Criminal Revision No.517 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.517 of 2005 Date of Decision 16.12.2010 Om Parkash and another ...... Petitioners VERSUS State of Haryana ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Ms.Ashima Mor, Advocate, for Mr.Hemant Bassi, Advocate, for the petitioners. Mr.J.S.Rattu, Deputy Advocate General, Haryana, for the respondent-State. ***** A.N.JINDAL, J: Five accused namely Om Parkaosh, Balbir, Daulat, Krishan Kumar and Hawa Singh were convicted and sentenced by the trial Court vide its judgment dated 05/07.12.2002 as under:- Name of Offence Sentence accused Daulat Ram, 323 IPC S.I. for a period of three months Om Parkash, each. Balbir Krishan, and Hawa Singh 326 IPC S.I. for a period of three years and to pay a fine of Rs.500/- each. Om Parkash, Balbir, Krishan and Hawa Singh 324 IPC S.I. for a period of one year each. However, during appeal, vide judgment dated 21.02.2005, Appellate Court at Hisar held that Daulat Ram and Balbir had not shared the common intention. They, having caused simple injuries, were acquitted of the charges under Sections 324 and 326 IPC. However, while upholding their conviction under Section 323 IPC, they were ordered to be released on Criminal Revision No.517 of 2005 2 probation, whereas conviction of Om Parkash, Krishan and Hawa Singh under Sections 323, 324 and 326 read with Section 34 IPC was affirmed. However, the sentence awarded to them under Section 326 IPC was reduced to one year. In nutshell, the allegations are that on 31.12.1995, at about 9/9:15 p.m., complainant Om Parkash (herein referred as 'the complainant') alongwith his brother Mahinder Singh was going from northern farm house to the Southern Farm house on the tractor, which was being driven by his brother Ravinder Singh. When they reached near the house of Ram Kumar, Barbar, Om Parkash, armed with axe, Budh Ram @ Krishan and Hawa Singh armed with sticks way laid them. Om Parkash inflicted an axe blow on the waist of complainant; Budh Ram inflicted stick blow on his head and Hawa Singh broke the light of the tractor. In the meantime, Daulat Ram and Balbir, both sons of Bhagirath, came at the spot and started beating Mahinder Singh. Daulat Ram gave stick blows above his right eye and right leg and Om Parkash inflicted an axe blow on his left arm (which was declared grievous in nature). On raising hue and cry, Gauri Shankar was attracted to the place of occurrence and he rescued them. The motive behind the occurrence is that they were annoyed at complainant Om Parkash who wanted to become the Sarpanch in the election. On the aforesaid statement of complainant, case was registered and investigated. On submission of the report under Section 173 Cr.P.C., the accused were charged for the offences under Sections 323, 324, 326, 427 read with Section 34 IPC to which they pleaded not guilty and opted to contest. The prosecution, in order to substantiate the charges, examined Criminal Revision No.517 of 2005 3 seven witnesses in all. When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded their false implication in the case. The trial resulted into conviction of all the accused under Sections 323, 324, 326 read with Section 34 IPC. However, in appeal, accused Daulat Ram and Balbir were acquitted of the charge under Section 326 read with Section 34 IPC. Accused Krishan has not preferred any revision. Arguments heard. Record perused. Learned counsel for the petitioner, while assailing the legality of the judgment, has stated that the prosecution version is based on the testimonies of the interested witnesses. The injuries, suffered by complainant Om Parkash and Mahinder, are the result of fall from the tractor. However, the petitioners were falsely implicated in the case. It has been further urged that the axe was not recovered from the accused. Even otherwise, no offence under Section 326 IPC is made out. Having pondered over the arguments, it is observed that no doubt the accused caused injuries with axe and sticks but non recovery of weapons is not fatal to the prosecution case. Similar observations were made in case State of Haryana versus Attar Singh 2003 (3) RCC 275. Now coming to the other argument that no offence under Section 326 IPC is made out, Dr.J.S.Bhatia, who appeared in the witness box as PW2, has examined Mahinder Singh on 31.12.1995 and observed the following injuries:- 1. There was an incised wound 3 x ½ cm. with sharp margins muscle deep above the right eye. Surgeon's opinion sought. 2. Another incised wound 2 x 1 cm on the back of left elbow with sharp margins x-ray advised. Criminal Revision No.517 of 2005 4 3. Abraded swelling on the right leg in the middle on the lateral side 2 x 2 cms. X-ray advised. On the same day, he had also examined Om Parkash and found the following injuries on his person:- 1. Incised wound on the back of chest 5 cms x ½ cm underlying muscles were cut. X-ray advised. 2. A lacerated wound on the top of scalp 2 cms x 1 cm with rough margins. Surgeon's opinion sought. Dr.J.S.Bhatia (PW2) further opined that injury No.1 was the result of sharp edged weapon whereas injury No.2 was the result of blunt weapon and proved the MLR Ex.PG. Dr.Pawan Jain (PW5) had radiologically examined Mahinder Singh on 01.01.1996 and observed that there was a fracture of the left elbow. He proved his report Ex.PW5/A, x- ray films Ex.PW5/B and Ex.PW5/C. The medical evidence is quite consistent to the ocular version given by complainant Om Parkash (PW3) as well as Mahinder Singh (PW4). Both the witnesses have consistently stated that Om Parkash had inflicted axe blows on the left arm and back of Mahinder Singh; accused Budh Ram @ Krishan had given stick blow on his head and accused Hawa Singh had inflicted lathi blow on the tractor. The grievous injury, caused on the left arm of Mahinder Singh, is attributed to Om Parkash, thus, it is established that Om Parkash in furtherance of common intention of accused Budh Ram @ Krishan, caused injuries to complainant Om Parkash and Mahinder Singh, as such the Appellate Court was right in convicting the accused Om Parkash and Hawa Singh under Sections 326 and 324 read with Section 34 IPC. Keeping in view the circumstances of the case, though this Court has no reasons to form a different opinion than what has been formed Criminal Revision No.517 of 2005 5 by the first Appellate Court, the conviction and sentence awarded against accused Om Parkash and Hawa Singh is bound to be maintained. Learned counsel for the petitioners while arguing on the point of quantum of sentence particularly qua accused Hawa Singh, has submitted that he is forty years old and is suffering from polio, having 80% disability and in support thereof he has placed on record a photostat copy of the disability certificate dated 24.08.2000, therefore, some leniency could be shown to him. Having considered the arguments on the quantum of sentence qua Hawa Singh that he is suffering from polio and having 80% disability and he has undergone two months and 19 days of the substantive sentence, therefore, it would not be in the fitness of things to send him to imprisonment again keeping in view his physic. As regards the other accused, earlier the trial Court had sentenced them to undergo simple imprisonment for a period of three years and to pay a fine of Rs.500/- each whereas the Appellate Court reduced the same to one year. Since the sentence has already been reduced and keeping in view the nature and gravity of the offence that the injured were beaten badly as a result Mohinder Singh suffered fracture of left elbow, therefore, there are no grounds further to reduce the same any more. Resultantly, this petition is dismissed with the modification in the sentence of Hawa Singh, which is reduced to already undergone whereas the sentence awarded to the other petitioners is ordered to be maintained. (A.N.Jindal) Judge 16.12.2010 mamta-II