IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRIMINAL APPEAL NO. 589-SB OF 1996 DECIDED ON : 28-11-2007 Beni ....Petitioner Versus State of Haryana ....Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present: Mr.Bipan Ghai, Advocate, for the petitioner Ms.Shalini Atri,AAG, Haryana MAHESH GROVER, J (ORAL) On 13-06-1993, an incident took place in which Kishan Pal lost his life. Initially, he was admitted to B.K.Hospital in Fardiabad, and thereafter moved to Safderjang Hospital in Delhi. The police who had got information while on the way to the hospital at Delhi met Raj Pal- complainant who made a statement that they were 8 brothers and his brother Kishan Pal and Brahm Chand had been residing in House No.1 B WH/29 NIT Faridabad and they were engaged in the business of dairy farming. His another brother Rajbir who was residing at Sanjay Colony in Sector 23,Faridabad had come to meet his brother Kishan Pal. On a date prior to the occurrence i.e. on 12-06-1993 at about 7-30 pm. Jagat Singh who is also engaged in the same business came to the dairy of Kishan Pal and Crl Appeal 589-SB of 1996 --2-- asked him as to why he was attracting his customers and affecting his business adversely. On the day of the occurrence, the complainant and his brother Kishan Pal milked the buffaloes and thereafter Kishan Pal went from the dairly to supply the milk at about 7AM while the complainant went for a walk. When he reached the park ,there he saw Kishan Pal who was about to take a turn in the street and then Jagat Singh, Satish, Lal Chand and Beni accused intercepted him. All the four persons were armed with lathis in their hands. Jagat Singh asked the other accused to kill Kishan Pal. Beni, the present appellant is said to have given a lathi blow on the head of Kishan Pal from behind, as a result of which, he fell down. The complainant reached his brother and raised a noise whereupon Satish- accused gave lathi blow on his person. Thereafter, the complainant snatched the lathi of Lal Chand accused and he caused injuries to the aggressors. On hearing the noise, Jai Pal and Rajbir also came to the spot and thereupon the accused are said to have run away. Kishan Pal was taken to B.K.Hospital by Rajbir in an unconcious state. He was referred to Safderjang Hospital in Delhi but instead he was taken to Jeewan Hospital, Delhi where he died due to the injury suffered by him. The post mortem was conducted in B.K.Hospital in Faridabad where the body was brought back. The FIR was registered and the police completed its investigative process and submitted a challan against all the four persons prima facie finding their complexity in the said offence. The trial Court before whom the matter was committed after the submission of challan, charged all of them under the provisions of Sections 302/323/34 IPC. Crl Appeal 589-SB of 1996 --3-- All the accused persons pleaded not guilty and claimed trial. The prosecution examined 10 witnesses to bring home the guilt of the appellant. All the accused persons denied the allegations while recording their statements under Section 313 Cr.P.C. Jagat Singh, Satish and Lal Chand took up common defence that it was a false case and Lal Chand was not present at the spot while Beni pleaded that a false case was registered and further stated that in fact, buffaloes were purchased by Jagat Singh and Rajbir from Bhulli of Kaithal and Bhulli and Sultan had come to recover the price of buffaloes on 12-06-1993 in the evening. On 12-06-1993 Rajbir came to the dairy of Jagat Singh and Jagat Singh requested him to make payment of Bhulli upon which Rajbir abused Jagat Singh and then Satish gave a slap to Rajbir who went away after hurling abuses. Sat Pal was a constable in PS Sarai Khwaja and Raj Pal etc. were waiting for Satish near the ice-cream factory which was in the way which Satish used to follow. Rajbir, Kishan Pal and Sat Pal attacked Satish with lathis when he came from the side of part of 'C' Block. He came running from the dairy and injuries were caused to him also. Jagat Singh had reached the dairy. Two injures were caused to him by the complainant party. He yielded lathi in self defence and one injury each was caused to Kishan Pal and Rajpal. With the help of Sat Pal, a false case was registered against them. It was stated that he had suffered a fracture. Satish and Jagat also suffered multiple injuries at the hands of the complainant party but no action was taken agaisnt the complainant party. This plea of the defence was supported only the appellant Crl Appeal 589-SB of 1996 --4-- while all the three accused replied in the negative. In support of his plea, DW1-Bhulli, DW2-Dr.V.K.Aggarwal were examined and thereafter the evidence was closed. The trial Court came to