1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1. Jeet Singh S/o Inder Singh 2. Hansraj S/o Jeet Singh 3. Subash S/o Jeet Singh Vs State S.B. CRIMINAL APPEAL NO. 391/1989 Against the judgment dt. 11.10.89 passed by learned Additional Sessions Judge, Raisinghnagar in Sessions Case No. 54/86. S .B. CRIMINAL REVISION NO. 277/1989 Satnam Singh Vs 1. Jeet Singh S/o Inder Singh 2. Hansraj S/o Jeet Singh 3. Subash S/o Jeet Singh Date of Order : 23rd July, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr. Ram Rakh Vyas for the appellant. Mr. Kamlesh Rawal, Public Prosecutor. Mr. B.N. Kalla for the complainant. BY THE COURT: Appellants preferring Appeal No. 391/89 have challenged their conviction and sentence recorded in Sessions Case No. 54/86 as per judgment dated 11.10.89 as under :- 1. Jeet Singh 2 For the offence of 324 IPC six months RI with Rs. 200/- fine, in default 15 days SI For the offence of 323 IPC fine of Rs. 200/- fine, in default 15 days SI 2. Subhash For the offence of 324 IPC six months RI with Rs. 200/- fine, in default 15 days SI 3. Hansraj For the offence of 326 IPC seven years RI with Rs. 500/- fine, in default 15 days SI For the offence of 324 IPC six months RI with Rs. 200/- fine, in default 15 days SI Preferring Revision No. 277/89 for the same judgment, complainant Satnam Singh is for reversing acquittal for the offence under Section 307 and 326 IPC and urge conviction and sentence to all apellants for the offences of Section 307, 326 read with 34 IPC. Heard learned counsel for the appellants, learned Public Prosecutor and learned counsel for the complainant. Alleged incident and events leading to prosecution as per prosecution is that on 15.5.86 at 11:00 AM in morning Satnam S/o Ajmer Singh PW/2 with his father arriving at P.S. Raisinghnagar orally lodged report that at about 8:30 AM that morning he, his father Ajmer Singh PW/1 and labourer were doing agricultural related work at their field and in the very nearby field “Dhorikhala' of Hansraj he was throwing soil towards complainant's land – father Ajmer Singh PW/1 going with a taking bottle to relieve passed near from Hansraj he asked him not to pour earth in their field, Hansraj did gave a blow of Kassi on head of Ajmer Singh. As Ajmer Singh cried, he and brother in law Satnam Singh, Saudan Singh 3 reached there and hearing shouts also came Jeet Singh (father of Hansraj) with Kassi and brother (of Hansraj) with axe – as complainant tried to save his father, Hansraj inflicted injury of Kassi at his head and Hansraj again injured father by Kassi. Jeet Singh also caused injury on his right hand and Subhash of axe at base of right thumb – his maternal aunt and Sudhan Singh came and intervening save them. Injured Ajmer also accompanied son satnam and as per endorsement made by the then SHO on registered FIR No. 83 Ex.P/1, Ajmer Singh had injuries and bleeding on head, hands and Satnam also had injury on right parietal region and left side. Registering FIR for the offence of Section 307, 324, 323 IPC, in course of investigation ASI PW/6 (i) inspecting place of of occurrence seized a bottle carried by injured Ajmer Singh prepared memos Ex.P/2, 2A (ii) on May 17th, seized blood stained clothes shirt and pyjama of injured Satnam and Ajmer Singh and memos Ex.P/7 & P/8 (iii) Hansraj arrested on 17th May and as per his information of 20th May, at his instance a Kassi having blood like stains recovered from Chhapra – memos Ex.P/10, 13 and 4 (iv) appellant Jeet Singh arrested on 17th May and as per his information of 19th, at his instance recovered Kassi and sealed - memos respectively are Ex.9,10 & 6 (v) Subhash arrested and on his information recovered axe having blood like stains from Chhapra, memos are Ex.P/11, 14 & 5. Injury of Satnam and Ajmer Singh are Ex.P/16 & 17. Ex.P/11 is X-ray of injured Ajmer Singh and Ex.P/19, 20 plates. Packets of seized articles forwarded and delivered at FSL. After usual investigation, charge- sheet submitted. Appellant Hansraj charged for the offences of Section 307, 326, 324 and other two charges with these offences read with 34 IPC that on 4 15.5.86 at 8:30 AM at village 22 PTD they with intention to cause death of Ajmer Singh inflicted grievous injury to Ajmer Singh and also injuries to Satnam Singh and attempted murder of Ajmer Singh, denied and claimed trial. Among prosecution witnesses PW/2 Satnam Singh is complainant injured and Ajmer Singh PW/1 is father main injured. Sudhan