CRA No.143-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.143-SB of 2000 Date of Decision : 14.09.2010 Sukhdev Singh and another .......Appellants Versus State of Punjab .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. M S Bedi, Advocate, for the appellants. Mr. Mehardeep Singh, DAG, Punjab. **** JITENDRA CHAUHAN, J. 1. The present appeal is directed by the accused-appellants, namely, Sukhdev Singh and Kulwant Singh, against the judgment and order dated 28.1.2000 passed by the learned Additional Sessions Judge, Gurdaspur (hereinafter as 'trial Court'), convicting them for the offences punishable under Sections 307/324/34 IPC and sentencing them as under:- Sukhdev Singh to undergo rigorous imprisonment for four years and to pay a fine of Rs.2000/- and in default of payment of fine to further undergo rigorous imprisonment for six months under Section 307 IPC Sukhdev Singh to undergo rigorous imprisonment for six months under Sections 324/34 IPC being vicariously liable for the injuries caused by Kulwant Singh under Section 324 IPC. CRA No.143-SB of 2000 -2- Kulwant Singh to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for three months under Sections 307/34 IPC being vicariously liable for the injuries caused by Sukhdev Singh under Section 307 IPC All the sentences were ordered to run concurrently. Accused- Bawa Singh was acquitted by the trial Court. 2. The facts of the case, as set up by the prosecution are narrated in para 1 of the judgment of the learned trial Court which reads as under:- “Complainant, Kewal Singh is resident of Village Peero Pindi. On 24.11.1997, complainant along with his son Satwinder Singh were present in front of the house of Nirmal Singh and was sprinkling water in order to make the dust settled down. On that day marriage of the daughter of Nirmal Singh was to take place. Time was 11.00 AM. At that juncture, accused, Sukhdev Singh alias Manga Singh happened to pass in front of the house of Nirmal Sigh, and he sarcastically commented that they would settle the dust of complainant and his son. After about 2/3 minutes thereafter, accused Sukhdev Singh, Kulwant Singh and Bawa Singh, armed with barchhas come there. Bawa Singh declered his intention of avenging the insult inflicted upon them by Kewal Singh, when said Kewal Singh, on one occasion, scolded Kulwant Singh accused on account of the reason that Kulwant Singh had given beating to Palwinder Singh, son of Kewal Singh. Bawa Singh delivered CRA No.143-SB of 2000 -3- barchha blow in the direction of the complainant, but missed the target. Sukhdev Singh gave barchhi blow on Satwinder Singh, on the left side of his abdomen. Then Kulwant Singh gave a barchhi blow to Satwinder Singh underneath the left armpit. On alarm being raised, Mohinder Singh came forward and rescued Satwinder Singh from the clutches of the accused. Thereafter, all the accused took to their heels along with their respective weapons. Satwinder Singh was taken to Civil Hospital, Kalanaur and from there he was shifted to Civil Hospital, Gurdaspur. On 24.11.1997, itself ASI, Kamal Kishore, received wireless message from Police Station, City Gurdaspur, about the admission of Satwinder Singh in Civil Hospital, Gurdaspur. On receipt of this message, ASI, Kamal Kishore, went to Civil Hospital, Gurdaspur and laid an application, Ex.PF, seeking opinion of the doctor regarding the fitness of the injured to make statement and the doctor, vide his endorsement Ex.PF/1 declared the injured as unfit to make the statement. Again on the next day i.e. 25.11.1997, another application Ex.PG was moved seeking opinion of the doctor about the fitness of the injured to make the statement and again the injured was declared unfit to make a statement. However, in the hospital, ASI Kamal Kishore, met Kewal Singh and recorded his statement Ex.PA. The same was forwarded to the police-station by ASI Kamal Kishore after making his endorsement thereover Ex.PA/1 on the basis of which formal FIR Ex.PA/2 was recorded. On the same day, Investigation CRA No.143-SB of 2000 -4- Officer made for the place of occurrence and prepared rough site plan Ex.PH thereof with correct marginal notes and also recorded the statement of Mohinder Singh. On the same day, the shirt of the injured was produced by Kewal Singh, which was taken into possession vide recovery memo Ex.PJ after sealing the same into a parcel with the seal bearing impression 'KK'. On 28.11.1997, another application Ex.DK was moved with the doctor seeking his opinion about the fitness of the injured to make his statement and the doctor vide his endorsement Ex.PK/1 declared the injured as fit to make statement, consequent whereupon the statement of the injured was recorded. On 4.12.1998 as wireless message was received from Police-Station, City, Gurdaspur about the receipt of some chit from the doctor whereupon ASI Kamal Kishore went to the Police-Station, City Gurdaspur and the MHC Ravinder Kumar produced the chit of the doctor which he received form the Hospital and vide which the injury on the person of Satwinder Singh were opined to be dangerous to life. All the accused were arrested on 19.12.1997 and on the completion of the investigation, the accused were challaned to face judicial trial.” 