the conclusion that the appellant was guilty of having committed an offence under section 304-II IPC and sentenced him to undergo RI for 7 years vide orders dated 19-08-1996 which the subject matter of the present appeal. Learned counsel for the appellant contended that the undisputed facts on record are that there was a quarrel between the complainant and the appellant and that only one lathi blow was given on the head of the deceased which proved to be fatal. He further contended with elaborate reference to the findings recorded by the trial Court that the appellant was not the aggressor and , in fact, the incident had taken place near the dairy of the appellant and a clear finding was returned by the trial Court that the complainant party was the aggressor. The only reason for awarding conviction to the appellant was that he exceeded his right of private defence. It was further pleaded by him that the trial Court had completely overlooked the fact that the appellant had suffered 5 injuries out of which one was a fracture of leg which turned out to be grievous. He had also suffered one head injury and Satish who also belonged to his faction and is related to him, suffered 5 injuries. Jagat Singh has suffered one injury. The deceased suffered only one injury on the head which turned out to be fatal and the complainant suffered only one injury on the head. In this view of the matter, learned counsel for the appellant contended that it cannot be said that the appellant had exceeded his right of self-defence . He was faced with an aggressive group of people. It was but natural for him to Crl Appeal 589-SB of 1996 --5-- react. On the strength of this, it was pleaded that the appellant was entitled to acquittal. On the other hand, learned counsel for the State contended that the conviction and sentence is perfectly in order as the deceased had suffered a fatal blow on the head which according to him was largely unprovoked. I have heard the learned counsel for the parties and have perused the record. The trial Court while examining the evidence had clearly returned a finding that the place of occurrence is in close proximity to the dairy which is run by the appellant and further went on to hold that it was complainant and his brother-Kishan Pal who were the aggressors. It was also a conceded case that the appellant had suffered injuries at the hands of the complainant party which included a fracture. The testimony of PW9- Dr.A.K.Gupta reveals the following injuries on the person of the appellant, Satish and Jagat respectively :- “1. Lacerated wound 2.5x0.5 cm muscle deep on right parietal region. Bleeding was present. 2. Reddish contusion 20 cm x 4.0 (20.00 cm x 4.0 cm) on left scapular region of back. 3. Reddish contusion 20.0x4.0cm on right scapular region of back. 4. Diffused swelling on lateral aspect of left ankel joint, accompanied by a reddish contusion 5.0x2.0 cm on it. 5. Reddish contusion 1.0x2.0 cm on posterior aspect of left shoulder joint. Crl Appeal 589-SB of 1996 --6-- x-ray examination was advised in respect of injuries Nos. 2, 3 and 4. Said injuries were kept under observation. All the injuries were said to be caused with a blunt weapon and wtihin proper duration of 24 hours.” Injuries on the person of Satish Kumar 1- Reddish contusion 15.0 cm x 2.0 cm on posterior aspect of left fore-arm in its upper third part. Movements were restricted and painful. X-ray examination was advised. 2- Diffused swelling on the left fore-arm in its lower third part accompanied by reddish contuison 2.5x2.5 cm. X-ray examination was advised. 3- Reddish contusion 8.0x2.0 cm on medial aspect of right knee. 4- Reddish contusion 8.0x5.0 cm on lateral aspect of left knee. 5- Reddish abrasion 3.0 x 2.5 cm on front of right fore-arm. Injuries on the person of Jagat Singh 1- A reddish contusion 10.0 x 5.0 cm on palmer aspect of left hand. X-ray examination was advised. It was stated to be caused by blunt weapon within duration of 24 hours. Having regard to the aforesaid, the learned trial Court was required to test the plea of self -defence in the backdrop of the injuries which largely reflected the intent and threat of the aggressors. A person who is faced with a threat perception is entitled to react in order to save Crl Appeal 589-SB of 1996 --7-- himself. Whether the reaction and the consequent action taken by such a person is in excess of his right of self defence would be a matter of fact to be established and inferred from the evidence on record. Concededly the appellant had suffered numerous injuries at the hands of his aggressors and had also suffered fracture. One lathi blow was attributed to him which proved to be fatal. In the melee which follows in a group violence where a person is