Singh PW/3 is eye-witness. PW/4 an independent witness of recovery of Kassi, axe etc is declared hostile. ASI PW/5 investigated the incident. Dr. Goyal PW/6 examining injuries prepared reports Ex.P/16 & 17 proved the injuries. Dr. Markandey PW/7, radiologist depose of fracture of parietal bone of Ajmer Singh and proves reports and X-ray plates P/18, 19 and 20. Appellants explained that witnesses are telling lie. Appellant Hansraj explained that when he was clearing earth from the field, came Ajmer Singh, Satnam and Sudhan Singh and preventing him from working, Satnam gave a blow of axe at his head and his other (accused) brothers were also beaten and then scuffle followed. As per appellant Subhash, he was beaten and as per Jeet Singh, he simply intervened to disengage them support and he was also injured. Of the three witnesses examined in defence Sugan Chand DW/1 and Munshi Ram DW/3 deposed that they were there in village and in morning Satnam with axe, Ajmer Singh with Kassi and Sudhan also with Kassi did cause injury to Hansraj, Subhash and Jeet Singh, Smt. Cheeka Devi, Sauda and Ram lal were also there with lathi in their hands. Dr. Ram Mohan Singh DW/2 examining injuries on 17.5.86 of appellant prepared injury reports Ex.D/5, D/6 & D/7 and he has proved injuries as recorded. Learned Sessions Judge convicted and sentenced the appellant as above. 5 On behalf of appellants argued that in addition to injured PW/1 and PW/2 only witness is PW/3 all are near relatives and deeply interested witnesses – no independent witnesses produced though were available – appellant also sustained injuries which are not explained – incident occurred on agricultural fields and appellants injury reasonably prove that it was a free fight which occurred all of a sudden and genesis is not disclosed or known. So the appellants cannot be held guilty. Further argued that injuries cannot be deemed to be grievous one much less proved because for no reason after 20.5.86 again x-ray on 28.5.86 and then opinion regarding fracture is. Also argued that incident is of year 1986 I.e. 23 years and that time one appellant 21 years other even as per prosecution just above 18 and one appellant Subhash by now is above 80 years and none of them had any criminal background so, if held guilty, do not deserve sentence more than undergone and if necessary benefit of probation may be extended. Learned counsel for the complainant argued that all three together and with common intention caused injuries with sharp weapon, consequently, Ajmer Singh became unconscious who had to be extensively medically treated. Therefore, all are to be convicted for the offence of Section 307 IPC. Thoughtfully considered rival arguments, perused the record and judgment assailed. Medical officer Dr. Goyal PW/6 of Government hospital, Raisinghnagar states of following injuries on the person of Ajmer Singh at 11:20 AM (I) incised wound with chip and cut of bone – 8 x 1 x bone deep at right parietal region. Cut of bone was 0.25 cm 6 (II)Two incised wound 3 x 1 x 1cm – mid frontal parietal region (III)Incised wound 3 x 1 x 1 cm right arm deltoid region (IV)Incised wound 3 x .75 x 0.5 – of right hand (V)lacerated wound 2 x 0.25 x 0.25 between thumb and second finger (VI)Incised wound 2 x 1 x 0.25 cm left finger (VII)Abrasions 4 cm linear near injury no.1 2.5 x 0.25 between 2nd and 3rd fingers, 0.5 x 0.125 cm on right chest towards back, 0.25 x 0.25 left scapula, 9 cm linear right scapula and 1.5 x 1 cm right scapula. Injured Ajmer Singh was unconscious admitted in ward for treatment – BP and Pulse not recordable – first five injuries of sharp object, rest of blunt and x-ray advised for first four. All injuries caused within six hours and the report is Ex.P./17. Dr. K.N. Markandey PW/7 Radiologist, General Hospital, Sriganganagar depose that under his supervision on 20.05.86 skull of Ajmer Singh x-rayed and observing plates he advised x-ray of lateral view with lcoalisation which taken on 28.5.86 and he observing plates Ex.P/19 and 20 found fracture on right parietal bone prepared report Ex.P/18. In cross-examination is clarified that very clear were not the x-rays so repeated and cannot say duration of fracture. As reason for repeated x- ray is very clear, arguments on this point cannot stand and proved is that because of injuries, particularly grievous head injury causing fracture too, Ajmer Singh became unconscious and in serious state. As per evidence