Criminal Revision No. 1703 of 2002 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1703 of 2002 Date of Decision: 6.4.2010 Dev Raj and Others …Petitioners Versus State of Punjab and Another …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Mandeep Singh Bedi, Senior Advocate with Mr. A.S. Khinda, Advocate for the petitioners. Mr. J.S. Bhullar, Assistant Advocate General, Punjab, for respondent No.1. None for respondent No.2. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been preferred by Dev Raj, Sansar Chand, Rattan Lal, sons of Sewa Ram, Yash Pal son of Shardha Ram and Chhinda son of Sansar Chand. They were prosecuted in a complaint filed by Harnam Singh son of Lachhman Singh and were summoned to stand trial for the offence under Sections 447, 324, 323,148 and 149 IPC. The trial Court, vide its judgment dated 30.3.2001, held the petitioners guilty for the offence under Sections 148, 149, 324, 323 and 447 IPC. Vide separate order of even date, they were sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine Criminal Revision No. 1703 of 2002 2 of Rs.200/- each, in default whereof to further undergo rigorous imprisonment for a period of ten days, for the offence under Sections 148/149 IPC. They were also sentenced to undergo rigorous imprisonment for a period of one year and six months and to pay a fine of Rs.500/- each, in default whereof to further undergo rigorous imprisonment for a period of 15 days, for the offence under Section 324 IPC. They were also sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.200/- each, in default whereof to further undergo rigorous imprisonment for a period of ten days, for the offence under Sections 323 and 447 IPC. All the sentences were ordered to run concurrently. Aggrieved against their conviction and sentence, the petitioners had preferred an appeal, which was also dismissed by the Court of Additional Sessions Judge, Gurdaspur, vide its judgment dated 12.8.2002. The complainant/respondent No.2 has also preferred a revision petition for enhancement of sentence awarded to the accused/petitioners by the trial Court and the same was also dismissed by the Court of Additional Sessions Judge, Gurdaspur, vide same order dated 12.8.2002. On 1.2.2010, this Court has issued a notice to the complainant/respondent No.2. The Registry has reported that the notices were received by him but he refused to sign the same. Therefore, this Court has no option but to proceed further in the matter. The occurrence, in the present case, had taken place on 28.6.1996 at about 4.00 P.M. The complaint was instituted on Criminal Revision No. 1703 of 2002 3 30.9.1996, after a delay of 92 days of the occurrence. It was stated that accused Dev Raj, Yash Pal and Rattan Lal were armed with dattar, whereas accused Sansar Chand and Chhinda were armed with gandasis. They had stopped PW.2 Gaurjit Pal Singh from ploughing the fields. Accused Chhinda had raised a lalkara and accused Dev Raj gave a dattar blow on the left arm of the complainant and accused Yash Pal also gave a dattar blow on his left elbow. Sansar Chand gave a gandasi blow from the reverse side, which hit on the left side of the neck of Inder Singh and Rattan Lal gave a dattar blow on the back of his head. When Gaurjit Pal Singh and Balwinder Singh had tried to intervene, accused Chhinda gave a gandasi blow from reverse side on the head of Gaurjit Pal Singh and when he raised his hands to ward off the blow, the same hit on his right thumb. Accused Sansar Chand gave a gandasi blow from reverse side on the left arm of Balwinder Singh. Accused Chhinda gave two gandasi blows from reverse side on the forehead and back side of the chest of Balwinder Singh. On the alarm raised, the accused decamped from the spot. The injured were got admitted at Primary Health Centre, Naushera Majja Singh. The police had recorded the statement of complainant but no action was taken. Therefore, the complainant had to file the complaint. The complainant himself appeared as PW.1, Gaurjit Pal Singh as PW.2, Balwinder Singh as PW.3, Dr. H.S. Bajwa as PW.4 and Nathi Lal Masih as PW.5. PW.1 Harnam Singh, complainant, had suffered two simple incised wounds on his left forearm and left elbow, whereas PW.2 Gaurjit Pal Singh had suffered an abrasion. Criminal Revision No. 1703 of 2002 4 Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them. Accused Dev Raj stated that they were in possession of the land and were implicated in the false case. The complainant party wanted to take possession of the land and when they resisted the attempt of the complainant, they had caused injuries. Accused Yash Pal, Chhinda and Rattan Lal had followed the version given by accused Dev Raj. In defence, the accused had examined Dr. Jagjiwan Lal, Radiologist, as DW.1, who stated that on 29.6.1996, he had medicolegally examined Bachan Kaur wife of Sansar Chand and found two fractures. There was a fracture of left ulna and of left fibula of left ankle. DW.2 Dr. Gopal Raj had medicolegally examined Surinder Pal and found nine injuries on his person. Injury Nos. 1 and 2 were on his head. This witness has also examined Bachan Kaur and found seven injuries on her person. Injury Nos. 2 were declared as grievous. Dalip Kaur wife of Bachan Singh had received one injury which was also declared as simple. The injuries suffered by the complainant, his family members and Gaurjit Pal Singh have been detailed in the judgment rendered by the trial Court and to avoid repetition thereof, the same are not reproduced here. PW.1 Harnam Singh has stated that PW.2 Gaurjit Singh owned, lot of land in the village. Balwinder Singh is his Munshi. This witness denied that Sewa Ram, father of the accused, was