subjected to extreme aggression, the reaction which follows from the victim is spontaneous and is never measured. The intent at that time is to ward off the aggressor and to preserve oneself which is a natural instinct inherent in every living being. The intention is never to cause violence but violence to offer defence by which is more of a defensive mechanism unleached as a reflex measure to preserve one's own existence. The consequent death of deceased Kishan Pal was more as a will of the Providence rather than willing and intending injury of the appellant. In this view of the matter, it cannot be said conclusively that the appellant had exceeded his right of self-defence. Rather it has been held to the contrary to say that he was very much within his right of defence and was not liable. This appeal is accordingly accepted and the appellant is acquitted of the charge against him. 28-11-2007 [Mahesh Grover] *MandeepKaur* Judge CIVIL WRIT PETITION 17531 OF 2007 DECIDED ON : 02-04-2008 K.S.Gill & another ....Petitioner Versus State of Punjab & others ....Respondents CORAM : HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr.J.V.Yadav, Advocate, for the petitioners Mr.Yatinder Sharma, DAG, Punjab ASHUTOSH MOHUNTA, J (ORAL) The petitioners joined the services of respondent No.3- College on 07-07-1969 and 09-08-1971 respectively and retired on 28-02- 2003 and 31-08-2004 as Lecturers. They have prayed that directions be issued to the respondents to release their retiral dues which also inlcude leave encashment, payment of arrears on acount of revision of pay-scales with effect from 01-01-1996, payment of dues of allowances such as DA, HRA,Medical Allowance at par with the employees of the Punjab Government and other retiral dues. Learned counsel for the petitioners submits that this case is squarely covered by the decision rendered in CWP 3583 of 2007 in K.C.Sharma versus State of Punjab & others on 17-12- 2007 wherein the same issues were involved and which relates to the same college. CWP 17531 of 2007 --2-- We have perused the impugned judgement and are of the considered opinion that this case is squarely covered by the aforementioned judgement. In view of the above, we allow this writ petition in the same terms as that of K.C.Sharma's case (supra) In case the payments are not made to the petitioners in terms of the directions issued in K.C.Sharma's case, then the respondents shall be liable to pay interest @ 6% per annum to the petitioner. [Ashutosh Mohunta] Judge [Kanwaljit Singh Ahluwalia] Judge 02-04-2008 *Mandeepkaur* CWP 16955 of 2007 Present: Mr.M.S.Sidhu, Advocate, for the petitioner Mr.Jatyender Sharma, DAG, Punjab Mr.P.K.Khurana, Advocate, for the respondent- University Reply on behalf of respondent has been filed in Court today. The same is taken on record. A perusal of the reply shows that the petitioner has the alternative remedy of challenging the decision of the committee by filing an appeal under Rule 20 of Part II Chapter 10 of Volume III, Calender of Guru Nanak Dev University, Amritsar before the Vice Chancellor. As the aforementioned remedy is available to the petitioner, therefore, he may challenge in the order impugned in this case before the Vice Chancellor. The delay in filing the appeal shall be condoned in case the appeal is filed within one month from today. Disposed of. [Ashutosh Mohunta] Judge [Kanwaljit Singh Ahluwalia] Judge 02-04-2008 *Mandeepkaur* IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CIVIL WRIT PETITION 16491 OF 2007 DATE OF DECISION : 02-04-2008 Sikander Singh ....Petitioner Versus State of Punjab & others ....Respondents CORAM : HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr.B.S.Mittal, Advocate, for the petitioner Mr.Yatinder Sharma, DAG, Punjab Mr.R.S.Rai, Senior Advocate, with Ms.Meenakshi Dogra, Advocate, for respondent No.5 ASHUTOSH MOHUNTA, J (ORAL) The petitioner has prayed that directions be issued to the respondents to release the pension, gratuity, leave encashment and other remaining retiral benefits. The petitioner retired from service of Municipal Council, Maur, Tehsil Talwandi Sabo, district Bathinda on 30-06-2007. As he has not been paid his retiral dues, hence he has filed this writ petition. Learned counsel for respondent No.5 submits that the petitioner has been paid a sum of Rs.2,50,000 and the remaining amount would be paid to him in due course of time as the Municipal Council is going through financial crunch. CWP 16491 of 2007 --2-- After hearing the learned counsel for the parties, we dispose of this writ petition with a direction to respondent No.5 to pay the entire retiral dues of the petitioner to him within a period of 4 months from today. In the meantime, we direct the State of Punjab to