IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 224-SB of 1996 Date of Decision : January 07, 2010 Dharam Pal ....Appellant Versus State of Haryana .....Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. P.S. Ahluwalia, Advocate for the appellant. Mr. Y.P. Malik, Deputy Advocate General, Haryna None for the complainant. T.P.S. MANN, J.(Oral) Dharam Pal, one of the convicted accused, has filed the present appeal against the judgment and order dated 7.3.1996 passed by Additional Sessions Judge, Kurukshetra whereby he was convicted under Section 326 IPC and sentenced to rigorous imprisonment for three years and to pay a fine of Rs.11,000/-. In default of payment of fine, he was directed to further undergo rigorous imprisonment for six months. The occurrence in question had taken place on 23.6.1993 at 7.00 P.M. in the area of village Kharha Sahab. At that time, Chander Bhan injured, while going from his house to the Bara, reached near the Chopal and saw the three accused standing there, who had come out in Criminal Appeal No. 224-SB of 1996 -2- the street from the house of Dharam Pal accused. Dharam Pal accused was carrying gandasi, Mihan Singh accused with lathi, while the third accused Roshan Lal was empty handed. A lalkara was raised by Roshan Lal to catch hold of Chander Bhan as he was going all alone. Dharam Pal inflicted gandasi blow on the head of Chander Bhan, who raised an alarm that he was being attacked. His alarm attracted his mother- Sundero Devi to the spot, but she was also given a lathi blow on the dorsum of her left hand by Mihan Singh accused. The occurrence was also seen by Suraj Bhan, brother of Chander Bhan injured, who rescued the victims from the assailants. Both the injured were later on got admitted in the hospital. The cause of the occurrence was that there used to remain a dispute between the complainant on the one hand and the accused on the other over the distribution of Bara. Even ten days earlier to the incidence in question, there was exchange of abuses between them. However, the matter was resolved at the intervention of the Panchayat. Inspite of this, the accused nourished a grudge against them. On the basis of statement made by Chander Bhan injured before the police on 24.6.1993, FIR Ex.PQ/2 was registered at Police Station, Pehowa. Pursuant to the registration of the FIR, the police arrested the accused. Mihan Singh accused produced the lathi said to have been used by him, while Dharam Pal accused got recovered gandasi on the basis of the disclosure statement made by him. Initially, Criminal Appeal No. 224-SB of 1996 -3- FIR stood registered for offences under Sections 323, 326/34 IPC but, later on, after obtaining opinion Ex.PM/1 from the doctor about the injury on the person of Chander Bhan injured being dangerous to life, the police added the offence under Section 307 IPC to the heading of the FIR. The accused were re-arrested and, thereafter, released on bail. After completion of the investigation, the police presented final report under Section 173 Cr.P.C. against all the three accused. It was followed by commitment of the case to the Court of Session, where vide order dated 4.4.1994 charges under Sections 307/326/324/323/34 IPC were framed against the accused. In support of its case, the prosecution examined PW1 Dr. K.K. Chawla, who proved his report Ex.PA vide which he found depressed fracture of left parietal bone of Chander Bhan injured on the basis of his radiological examination. PW2 Dr. Jagmal Singh deposed about the medico legal examination of Roshan Lal accused. He also stated on the basis of the x-ray report that there was depressed fracture of left parietal on the person of Chander Bhan injured. PW3 SI Chandgi Ram deposed about presentation of the final report under Section 173 Cr.P.C. PW4 Dr. S.K. Nagpal deposed about medico legal examination of Chander Bhan injured on 24.6.1993 at 10.30 P.M. in CHC, Pehowa and noticed the following injuries :- “1. There was an incised wound 5 cm x 1 cm x 1.25 cm on the left side on the scalp over the Criminal Appeal No. 224-SB of 1996 -4- parietal region just away from the mid line and the lateral end of the injury was 8 cm above the left tragus of the ear. Margins were clear cut and well defined. Bleeding was present. Advised x-ray. 2. Complain of weakness in the right upper and lower limb. On examination there was difficulty in walking. Patient was unable to lift the upper limb. The injury was kept under observation.” He also deposed that he had medico legally examined Smt. Sundro Devi and found the following injury on her person :- “There was a diffuse swelling 8 cm. x 5 cm. on the posterior aspect of the left forearm in its lower half. There was a contusion with abrasion 4 cm. x .5 cm. over the injury just described. Contusion was red in colour and oozing was present from the abrasion. Tenderness was present. Advised x-ray. He stated that he gave his opinion during the investigation of the case that the injuries on the person of Chander Bhan could be caused by gandasi Ex. P1 and injury No.2 on the person of Chander Bhan being outcome of injury No.1. Chander Bhan and Smt. Sundero Devi injured appeared as PWs 5 and 6, respectively. PW7 ASI Tara Chand proved the formal FIR Ex.PQ/2, while PW8 Bachan Singh was witness of the disclosure statement made by Dharam Pal accused Criminal Appeal No. 224-SB of 1996 -5- leading