Crl.Appeal No. 1316-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1316-SB of 2002 Date of decision:4.10.2010 Minesh @ Tiger and others … Appellants Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Gautam Dutt, Advocate, for the appellants. Mr.Paramjit Batta, Addl.AG, Haryana. … JORA SINGH, J. Minesh @ Tiger and others directed this criminal appeal against the judgment of conviction dated 8.8.2002 and order of sentence dated 9.8.2002 passed by Additional Sessions Judge (Adhoc), Fast Track Court-II, Faridabad, in Sessions Case RBT No. 2 of 22.12.2001/24.9.1997, arising out of FIR No. 350 dated 5.6.1997 under Sections 148/149/323/325/307 IPC, PS Old Faridabad. By the said judgment, they were convicted under Sections 325/323/149/307 IPC and sentenced to undergo as under:- “ Under Section 307 IPC Minesh @ Tiger, Ravinder @ Binder and Mahipal RI for five years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months each. Under Sections 325/149 IPC Minesh @ Tiger, Ravinder @ Binder and Mahipal, Sharda Ram, Begh Raj and Madan Lal RI for three years and to pay a fine of Rs.500/- each Under Sections 323/149 IPC Crl.Appeal No. 1316-SB of 2002 2 Minesh @ Tiger, Ravinder @ Binder and Mahipal, Sharda Ram, Begh Raj and Madan Lal RI for six months each Under Section 148 IPC Minesh @ Tiger, Ravinder @ Binder and Mahipal, Sharda Ram, Begh Raj and Madan Lal RI for one year. In default of payment of fine of Rs.500/-, to further undergo imprisonment for three months each.” All the sentences were ordered to run concurrently. Prosecution story, in brief, is that Bir Singh, complainant, is the resident of Village Nacholi and was serving as Naib Reader in the SP office, Gurgaon. On 5.6.1997, he was on casual leave and was present in his house. At about 8.00 AM, he was going towards the house of Fateh Singh, Namberdar, to lodge protest against installation of a thrasher about two months back and also about fixing of pegs to block the passage near his house. Civil litigation was pending amongst the parties. When Bir Singh was present near the chowk, then sighted Minesh @ Tiger, Mahipal and Ravinder @ Binder armed with lathis and ballam. They were on a tractor. Minesh was driving the tractor and drove the tractor towards the complainant to run over him. Complainant tried to save himself. Then after alighting from the tractor, Minesh and Ravinder caught hold the complainant. Mahipal gave lathi blow on his head. Raula was raised and on hearing raula, his brothers Karam Singh, Satbir and Ram Niwas came at the spot. Sharda Ram and Begh Raj armed with lathis and Madan Lal armed with a ballam also came at the spot. On receipt of injuries, complainant fell down and became unconscious for some time. Then Madan Lal gave a ballam blow lathiwise on the head of Karam Singh. Sharda Ram and Begh Raj also gave lathi blows to Karam Singh. Binder gave a ballam blow on Crl.Appeal No. 1316-SB of 2002 3 the head of Satbir. Tiger gave lathi blow on the left hand of Satbir. Binder again tried to give ballam blow to Satbir, who fell down on the ground. Madan Lal gave ballam blow lathiwise to Ram Niwas. On hearing raula, Parkash and Tej Singh came at the spot. Then the accused had fled away from the spot with their respective weapons. Injured were shifted to Escorts Medical Centre, Faridabad. Information was given to the concerned police station and on receipt of information, Investigating Officer had gone to Escorts Medical Centre, Faridabad. After getting opinion from the doctor regarding the fitness of the injured, statement of Bir Singh (Ex.PB) was recorded. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR (Ex.PB/2) was recorded. Accused were arrested. Weapons of offence were recovered. After completion of investigation, challan was presented in Court. Accused were charged under Sections 148/323/325/307 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Constable Anoj Kumar had simply prepared scaled site plan (Ex.PA). PW2 Bir Singh, complainant-injured, and PW3 Karam Singh, injured eye witness, on oath supported the prosecution story by saying that the appellants fully armed had caused injuries to them and Satbir and Ram Niwas also. PW4 SI Sushil Kumari had prepared report under Section 173 Cr.P.C. PW5 ASI Om Parkash had arrested the accused on 10.6.1997. Crl.Appeal No. 1316-SB of 2002 4 PW6 Parkash Chand is the eye witness. PW7 