3. Challan was presented before the trial Court whereupon the accused were charged under Sections 307, 324, 34 IPC. The accused pleaded not guilty and claimed trial. 4. In order to substantiate the charge against the accused, the prosecution examined as many as 10 witnesses, namely, Kewal Singh, CRA No.143-SB of 2000 -5- complainant as PW1, Dr. H S Bhatia as PW2, Satwinder Singh, injured as PW3; Harbans Singh, Canal Patwari, who prepared and scaled site plan Ex.PE as PW4; Constable Karnail Singh, who carried the special report to the Illaqa Magistrate as PW5; Kamal Kishore, Investigating Officer as PW6; Dr. Swinder Kumar as PW7; ASI Arvinder Singh, who simply recorded the FIR as PW8; Dr. Raj Kumar, who declared the injured as fit to make the statement as PW9; H.C. Dalwinder Kumar, who received the chit Ex.PD from Civil Hospital, Gurdaspur vide which the injuries on the person of the injured were declared as dangerous to life as PW10. 5. After the prosecution concluded its evidence, statements of the accused under Section 313 Cr.P.C. were recorded while putting them all the incriminating circumstances coming in against them to which they denied and pleaded false implication. In defence, they examined Dr. Jagjivan Lal as DW1, who deposed that on 26.11.1997, he conducted the medico-legal X-ray examination of Bawa Singh, accused, as was advised by Dr. Sat Pal and from the X-ray report, fracture of lower end of left humerous was detected; Dr. Sat Pal, Medical Officer, DW2 deposed that on 25.11.1996, he medico-legally examined Bawa Singh and a lacerated wound measuring 1 cm X 0.5 cm on the left elbow joint was found and the said injury was kept under X-ray observation. The injury was caused by blunt weapon and probable duration of this injury was within 24 hours; Kamaljit Suri, a practising Lawyer as DW3, who simply referred to the suit filed by Bawa Singh, accused for grant of equity of injunction; Satnam Singh, as DW4, deposed that about 1 ¾ years ago, he was present near his house, which is at a short distance from the house of accused-Kulwant Singh, and Satwinder Singh along with his brother came in front of house of Kulwant Singh and CRA No.143-SB of 2000 -6- started hurling abuses. When accused-Bawa Singh came there and inquired about the matter, he was given a dang blow on the left arm by Satwinder Singh. He further deposed that neither Kulwant Singh nor Sukhdev Singh was present there; Surjit Singh, DW5, brought the summoned record regarding the suit titled as Bawa Singh Vs. Dilbagh Singh; Dr. Swinder Kumar, DW6, admitted accused Bawa Singh in the Hospital on 26.11.1996. 6. After hearing both the sides and analyzing the record and evidence minutely, the learned trial Court convicted the accused-appellants under Sections 307, 324 IPC read with Section 34 of IPC and sentenced them for the term indicated in outset in para 1 of this judgment. Aggrieved from the judgment of conviction and order of sentence, the present appeal has been preferred before this Court challenging the same. 7. Learned counsel has submitted that Satwinder Singh, injured, was referred for X-ray examination by Dr. Swinder Kumar, PW7, to find out the extent of injury No.1, however, no X-ray report has been brought on record and in the absence of the same, the offence, at the most, would fall under the purview of Section 324 IPC and not under Section 307 IPC. 8. Learned counsel has further argued that the ocular version is discrepant and not in consonance with the medical evidence on record. Kewal Singh, PW1, has stated that injury was given to him with Barchi thrust-wise. Similarly, blows were given to his son, Satwinder Singh, by the appellant. Referring to the aforementioned factual assertion, learned counsel has argued that the nature of injuries should have been penetrating whereas, as per the medico-legal report, both the injuries on the person of Satwinder Singh were shown to be incised wounds. According to PW7, Dr. Swinder Kumar, weapons of offence were not shown to him. CRA No.143-SB of 2000 -7- 9. Learned counsel has further argued that there is a delay of 25 hours in lodging the FIR. He has submitted that the occurrence is stated to have taken place on 24.11.1997 at 11.00 AM whereas the FIR was lodged on 25.11.1997 at 12.00 noon. He has further referred to the statement of the Investigating Officer, PW6, who has stated that he visited the hospital on 24.11.1997 but did not record the statements of witnesses present there. He recorded the statement of Kewal Singh, PW1, on 25.11.1997, though it is clearly made out from the statement of this witness that he (Kewal Singh, PW1) was available in the hospital on 24.11.1997 as well. Therefore, the learned counsel has argued that the delay in lodging the FIR has not been properly explained and the FIR is fabricated one. 10. Learned counsel has further submitted that the Investigating Officer, PW6, carried out the spot inspection but neither blood-stained earth was lifted from the spot nor blood-stained clothes of Kewal Singh were taken into possession. 