a cultivating Criminal Revision No. 1703 of 2002 5 tenant under the father of Gaurjit Pal Singh. However, he admitted that Sewa Ram had never given the symbolic or physical possession of the land to Gaurjit Pal Singh. It was further admitted that a case is pending against Gaurjit Pal Singh and his brothers for causing injuries to Bachan Kaur, Dalip Kaur and Surinder Pal Singh. Gaurjit Pal Singh, in his cross- examination, stated that Sewa Ram, father of the accused, was Mujara (tenant) over the land. The litigation was pending before the revenue authorities. As per the rapat roznamcha, they had taken a symbolic possession of the land, but in cross-examination, this witness stated that he was not aware of the khasra numbers of the land of which physical possession was taken. This witness, however, failed to disclose any specific khasra number, of which the symbolic possession was taken. This witness further admitted that when his servant had restrained Surinder Pal Singh from ploughing the land, the occurrence had ensued and Surinder Pal Singh, Bachan Kaur and Dalip Kaur had suffered injuries. The trial Court denied the right of self defence to the accused and held as under:- “16. But I do not find any substance in this allegation. DW.2 Dr. Gopal Raj himself has admitted in his cross-examination that all the injuries on the person of Surinder Pal, Bachan Kaur and Dalip Kaur are superficial. The possibility of injuries on the person of Surinder Pal and Dalip Kaur being self-suffered cannot be ruled out. He has further admitted that there is possibility that injuries on the Criminal Revision No. 1703 of 2002 6 person of Bachan Kaur could have been easily caused by friendly hand weapon”. The lower Appellate Court rejected that very arguments of self-defence of the accused by observing as under:- “14. I have considered the arguments of the ld. Counsel for both the parties and have also gone through the evidence and documents on record. As per the complainant's version, the occurrence took place on 28.6.96 on the land bearing Rect. No. 27R, Killa No. 7/8. In order to establish the possession of Gurjit Pal Singh and others the ld. Counsel for the complainant has placed on record copy of jamabandi Ex.PG and Khasra Girdawari, Ex.PF. The ld. Counsel for the appellants-accused has tried to establish that it were the accused-persons, who were in possession of this property and it were the complainant Gaurjit Pal Singh and others, who were trying to dispossess them forcibly and the occurrence took place in which Bachan Kaur, Dalip Kaur and Surinder Pal received injuries. But the argument advanced by the ld. Counsel for the appellants/accused regarding their possession over the abovesaid khasra number does not hold any ground in the presence of documentary evidence present on the file. In the jamabandi and khasra Girdawari Ex.PG and Ex.PF, there is entry of report Criminal Revision No. 1703 of 2002 7 No. 226 dated 2.6.94 vide which Sarabjit Singh, Gaurjit Pal Singh sons, Gurbinder Kaur daughter and Devinder Kaur widow are given possession of the land. The occurrence took place in June, 1996 much later when they were already in possession of this property. In the presence of the documentary evidence regarding possession of land, the oral statement cannot be taken into consideration. Moreover, Gurjit Pal Singh, P.W.2 never admitted the possession of accused-party over this piece of land. If the cross-examination of Gaurjit Pal Singh is read in continuity it shows that the occurrence took place on the land regarding which they had obtained symbolic possession in the year 1994. So from the cross-examination of this witness, it cannot be concluded that Gaurjit Pal Singh and others were not in possession of this property. The plea taken by the ld. Counsel for the appellants/accused that the complainant were the aggressor party and they were not having right of private defence is without any basis. In view of the facts of the case, the authorities referred to by the ld. Counsel for the appellants/accused are not applicable to the facts of the present case”. I have heard learned counsel for the parties and have perused the record. Criminal Revision No. 1703 of 2002 8 From the evidence led by the complainant, it is evident that PW.2 Gaurjit Pal Singh is a big landlord. He admitted that Sewa Ram, father of accused, was in cultivating possession of the land as a tenant. From the prosecution case, no document has been produced to show that the physical possession of the land was taken by the complainant party. Furthermore, roznamcha entry only proved that the symbolic possession was taken over by the complainant party. Recording of the possession in the revenue record, at the most, also proves to be of a symbolic possession by the complainant party, however, actual physical possession of the land remains with the accused. Surinder Pal Singh had suffered nine injuries out of which there were two grievous injuries. Two injuries were on head. Bachan Kaur and Dalip Kaur, have also suffered injuries. Detail of injuries on the accused party has been recapitulated while noticing testimony of DW.1 Dr. Jagjiwan Lal and DW.2 Dr. Gopal Raj. Thus, this Court cannot ignore the fact that the complaint was filed by an employee of Gaurjit Pal Singh after 92 days. In these circumstances, it is not safe to uphold the conviction of the present petitioners and a benefit of doubt can be extended to them as the version projected by the defence is more probable. Hence, the present revision petition is accepted. The conviction and sentence awarded to the petitioners are set aside. They are acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge April 6, 2010 “DK”