to recovery of the gandasi. PW9 SI Om Parkash stated about converting the offence to Section 307 IPC after obtaining opinion Ex.PM/1 from the doctor. Site Plan Ex.PX was proved by PW10 Sita Ram, Draftsman. SI Shamsher Singh, while appearing as PW11 deposed about the investigation conducted by him in the case. PW 12 Dr. S.M. Mehta proved the operation notes made by Dr. S.K.Sharma, who had examined Chander Bhan in Medical College, Rohtak on 1.7.1993. In their statements recorded under Section 313 Cr.P.C., the accused denied the prosecution allegations and pleaded innocence. According to them, Chander Bhan injured received injures when he fell in the Nali of his own. After hearing learned counsel for the parties and going through the evidence, the trial Court believed the prosecution case regarding causing of injuries by Dharam Pal accused to Chander Bhan and by Mihan Singh accused to Smt. Sundero Devi. However, it was held that the provisions of Section 34 IPC were not applicable to the facts and circumstances of the case and both the aforementioned accused were responsible for the injuries attributed to them. Accordingly, Dharam Pal appellant was convicted only under Section 326 IPC for causing grievous injury on the person of Chander Bhan injured and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.11,000/-. Mihan Singh was held liable under Section 323 IPC but released on probation. The third accused, namely, Criminal Appeal No. 224-SB of 1996 -6- Roshan Lal was, however, acquitted all of the charges against him. I have heard learned counsel for the parties and scanned the evidence with their able assistance. The testimonies of PW5 Chander Bhan and PW6 Sundero Devi inspires confidence as both of them bore the brunt of the injuries. While Chander Bhan injured had received a gandasi blow on his head at the hands of Dharm Pal, his mother Sundero Devi had received injury on the posterior aspect of the left forearm in its lower half caused by Mihan Singh. The injuries received by both the injured were duly corroborated by the medical evidence. Though as per the medical evidence, Chander Bhan injured had two injuries on his person yet as per the opinion Ex.PH/1 given by Dr. S.K. Nagpal PW4, injury No.2 could be the outcome of injury No.1. PW2 Dr. Jagmal Singh deposed about the presence of three injuries on the person of Roshan Lal accused but the nature of these injuries were such that they could be self suffered or self inflicted. None of them was on any vital part. The incised wound was present on the left little finger with no corresponding injury on the other fingers of Roshan Lal accused. As such, the trial Court found it to be of no consequence that the prosecution had not explained the injuries on the person of the accused. The injury attributed to Dharam Pal accused on the person of Chander Bhan injured was caused with a gandasi. According to the medical evidence, it was an incised wound 5 cm. x 1 cm. x 1.25 cm. on Criminal Appeal No. 224-SB of 1996 -7- the left side of the scalp over the parietal region. The margins were clear cut and well defined. PW1 Dr. K.K. Chawla had conducted radiological examination of Chander Bhan and found that there was a depressed fracture of left parietal bone. Under these circumstances, it can safely be concluded that it was a grievous injury. As such, Dharam Pal accused was rightly convicted for the offence under Section 326 IPC for causing the said injury. The parties are closely related to each other, being first cousins. Earlier to the occurrence, there used to remain some dispute between them in respect of the Bara and there had been exchange of abuses between them. Apparently, there was no serious dispute between the parties. The occurrence in question had taken place more than 16 years back and all this while the appellant had been suffering the agony of criminal prosecution. It is also available on the record that the appellant was arrested on 28.6.1993 and released on bail on 28.7.1993. Later on, the offence under Section 307 IPC was added to the heading of the FIR and the appellant was re-arrested on 19.8.1993 and released on 7.9.1993. Thus, the appellant has remained behind the bars for a period of about two months. Taking the aforementioned facts into consideration, this Court is of the view that no useful purpose would be served by sending the appellant behind the bars once again so as to serve his remaining sentence. The sentence of imprisonment can, therefore, be reduced to that already undergone by him. At the same Criminal Appeal No. 224-SB of 1996 -8- time, the fine of Rs.11,000/- imposed upon the appellant by the trial Court can be enhanced to Rs.31,000/- so as to pay the enhanced amount of Rs.2,000/- to injured Chander Bhan as compensation. Resultantly, the conviction of the appellant under Section 326 IPC is maintained, his sentence of imprisonment is reduced to that already undergone by him, whereas the fine of Rs.11,000/- imposed by the trial Court is enhanced to Rs.31,000/-. Whole of the enhanced amount of fine on its realisation be also paid to injured Chander Bhan as compensation. The appeal is, accordingly, disposed of. The appellant shall deposit the enhanced amount of fine with the trial Court within three months from today. In default of payment of fine, the appellant shall undergo RI for six months. ( T.P.S. MANN ) January 07, 2010 JUDGE satish