HC Mohd. Yunis on receipt of ruqa has recorded FIR (Ex.PB/2). PW8 Dr. Abha Jyoti had x-rayed the injuries on the person of Karam Singh, Satbir, Ram Niwas and Bir Singh. PW9 SI Dharam Singh is the Investigating Officer. PW10 Dr.Alok Gupta has proved copies of MLRs (Ex.PW10/A to Ex.PW10/D) of the injured. Further stated that in view of application (Ex.PF), compound depressed fracture of skull on right side on the person of Bir Singh was detected. Injury was dangerous to life. PW11 Dr. James M. proved MLRs (Mark A to D). After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that complainant party was nursing a grudge against the accused in respect of sale agreement of some land and had attacked Mahipal, Madan Lal and Begh Raj because Bir Singh, complainant, was having influence with the police. He got this false case registered against the accused. As a matter of fact, complainant had orally transferred the land in favour of the accused. Possession was also delivered. So, there was no question to take forcible possession. Story was concocted. Complainant party was the aggressor and had caused injuries on the person of Begh Raj, Mahipal, Madan Lal and Ravinder. They had also caused injuries to the complainant party in the exercise of their right of self defence. Smt. Ram Kali, grand mother of Minesh, had filed civil suit for permanent injunction against the complainant party and that suit was decided against Crl.Appeal No. 1316-SB of 2002 5 the complainant party and in favour of Ram Kali. Order of status quo was passed by the civil Court. In defence, DW1 Dr. A.K.Gupta appeared and stated that on 5.6.1997, he had medico legally examined Ravinder and found the following injuries on his person:- “1. Lacerated wound 3.0 x 0.5 cm skin deep on midline of parietal region of scalp in posterior part. Fresh blood was present. 2. Reddish contusion 5 x 3 cm on the back of right forearm in the middle 3rd part. X-ray of right forearm was advised. 3. Reddish contusion 2.5 x 2 cm on back of right side of chest. 4. Reddish contusion 15 x 1.5 cm on front of right thigh.” On the same day, he had medico legally examined Mahipal and found the following injuries on his person:- “1. Sub-conjuctival haemorrhage of right eye in the lower half part. The haemorrhage was visible in the lower half as the upper half was swelling. The injury was referred to eye specialist for opinion. 2. Reddish contusion 15 x 4 cm on back of right arm. 3. Two reddish contusions of size 15 x 1.5 cm on back of right side of chest. X-ray was advised. 4. Reddish abrasion 3 x 1 cm with contusion on lateral aspect of left arm upper 1/3 portion.” Crl.Appeal No. 1316-SB of 2002 6 On the same day at about 11.15 AM, he had medico legally examined Madan Lal and noticed the following injuries on his person:- “1. Lacerated wound 2.05 x 2 cm into skin deep on left cheek. There was fresh bleeding. 2. Reddish contusion 6 x 2 cm on front of left thigh.” On the same day at about 11.25 AM, he had medico legally examined Begh Raj and noticed the following injuries on his person:- “1. Reddish abrasion 1 x 0.5 cm on left side of forehead. 2. Reddish abrasion 1.5 x 0.5 cm on lateral aspect of left arm. 3. Reddish contusion 6 x 1.5 cm on lateral aspect of right left in the middle 1/3 part. X-ray of right leg was advised.” DW2 Matroo stated that Sharda Ram is married to his sister. Other accused are his nephew. They are the residents of Village Nacholi and in this village, he had purchased land from Raghraj Singh as per sale deed (Ex.DW2/A) in the sum of Rs.1,75,000/-. Before this sale deed, an agreement to sell was executed on 5.3.1998 and the same is Ex.DW2/B. Rs.1,00,000/- was paid as earnest money to Raghraj Singh. After hearing learned PP for the State, learned defence counsel for the accused and from the perusal of evidence on the file, accused were convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on file. Learned counsel for the appellants argued that complainant party had transferred land in favour of the appellants. Possession was also Crl.Appeal No. 1316-SB of 2002 7 delivered. There was no question to take possession forcibly. Complainant party had attacked Mahipal, Ravinder, Madan Lal and Begh Raj. In defence, appellants had caused injuries. Complainant party was the aggressor. 