the place of occurrence also stands admitted and causing of injuries by the convicts to the complainant also stands admitted, non examination of Bachan Singh by the prosecution pales into insignificance. The contention that the occurrence took place at the spur of the moment without any preplanning when both parties exchanged hot words, is also untenable. The three convicts came armed with weapons although Bachan Singh, Sarpanch had invited both the parties to settle their dispute amicably. The very fact that Kashmir Singh and Jagir Singh were armed with dattars and Jassa Singh was armed with lathi would depict that they had gone well prepared to attack the complainant party and to cause injuries to them. Consequently, judgment in the case of Som Dutt (supra) is not attracted to the facts of the case in hand. As regards the question whether injury no. 1 of Malkit Singh falls within the purview of section 307 IPC or not, details of injuries suffered by Malkit Singh have been extracted hereinbefore and opinion of Dr. HS Bhatia, PW6 has also been reproduced. Both injuries to Malkit Criminal Appeal No. 228-SB of 2001 -15- Singh were caused with sharp deadly weapon. Both the injuries were caused on vital parts of the person of Malkit Singh. Both injuries were caused with great force. Both incised wounds of Malkit Singh were bleeding profusely. The wounds had to be sealed immediately with antiseptic dressing even before examining the patient medico legally. It depicts the serious nature of the injuries. Injury no. 1 was incised wound of 2.5 cm x 1.5 cm and it was found to be 3.5 cm deep as stated by Dr. HS Bhatia, PW6. Depth of the said injury caused on vital part would clearly demonstrate the intention and knowledge of the convicts that the injury was likely to cause death and had been caused with said intention. As a result of said injury, there was also injury to pleura and paranchyma of left lung. Thus, even left lung was injured. Air was gushing out of both the injuries. There was also surgical emphysema of the chest wall, abdomen, neck and back. Injury no. 1 was stitched into two layers under local anaesthesia and was sealed with gauge and adhesive plaster. Injury no. 2 was also stitched under local anaesthesia and septic dressing was done. Injury no. 1 was also grievous in nature. Thus, from the very nature of the injuries caused to Malkit Singh and particularly injury no. 1, it becomes manifest that the said injury was caused with intention to cause death of Malkit Singh and the convicts knew that the said injury was likely to cause death of Malkit Singh. Consequently, offence squarely falls within the parameters of section 307 IPC. From the aforesaid discussion, it emerges that prosecution has Criminal Appeal No. 228-SB of 2001 -16- led sufficient, cogent and credible evidence to prove the guilt of the appellants beyond reasonable doubt. Their conviction is well founded. However, since only three out of five accused have been convicted, section 149 IPC which requires involvement of at least five persons would not be attracted. However, in place of section149 IPC, section 34 IPC would be attracted as all the three appellants had common intention as they had come prepared to attack the complainant party. Consequently, conviction of the appellants with the aid of section 149 IPC is modified and converted into conviction with the aid of section 34 IPC. With this modification, impugned judgment of conviction is affirmed. As regards quantum of sentence, there are aggravating and mitigating circumstances. The occurrence took place 14 years ago. This is mitigating circumstance in favour of the convicts. Payment of compensation as stated by counsel for the appellants is also a circumstance in their favour, although not of much significance. On the other hand, the sentence imposed by the trial court on the convicts is not excessive and is rather on the lenient side. Accused Kashmir Singh has been sentenced to imprisonment for three years only,besides fine of Rs 1000/-, for substantive offence under section 307 IPC whereas the remaining two convicts have been