of PW/6 read with injury report Ex.P/16 stands proved that on 15.5.86 at 11:40 AM on the person of Satnam Singh were injuries (I) incised wound 4 x 1 cm x bone deep right fronto orbital region (ii) bruise with abrasion 8 x 2 cm left arm lateral (iii) abrasion 3.5 x 3.5 7 cm left arm interior (iv) bruises 2 x 2 cm above injury no.2 (v) 10 x 2 cm left forearm anti lateral (vi) 7 x 3 cm right arm. Injury on head of sharp and rest of blunt ojbect and for first two injuries though x-ray advised but nothing further so simple. DW/2 Dr. Bhati proves that on 17.586 on person of appellant Jeet Singh were injuries (i) contusion 7 x 1 cm right scapular region (ii) abrasion 1 x 1/6 on spine right scapular region (iii) sign of contusion 15 x 1 cm back of chest right to left crossing 4th and 5th thorasic vertebra. All simple caused by blunt object within 48 to 72 hours. Injury report is Ex.D/5. On the person of appellant Hansraj were injuries (i) swelling 5 x 2.5 cm right index finger (ii) swelling 4 x 3 x 0.5 cm on vertex midline occipito parietal region caused by blunt object within 48-72 hours. On the person of Subhash were injuries (i) subjutum haemotoma on nail of left thumb with wound 1 x 0. 6 cm below nail (ii) swelling 3 x 2 cm posterior right upper arm – of blunt object within 48-72 hours Injuries speak for itself. On the strength of injuries, argument that open scuffle or sudden mutual fight occurred can hardly stand. The statement purported to be of Ajmer Singh Ex.D/2 and taken by Judicial Magistrate mentioned as dying declaration which is recorded on 16.5.86 at 6:05 PM at hospital and about it no mention is in evidence except that Ajmer Singh PW/1 in cross-examination state ignorance regarding statement by Magistrate in hospital and also stated ignorance as to why in this statement, fact of throwing of soil by Hansraj in something like field. Similarly, it also not mentioned in statements under Section 161 Cr.P C Ex.D/1 but the same is of no significance as throwing away of soil from his land towards complainant is mentioned in FIR Ex.P/1. 8 Ajmer Singh PW/1 depose that in morning he Satnam, Sudhan and Bariam Singh were working in his field and he who going to relieve himself and found Hansraj throwing earth asked him not to do so and Hansraj inflicted blow of Kassi on his head - on his crying and shouting, Satnam and Sudhan coming and to save him and intervened and meanwhile from village came Jeet Singh with Kassi in his hand and also came Subhash. PW/1 further deposes that Jeet Singh gave a blow of reverse side of Kassi on right arm of Satnam and on hand a blow of Kassi by Jeet Singh – Subhash gave a blow of axe at thumb of his right finger while Jeet Singh and right hand by Kassi. Then he was taken to hospital. From what PW/1 says in cross-examination transpires that land of all these are very nearby and village also at a distance of 5-6 bigha from there. PW/1 accepts that Karnail Singh is his father in law father in law and Sudhan brother inlaw. PW/1 says that he became unconscious on 3rd day in hospital whereas per medical evidence was unconscious on the same day at about 11 PM. Since the Medical Officer PW/6 also describe that BP and pulse was not recordable, as such his evidence based on technical parameters is more acceptable. Inference remains that PW/1 did became unconscious. Satnam Singh PW/2 corroborating testimony of PW/1 state that on hearing cries of father, he and Sudhan Singh ran towards him and soon from village came Jeet Singh with Kassia and Subhash with axe - as he placed before father to protect father Hansraj gave a blow of Kassi at his head and jeet Singh of reverse Kassi to him and father – Subhash by axe. PW/2 says that in addition to mother, grand father “Nana” Karnail Singh, sister of his mother came and they taken to hospital and P.S. Nothing significant appears in cross-examination of PW/2 except that FIR Ex.P/1 9 and statement in course of investigation Ex.D/3 do not find mention of throwing soil and bringing of Kassi by appellant from their home etc. But these are not such material aspects as to find mention. Sudhan Singh PW/3 also depose of incident like above. His evidence cannot be discarded because of relationship of this witness – at most to be analysed more carefully and minutely and doing in that manner no reason appears to doubt what PW/3 says. It appears that agricultural fields of complainant and as of appellants are near to each other and only at a