13 injuries were noticed on the person of 4 appellants by Dr.A.K. Gupta. Appellants were armed with dangs/ballams. Only one injury on the person of Bir Singh was found to be grievous in nature. Fractures of ulna and tibia were possible by fall. Injury on the head was possible by brick bat. Doctor who had medico legally examined the injured was not examined for the reasons best known to the prosecution. Dr. Abha Jyoti had x-rayed the injuries. In case of Karam Singh, no gross bone injury was noticed and this fact is clear from report (Ex.PD). In case of Satbir, fracture of left ulna was noticed. In case of Ram Niwas, fracture of lateral melleolus of right tibia was noticed. In case of Bir Singh, fracture of skull was noticed. Dr. Alok Gupta in view of application (Ex.PF) dated 7.6.1997, opined that Bir Singh sustained head injury. Injury was dangerous to life. Dangerous to life means, if timely medical aid was not given to the patient, then he could have died. In case opinion of Dr. Alok Gupta is taken to be correct one, then appellants cannot be convicted under Section 307 IPC. They are liable for punishment under Section 325 IPC or 326 IPC. Learned State counsel argued that as per report of Dr.Alok Gupta, compound depressed fracture of skull was noticed on the person of Bir Singh. Number of other injuries were also noticed on the person of Karam Singh, Satbir and Ram Niwas. Appellants fully armed came and had caused injuries to the complainant party. Nature of injuries and weapons used show that intention was to murder, but luckily, Bir Singh survived. Evidence on the file was rightly scrutinized by the trial Court. Crl.Appeal No. 1316-SB of 2002 8 Allegation of the prosecution was that appellants fully armed came and had caused injuries to Bir Singh, Ram Niwas, Satbir and Karam Singh when Bir Singh was going towards the house of Fateh Singh, Namberdar, to lodge protest. Defence version of the appellants was that complainant party had executed sale agreement. Possession was also delivered to the appellants. Complainant party had attacked Mahipal, Ravinder, Begh Raj and Madan Lal. In defence, injuries were caused to the complainant party. That means, occurrence is an admitted fact. The only point is whether complainant party was the aggressor or the appellants were the aggressor. In defence, Dr. A.K. Gupta was examined. He had medico legally examined Begh Raj, Madan Lal, Mahipal and Ravinder but all the injuries were found to be simple in nature. No injury was found to be grievous or dangerous to life. No cross case was registered against the complainant party. In case police had refused to register cross case because Bir Singh was serving as Naib Reader in the SP office, Gurgaon, then appellants could easily file private complaint. When there is no cross case and no private complaint and the injuries were simple in nature, then appellants cannot argue that complainant party was the aggressor. If complainant party was the aggressor, then some of the injuries on the person of appellants should have been grievous in nature and if there is no action by the police, then private complaint should have been filed. No explanation is forth coming. Why no private complaint or cross version. Injuries on the person of four appellants were possible by fall. Injuries on the person of Begh Raj were superficial. No bone injury was noticed in respect of anyone. Suggestions were given to the injured that in self defence, injuries Crl.Appeal No. 1316-SB of 2002 9 were caused. That means, occurrence is an admitted fact. When no cross case or private complaint at the instance of the appellants, then I am of the opinion that the complainant party was not the aggressor party. As per Dr. Alok Gupta, only one injury on the person of Bir Singh was found to be dangerous to life, but question is whether in view of said injury, i.e., compound depressed fracture of skull on right side, appellants are liable for punishment under Section 307 IPC or under Section 325 IPC. Dr. Alok Gupta while appearing as PW10, then stated that in view of application (Ex.PF) dated 7.6.1997, opinion was given that Bir Singh had sustained head injury. There was compound depressed fracture of skull on right side. Injury was dangerous to life. By dangerous to life, he means if timely medical aid was not given to the patient, then he could have died. As discussed earlier, the doctor, who had medico legally examined the injured, was