release grants to Municipal Council, Maur, expeditiously so that Municipal Council could discharge its liability towards its retired employees. [Ashutosh Mohunta] Judge [Kanwaljit Singh Ahluwalia] Judge 02-04-2008 *Mandeepkaur* IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CIVIL WRIT PETITION 16887 OF 2007 DATE OF DECISION : 02-04-2008 Dr.Gurmohan Singh Ahluwalia ....Petitioner Versus State of Punjab & others ....Respondents CORAM : HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr.G.P.Singh, Advocate, for the petitioner Mr.Jatyender Sharma, DAG, Punjab Mr.Sandeep Arora, Advocate, for respondents 3 and 4 ASHUTOSH MOHUNTA, J (ORAL) Reply has been filed on behalf of respondents 3 and 4 today in Court which is taken on record. The petitioner has prayed that directions be issued to the respondents to pay him the gratuity, leave encashment and remaining part of provident fund ,arrears of salary of revised pay scales and corresponding increase of GPF, DA, HRA,Medical Allowance and other dues in accordance with law. The petitioner after serving in Gujrawala Guru Nanak Khalsa College, Ludhiana,for about 37 years retired on 31-05-2007. However, he has not been granted the full retiral dues as mentioned above . Reply on behalf of respondents 3 and 4 has been filed and it has been averred that the petitioner has been paid the entire gratuity. It is further CWP 16887 of 2007 --2-- averred that as far as payment of other retiral dues is concerned as the College is a privately aided college to the extent of 95% , hence as long as the State of Punjab does not release grants to them, they are unable to pay to the petitioner. After hearing the learned counsel for the parties, we are of the considered view that as far as an employee is concerned, he is to be paid his retiral dues of the College who may claim the amount paid to the employee from the State Government. Reliance in this regard is placed upon K.C.Sharma versus State of Punjab & others decided on 17-12- 2007 in CWP 3583 of 2007 which squarely covers the controversy involved in the present case. In view of the above, we allow this petition in the same terms as in K.C.Sharma's case (supra). [Ashutosh Mohunta] Judge [Kanwaljit Singh Ahluwalia] Judge 02-04-2008 *Mandeepkaur* IN THE PUNJAB & HARYANA HIGH COURT CHANDIGARH CRIMINAL MISC NO. 9672-M OF 2008 DECIDED ON : 15-04-2008 Sanjay Kumar ....Petitioner Versus State of Haryana ....Respondent CORAM: HON'BLE MR.JUSTICE RAJESH BINDAL Present: Mr.Sanjiv Gupta, Advocate, for the petitioner RAJESH BINDAL, J (ORAL) The allegation against the petitioner is that he used unfair means in the examination of secondary education conducted by the National Institute of Open Schooling. He permitted someone else to appear on his behalf to take the examination. Learned counsel for the petitioner submits that Surinder Kumar who had appeared in place of the petitioner in the examination has already been granted regular bail. Considering the allegations against the petitioner that he had engaged someone else to appear in the examination on his behalf, I do not consider it to be a fit case for the grant of pre-arrest bail. This petition is dismissed. 15-04-2008 [Rajesh Bindal] *MandeepKaur* Judge Crl Misc 48537-M of 2007 Mr.Navneet Chhokar, Advocate, for the petitioners Mr.Vikas Chaudhary, AAG, Haryana Heard learned counsel for the parties. On the last date of hearing, it was not disputed that offence under Section 452 IPC only was non-bailable. Accordingly, the petitioners were directed to appear before the Investigating Officer and if they did so, the arrest was ordered to be stayed. Learned counsel for the State has referred to the order dated 03-10-2007 passed by the learned Additional Sessions Judge and submitted that it has been held therein that the accused-applicants in furtherance of their common intention caused grievous injuries which attracted the provisions of Section 326 IPC. The injury was caused after committing house trespassing. Learned counsel for the petitioner has submitted that section 326 IPC is not made out and it is a bonafide mistake which has been recorded in the order of the learned Additional Sessions Judge. Learned counsel for the State has referred to the medical opinion in respect of the injured Hakam who has received injury on his ear with a farsa. The same is attributed to Rehman-petitioner No.5. It is submitted that it has been opined that the injury is grievous to life rather than dangerous to life. A reference has also been made to zimni No.7 dated 30-08-2007 wherein the offence under Section 326 IPC has been added. Learned counsel for the petitioner, however, is resolute that in the police papers, the, offence under Section 326 IPC has not been Crl Misc 48537-M