distance of 5-6 bigha from their village. It also appears that incident occurred when Ajmer Singh was going towards forest with bottle in his hand and because he had objected for throwing soil by Hansraj. Also follows that incident not planned or thought one - more so, because of appellants only Hansraj was present who could not have foreseen passing of Ajmer Singh through there at that time. Other two appellants came soon but only after cries and shouts. Kassi and also axe are the articles normally found with agriculturists and as is established, appellant agriculturists were working in fields. From the evidence it is proved that Hansraj inflicted blow of Kassi to Ajmer Singh. After some time other appellants also inflicted some injuries to him though simple one. It is also proved that these persons together inflicted injuries to Satnam Singh. Though grievous at head is caused to Ajmer Singh but same while working in the field and for reason which arise spontaneously then and there and by a article normally possessed by agriculturists. So, for the reasons and in the totality of circumstances, no intention or knowledge to cause any such injury as likely to cause death can be attributed. On the other hand, knowledge of 10 causing only grievous injury clearly surfaces and which knowledge can be attributed only for appellant Hansraj for the reason that after causing of injury by Hansraj other two appellants came soon after hearing shouts and cries i.e. perhaps without even any thought of causing any grievous injury and they did not cause any grievous injury. Grievous injury is one to Ajmer Singh. For the reasons above, proved is that appellant Hansraj voluntarily caused grievous injuries by sharp object to Ajmer Singh and other appellants voluntarily caused injuries simple to Ajmer Singh and Satnam. Accordingly, appellant Hansraj is to be convicted for the offence under Section 326 IPC and other two appellants for offence under Section 324 & 323 IPC. Incident is of May, 1986 and conviction recorded in the year 1989. thus, about 23 years have elapsed to occurrence and 20 years since suspension of sentence. Appellants and injured have nearby agricultural fields and are residents of some small village. Now putting any appellant in prison will not only finish any goodwill created in these years but also tend to perpetuate deep bitter feelings. From the record of trial court, it appears that in June, 89, appellant Subhash was 22 years, Hansraj 25 and appellant Jeet Singh 55 years who by this time may be nearing as above 75 years. Hansraj remained in custody for few days during investigation and about a month after conviction. Other two also remained in custody for some days. In the totality of the circumstances, now in the opinion of the Court, sentence of the period already undergone but with good quantum of fine shall be appropriate. The quantum of fine considering injuries and relative factors is determined at Rs. 30,000/- on appellant Hansraj and for other two appellants Rs.5000/- each. 11 Accordingly, appeal deserves to be partly allowed. Allowing the appeal partly, the conviction recorded and sentence awarded to appellants vide judgment dated 11.10.89 in Sessions Case No. 54/86 is set aside and appellants appellants are convicted as under :- (I) Appellant Hansraj for the offence of Section 326 IPC is sentenced to the period already undergone with fine of Rs.25000/- in default of fine, one month rigorous imprisonment. For the offence of Section 324 IPC IPC is sentence to period already undergone with fine of Rs. 5000/- in default of ten days imprisonment. For the offence of Section 323 IPC, is sentenced to the period already undergone. (II)Appellants Jeet Singh and Subhash for the offence of Section 324 IPC sentenced to the period of already undergone with fine of Rs. 5000/-, in default of payment of fine, ten days rigorous imprisonment. For the offence of Section 323 IPC, they are sentenced to the period already undergone. Appellants Jeeta Singh & Subhash are father and sons. They shall deposit the fine imposed on them or or before 31.08.2009 and appellant Hansraj out of fine imposed shall deposit Rs. 15000/- by 31.08.09 in the trial court and remaining Rs. 15000/- by 30.09.2009 failing which they shall appear before the trial court and the trial court shall also secure so by issuing warrant of arrest. Out of fine, Rs. 20,000/- shall be paid to complainant to Ajmer Singh. (C.M. TOTLA), J.