not produced by the prosecution. No explanation by the State counsel as to why the doctor, who had medico legally examined the injured, was not examined. Condition of the patient was not critical at any stage. BP and pulse was normal. Condition was satisfactory. PW11 Dr. James M. stated that he was working in Escorts Medical Centre, Faridabad. He has brought four original MLRs issued by Dr. Pressan Dev and the same were marked as A, B, C, D. Later on, MLRs were exhibited as Ex.PW10/A to Ex.PW10/D in view of the statement of Dr. Alok Gupta when appeared on 15.3.2002 for further examination. Dr.Alok Gupta has not categorically stated that injury on the person of Bir Singh was dangerous to life and was sufficient in ordinary course of nature to cause death. First of all, prosecution should have examined the doctor, who had medico legally examined the injured. If due to some unavoidable Crl.Appeal No. 1316-SB of 2002 10 circumstances, prosecution was not in a position to examine the concerned doctor, then Dr. Alok Gupta should have specifically stated that injury on the person of Bir Singh was sufficient in ordinary course of nature to cause death. In 1992(0) AIJEL-SC, 20828, Pashora Singh vs. State of Punjab, conviction was under Sections 307/447/326/34 IPC-No intention to murder-Injury on the body of deceased not found sufficient in ordinary course of nature to cause death-It was not established as to who was the author of the injury on the head of deceased-Accused had undergone agony of facing court proceedings for more than 10 years, had family and brother’s family to look after- Held, accused liable to be convicted for offence punishable under Sections 326/34 and not under Section 307 IPC. Relevant paras No.8 and 9 of the judgment are reproduced as under:- “8. In our view, in the facts and circumstances of the case, no offence u/s 307 of the Indian Penal Code is held established against the appellant Pashora Singh. According to the statement of Pal Singh injured himself, Pashora Singh had first given a Gandasa blow on right knee of Amar Singh. Lahora Singh then gave Gandasa blow on the right hand of Amar Singh from the reverse side. Pal Singh thereafter states that he raised an alarm and tried to intervene, when Lahora Singh gave two Gandasa blows to him. Pashora Singh also gave a Gandasa blow on his head. According to the above statement of Pal Singh, two injuries on his head were inflicted by Lahora Singh and the third one by Pashora Singh. It is an admitted case of the prosecution that the accused persons had a Crl.Appeal No. 1316-SB of 2002 11 grievance against Amar Singh and his uncle Malkiat Singh for having launched some security proceedings against the accused persons and they had come with an intention of taking revenge from Amar Singh and Malkiat Singh. According to the statement of Pal Singh, Pashora Singh had given a Gandasa blow on the right knee. Amar Singh and Lahora Singh also gave a gandasa blow on the right hand of Amar Singh from the reverse side. Admittedly, the injuries on Amar Singh are found to be simple in nature and this clearly goes to establish that the accused persons had no intention of causing death of any persons nor any injuries found on Pal Singh were stated to be sufficient in the ordinary course of nature to cause death. According to Pal Singh, when he raised an alarm and tried to intervene, Lahora Singh inflicted two Gandasa blows and Pashora Singh gave third blow on his head and thereafter the accused persons ran away. In the circumstances mentioned above, we are clearly of the view that the High Court was not right in holding that the accused had an intention to cause the death of Pal Singh or the knowledge of possible death of Pal Singh. Only injury No.1 on the head of Pal Singh has been described as dangerous to life and the High Court has itself recorded a finding that the previous litigation between the parties had nothing to do with Pal Singh and it was not established as to which of the two accused had inflicted injury No.1 on the head of Pal Singh. Thus, in the above facts it cannot be held that Pashora Singh committed any offence u/s Crl.Appeal No. 1316-SB of 2002 12 307 read with sec. 34 of the Indian Penal Code. The appellant Pashora Singh in the facts and circumstances of the case can only be held guilty for an offence u/s 326 read with sec. 34 of