11. Learned counsel has further argued that no motive in respect of the alleged occurrence has been ascribed in the FIR. However, the prosecution witnesses have tried to improve by stating the motive for the said occurrence but when they were confronted with their earlier statements made to the Police, the same does not find mention there, and has argued that in the absence of any motive, the prosecution version cannot be relied upon. 12. Learned counsel has lastly argued that the occurrence pertains to the year 1997. The appellants have faced agony of trail for a period of 13 years and has prayed for a lenient view. 13. On the other hand, learned counsel for the State has argued that CRA No.143-SB of 2000 -8- the injury on the person of Satwinder Singh, injured, was found to be dangerous to life and in the face of the observation given by the doctor, the non-production of X-ray report on record is not of much relevance. The ocular version is supported by the medical evidence. The delay in the instant case is not fatal. 14. I have heard learned counsel for the parties and perused the record. 15. From the perusal of the medico-legal report prepared by Dr. H S Bhatia, PW2, with regard to the injuries on the person of Satwinder Singh, injured, it is made out that he received two injuries. Injury No.1 was declared as grievous in nature and could be dangerous to life if the timely surgical intervention would not have been made available to the injured. However, in the opinion rendered by this witness, there is no positive assertion of the fact that injury No.1 was sufficient to cause death in the ordinary course of nature. Therefore, in my considered opinion, the necessary ingredients for bringing the offence within the ambit of Section 307 IPC were lacking and, as such, the offence would fall under Section 326 IPC. Apart from this fact, the incident is stated to have sparked of from a trivial act of sprinkling water to prevent rising of dust before the arrival of Baraat party which was found to be offensive by the appellant and, therefore, the act as such was not pre-meditated and, thus, the intention of committing the offence is also missing. This Court, in Nand Singh V. State of Punjab, 2007(1) RCR (Criminal) 801, has held that:- “15. To bring an offence under Section 307 IPC, the prosecution is required to prove that the accused had an intention to commit murder of injured. This intention could be CRA No.143-SB of 2000 -9- gathered either from the act of the accused or from the impact of the injuries. Nowhere in the statement made by Manjit Singh before ASI Gurmit Singh, it was alleged that the appellant had caused injuries to Manjit Singh with an intention to kill him. Though Dr. Mon Abrahm, PW7 deposed that injuries Nos.4, 6 and 11 to 17 were dangerous to life but he did not describe any of those 9 injuries to be sufficient to cause death in the ordinary course of nature. Thus, the necessary ingredients required for bringing the offence under Section 307 IPC, were lacking in the present case. However, injuries Nos.4, 6 and 11 to 17 were such which endangered the life of the victim. All of them were caused with sharped pointed weapon i.e. daggar. This would bring the offence to one under Section 326 IPC. Accordingly, conviction of the appellant under Section 307 IPC deserves to be set aside and instead he ought to be convicted under Section 326 IPC.” 16. Admittedly, the X-ray report with regard to injury No.1 was not placed on record by the prosecution. There is no explanation as to why this X-ray report was withheld by the prosecution and was not produced. In the circumstances, there is a glaring lapse on the part of the prosecution, and thereby depriving the Court of the clear picture indicating the magnitude of the offence committed by the appellants. The benefit of such lapse has to go to the appellants only. Though the injuries were found on the person of Satwinder Singh but in the absence of any conclusive medical opinion, provisions of Section 307 are not attracted. Similar stand has been taken by this Court in Naib Singh V. State of Punjab, 2007(3) RCR (Criminal) 15, CRA No.143-SB of 2000 -10- and held that:- “There is a reference to the X-Ray. However, for the reason best known to the prosecution, the same has not been produced. This is a glaring lapse on the part of the prosecution which has deprived the courts of the clear picture indicating the magnitude of the offence committed by the appellant. The benefit of such a lapse has only to go to the appellant. The incident as such has not been denied and neither has been the causing of injury with the weapon i.e. gandasa. The offence, in the absence of any conclusive medical opinion, attracting the provisions of Section 307, could at best be termed to be an offence under Section 324 of the IPC. That apart, the incident is stated to have sparked off from a small incident based on the behaviour of the complainant, which was found to be offensive by the appellant and there has been no premeditative intent in the commission of offence.” 