of 2007 --2-- mentioned. He has referred to the head note of the order dated 01-08-2007 (Annexure P-2) to contend that section 326 IPC is not mentioned in the head note. Besides, he has referred to the report submitted on 19-09-2007 and has submitted that section 326 IPC is not mentioned in the head note. A perusal of the said report, however, shows that it has been filed along with the remand papers and it is mentioned therein that farsa with which injury on the ear of Hakam Singh was caused, is to be recovered. Besides it is mentioned that Nisar and Hakam produced x-ray reports which were obtained from Delhi. After obtaining information of doctor, Section 326 IPC has also been made out. Therefore, it is evident that the role attributed to the petitioners is not only under Section 452 IPC but is also that under Section 326 IPC. It is on account of the injury caused by Rehman-petitioner No.5 on the person of Hakam on his ear that the offence under Section 326 IPC has been added. Learned counsel for the petitioner at this stage has referred to another report wherein some information was sought on 10-09- 2007. It is submitted that in the head note of the said application, offence under Section 326 IPC has not been mentioned. It may be noticed that in the order dated 03-10-2007 passed by the learned Sessions Judge, it is clearly mentioned that the accused- applicants in furtherance of their common intention caused grievous injury which attracted the provisions of section 326 IPC. The zimni dated 30-08- 2007 shows the addition of the offence under section 326 IPC. Learned counsel then submits that at the most, Rehman- petitioner No.5 may not be entitled to the grant of anticipatory bail. After going through the record , it may be noticed that all the Crl Misc 48537-M of 2007 --3-- accused are alleged to have entered the house of the complainant and caused injuries. Ismail-petitioner No.1,Ibrahim-petitioner No.2,Tofiq-petitioner No.3,Abdul-petitioner No.4 were all carrying lathis in their hands and came to the house of Hakam and Nasir. Rehman-petitioner No.5 who was holding a farsa, gave the blow on the ear of Hakam which started bleeding. Thereafter, Ismail-petitioner No.1 holding a lathi, hit on the left land of Farukh, Ibrahim-petitioner No.2 gave slaps and fist blows. Abdul-petitioner No.4 caught Nisar and threw him down. All this happened in the house of the complainant. In the circumstances, no ground for anticipatory bail is made out. Criminal Miscellaneous Petition is accordingly dismissed. 26-11-2007 [S.S.Saron] *MandeepKaur* Judge CWP 7008 of 2008 Present: Mr.A.P.Bhandari, Advocate, for the petitioner Mr.Anil Malhotra, Advocate, for respondent No.1 Ms.Alka Chatrath, Advocate, for respondent No.2 The petitioner has prayed that directions be issued to the respondents to add internal assessment numbers of the petitioner for B.Sc. Course for the session April, 2007 as the same have not been included in the result card of the petitioner. Internal assessment of the petitioner for B.Sc.II was submitted by respondent No.2-College wherein he was given zero marks in all the papers. The University obviously was of the opinion that there has been some mistake on the part of respondent No.2 in giving zero marks to the petitioner in the internal assessment. Even respondent No.2 realised that some mistake has been committed. Hence, the College wrote to the University that as per the internal assessment of the petitioner, the petitioner has got the following marks :- Chemistry 12 Maths 12 Physics 7 English 8 Necessary corrections were made while computing the internal assessment of the petitioner. Thereafter, after a lot of deliberations between the University and the College, the University has agreed that the petitioner has secured the aforementioned marks. However, the learned counsel for the University submits that rules do not provide for change of the internal assessment of the petitioner at such a belated stage. In this regard, reference --2-- has been made to para 27 (ii)(iii) of the Senate proceedings decision dated 04-09-2005. After hearing the learned counsel for the parties, it is clear that the mistake was on the part of respondent No.2 in conveying wrong marks of the petitioner with regard to his internal assessment. The petitioner has secured 39 marks in the subjects of chemistry, maths, physics and english whereas the College informed the University that he had secured zero marks. In view of the fact that mistake was on the part of the College and not on the part of the petitioner, therefore, we direct respondent No.1- University to give the benefit of the internal assessment to the petitioner and give him the corrected mark sheet. Copy of the order be given dasti. In view of