the Indian Penal Code. 9. So far as the question of sentence is concerned, the incident had taken place as far back as on 27.8.1981. The accused is a cultivator and has already suffered the agony of the case in the trial Court for more than one year and for more than 10 years in the High Court and this Court. The co-accused Lahora Singh, the real brother of Pashora Singh has died on 30.1.1992. It has been submitted that the burden of looking after the widow and three minor children of Lahora Singh has fallen on the shoulders of Pashora Singh apart from the burden of his own wife and three minor children. Pashora Singh has remained in jail for 52 days during the trial and is now continuing in jail after having surrendered on 28.2.1992 during the pendency of the appeal before this Court. Thus, taking in view the entire facts and circumstances of the case, we consider that justice would be met if the accused-appellant Pashora Singh is awarded a sentence of imprisonment of the period already undergone by him for the offence under Ss. 326 of the Indian Penal Code.” In 2004 (4) RCR (Crl.) 485, Mahabir and others vs. State of Haryana, Reduction in sentence- Offence under Section 307 IPC- No previous enmity- Parties descendants from common ancestors- Occurrence Crl.Appeal No. 1316-SB of 2002 13 sparked off over trifle issue-Accused facing trial for 14 years- Sentence reduced from five years to two years. In 2007(1) RCR (Crl.) 801, Nand Singh vs. State of Punjab, 17 injuries with dagger were caused by the accused and out of 17 injuries, 9 were declared dangerous to life but doctor did not describe any of those injuries to be sufficient to cause death in the ordinary course of nature. Conviction under Section 307 IPC was set aside. Accused was convicted under Section 326 IPC and sentenced to imprisonment already undergone (10 months 17 days). In the present case also, six accused were in number. Five were armed with lathis/ballams. Minesh was empty handed. He had simply caught hold Satbir and Bir Singh. In case of one injury each on the person of Satbir, Ram Niwas and Bir Singh, fracture was noticed. Number of injuries were also noticed on the person of appellants, although there was no private complaint or cross case. That means, intention was not to murder but simply to cause injuries. When none of the injuries was sufficient to cause death in the ordinary course of nature, then conviction under Section 307 IPC is not sustainable. Instead of conviction under Section 307 IPC, appellants are liable for punishment under Section 325 IPC. Occurrence is dated 5.6.1997. At the time of conviction, Minesh and Ravinder were 23/24 years’ old, Madan Lal and Mahipal were 28/29 years’ old, Begh Raj was 38 years’ old, whereas Sharda Ram was 70 years’ old. Injury on the head of Bir Singh was attributed to Mahipal with a lathi. Appellants are the first offenders. Appellants and the complainant party are from the same village. Earlier to the present occurrence, there was no serious enmity amongst the parties. According to custody certificates, Crl.Appeal No. 1316-SB of 2002 14 Minesh @ Tiger and Ravinder @ Binder have already undergone 2 months 2 days, Sharda Ram, Begh Raj and Madan Lal have undergone 28 days, whereas Mahipal has undergone 3 months. In 1996(1) RCR (Crl.) 273, State of Punjab vs. Anil Kumar, accused was 27 years’ old and directed to undergo imprisonment 8-1/2 years back- Injury was with a knife- Under Section 326 IPC, accused was directed to undergo 10 months- Sentence enhanced to pay a fine of Rs.5,000/- to be paid to the injured. In the present case also, appellants were armed with lathis/ballams. They have faced agony of trial for the last about 13 years. Keeping in view the nature of offence and antecedents of the appellants, I am of the opinion that ends of justice would be fully met if lenient view is taken. Appellants are directed to undergo imprisonment already undergone (2 months 2 days in case of Minesh @ Tiger and Ravinder @ Binder, 28 days in case of Sharda Ram, Begh Raj and Madan Lal, and 3 months in case of Mahipal). Appellants are further directed to deposit Rs.10,000/- more each as fine within two months before the trial Court, payable to the injured as compensation. For the reasons recorded above, appeal without merit is dismissed with modification qua sentence. 4.10.2010 (JORA SINGH ) pk JUDGE