17. In the instant case, the ocular version is not supported by medical evidence. As per the statement of PW1, the injuries were given thrust-wise whereas the nature of injuries on the person of the injured were found to be incised. The Hon'ble Supreme Court in Ishwar Singh V. State of Uttar Pradesh, 1976 Crl.L.J. 1993, has held as under:- “8. Appellant Ishwar Singh was however found guilty under Section 302 simpliciter of the Indian Penal Code for the murder of Chauhal Singh. He died of shock and haemorrhage due to the sharp punctured wound on his chest caused, CRA No.143-SB of 2000 -11- according to Dr. A P Mathur, Additional Civil Surgeon, Meerut, who conducted the post-mortem examination, by “some sharp edged pointed weapon”. He added that the wound “might have been caused with a ballam”. But whose hand was it that dealt this fatal blow with a “sharp edged pointed weapon”? PW1 Mahabir, PW2 Satyapal, PW6 Ram Rikh and PW7 Jait Singh have all repeated that it was Ishwar Singh who struck Chauhal Singh with a ballam. But for the reasons we have already given implicit acceptance of their evidence is not possible and one must look for independent corroboration of the fact. The evidence of Sub-Inspector Karam Chand (PW8) is that a ballam was recovered from Ishwar Singh's house, and a bhalla from Harpal's. Dr. Mathur who said that the fatal injury “might have been” caused by a ballam, admitted on cross-examination that he did not know the difference between a ballam and a bhalla. By ballam he meant “such weapon as is sharp edged on both sides, pointed, and less than 2 cm in width” and he added that “if a bhala is of this very shape this injury is possible”. It is not disputed that ballam and bhala are weapons of a similar type. Had the doctor seen the weapons seized from the houses of Ishwar Singh and harpal, it might have been possible for him to say which of them caused the injury. But the weapons seized were not shown to the doctor. In Kartarey V. State of U.P., AIR 1976 SC 76 (at pp. 80-81) this Court emphasized the importance of eliciting the opinion of the medical witness who CRA No.143-SB of 2000 -12- had examined the injuries of the victim. “It is the duty of the prosecution and no less of the court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause, aberration in the course of justice.” In this case it is impossible to say with certainty whether the injury was caused by the ballam or the bhala that were seized, and, therefore, whether it was Ishwar Singh or Harpal who was responsible for it, even if one belived that on the day of occurrence the former carried a ballam and the latter a bhala. Ishwar Singh's conviction under Section 302 of the Indian Penal Code cannot also be sustained in these circumstances.” 18. Though there is delay of 25 hours in lodging the FIR but I do not find that it is fatal to the case of the prosecution as the first anxiety of the complainant-Kewal Singh, was to save the life of the injured. 19. Admittedly, from the statement of complainant, PW1, it is made out that blood was oozing and lot of blood fell on the ground, however, neither blood-stained earth was lifted from the spot by the Investigating Officer, PW6, at the time of spot inspection, nor blood stained clothes of Kewal Singh, PW1, were taken into possession for the reasons best known to the prosecution. Thus, in my opinion, the true genesis of the occurrence appears to have been suppressed by the prosecution and even makes the presence of PW1 doubtful at the spot. 20. Even as per the case of the prosecution, the occurrence sparked CRA No.143-SB of 2000 -13- on account of the intervention made by the appellant while the complainant was sprinkling water in order to suppress dust for reception of the Baraat party. No other fact has been brought on record to the effect that the appellant ever nursed any ill-will or had inimical relations with the complainant, therefore, the alleged act lacks criminal intent and, therefore, the essential ingredients of Section 307 IPC viz. common intention to commit the crime, etc. are missing as is held by Hon'ble the Supreme Court in Pashora Singh and another Vs. State of Punjab, 1992(3) AILR 694, which reads thus:- “8. In our view, in the facts and circumstances of the case, no offence under Section 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 the right knee 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 Labora Singh and the third one by Pashora Singh. It is an admitted case of the prosecution that the accused persons had a grievance against Amar Singh and his uncle Malikat 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 CRA No.143-SB of 2000 -14- had given a Gandasa blow on the right knee of 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 person 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 had committed any offence under Section 307 read with Section 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 under Section 326 read with Section 34 of the Indian Penal Code. CRA No.143-SB of 2000 -15- 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 Labora 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 falled 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