IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 71-SB of 2003 Date of Decision : January 21, 2010 Baldev Raj and another ....Appellants Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. P.S. Hundal, Senior Advocate with Mr. Dinesh Trehan, Advocate for the appellants. Mr. P.S. Grewal. Assistant Advocate General, Punjab T.P.S. MANN, J. (Oral) For an occurrence, which took place on 24.9.1996 at 7.30 A.M. in village Raipur, wherein Joginder Pal, since deceased, and Krishna Devi, Bhajno Devi and Hans Raj received injuries, the appellants alongwith five others were tried by Sessions Judge, Gurdaspur for offences under Sections 302/326/149 and 148 IPC. Vide judgment and order dated 24.12.2002, the trial Court acquitted five co- accused of the appellants of the charges against them. Baldev Raj appellant was convicted under Section 304 Part II IPC and sentenced to undergo RI for seven years and to pay a fine of Rs. 2,000/-, in default thereof, to undergo further RI for one year. He was also convicted under Section 323 IPC and sentenced to undergo RI for six months. Suresh @ Criminal Appeal No. 71-SB of 2003 -2- Sema-appellant was convicted under Section 326 IPC and sentenced to undergo RI for four years and to pay a fine of Rs.1,000/-, in default thereof, RI for six months, and RI for one year under Section 324 IPC. The substantive sentences were ordered to run concurrently. The FIR was registered on the basis of a statement made by Smt. Krishna Devi, one of the injured. She stated that on 24.9.1996, she, alongwith her husband's brother's wife Bhajno Devi, was preparing cow-dung cakes in a plot, which was owned by them alongwith one Janak Raj. Accused Baldev Raj and his son Naresh Kumar asked them to remove the cattle from the plot as they had purchased it from Janak Raj. To this, the complainant replied that they had obtained an order of stay and would not vacate the plot till the decision arrived at in a Court of law. Naresh Kumar raised a lalkara to teach a lesson to the complainant party for obtaining stay order from the Court. It brought Suresh Kumar carrying a kirpan, Balbir Singh armed with a datar, Joginder Pal with a kirch, Asha Nand with a dang and Anju Bala with a dang to the spot. Suresh Kumar then inflicted a kirpan blow to the complainant which she tried to ward off but it hit on her left hand finger and thumb. Baldev Raj gave slap to her. Anju Bala gave dang blows hitting on the back and waist of the complainant. Naresh Kumar then took the dang from Anju Bala and inflicted blow with the same on the back side of left palm of the complainant. When Bhajno Devi came forward to rescue the complainant, Naresh Kumar accused inflicted two Criminal Appeal No. 71-SB of 2003 -3- dang blows to her. Both the lady victims raised hue and cry which brought Joginder Pal and Hans Raj to the spot. All the accused then turned towards Joginder Pal and Hans Raj and inflicted injuries upon them. When villagers started gathering there, the assailants decamped from the spot carrying their respective weapons. All the four victims of the incident were removed to the hospital, where Joginder Pal succumbed to his injuries. After recording statement Ex.PM of Smt. Krishna Devi, ASI Sukhwinder Singh sent the same to the Police Station, on the basis of which FIR No.110 dated 24.9.1996 was registered at Police Station Dinanagar. The said official then conducted investigation during which he recorded the statements of the witnesses, prepared rough site plan, took into possession blood stained earth as well as blood stained clothes. Part of the investigation was conducted by ASI Joginder Singh, who arrested Baldev Raj accused on 27.9.1996, Joginder Pal on 29.9.1996, Suresh Kumar on 30.9.1996 and Naresh Kumar on 26.12.1996. At the instance of Baldev Raj accused, mohri Ex.P1 was recovered by the police. Similarly, kirch Ex.P2 , kirpan Ex.P3, dang Ex.P4, and datar Ex.P5 were got recovered at the instance of Joginder Pal, Suresh Kumar, Naresh Kumar and Balbir Singh accused, respectively. Subsequent to completion of the investigation, final report under Section 173 Cr.P.C. was submitted in the Court. It was followed by commitment of the case to the Court of Sessions and framing of Criminal Appeal No. 71-SB of 2003 -4- charges as aforementioned against the appellants and the co-accused. In support of its case, the prosecution examined PW1 Dr. B.S. Bajwa, PW2 Joginder Pal, Halqa Patwari, PW3 Smt. Krishna Devi complainant, PW4 Constable Vijay Kumar, PW5 Dr. Jagjiwan Lal, Radiologist, PW6 Smt. Bhajno injured, PW7 Dr. Gurmanjit Rai, PW8 ASI Sukhwinder Singh, PW9 ASI Joginder Singh and PW10 Constable Dharam Pal. When examined under Section 313 Cr.P.C., all the accused denied the prosecution allegations and stated that they had been falsely implicated. Two accused, namely, Balbir Singh and Naresh Kumar took up the plea of alibi. In defence, the accused examined seven witnesses. After hearing learned counsel for the parties and perusing the evidence, the trial Court came to a conclusion that the prosecution was not able to establish the guilt of the five co-accused of the appellants. Accordingly, they were acquitted of the charges against them. It was further held that occurrence had taken place all of a sudden and, therefore, provisions of Section 34 IPC were also not attracted. As a solitary blow had been attributed to Baldev Raj appellant with mohri on the head of Joginder Pal deceased but the occurrence having taken place at the spur of moment, therefore, there was no intention in the mind of Baldev Raj-appellant to commit the murder, as the Mohri wielded by him, was lying on the spot. Thus, the trial Court came to a Criminal Appeal No. 71-SB of 2003 -5- conclusion that he could not be convicted for offence under Section 302 IPC. Instead, he was held guilty under Section 304 Part II IPC for having caused an injury which he knew was likely to cause death. Apart from that he was also found guilty under Section 323 IPC for giving slap to the complainant. Similarly, Suresh @ Sema appellant was held guilty under Section 326 IPC for giving kirpan blow to the complainant, as a result of which she received a fracture on the palmer surface of the left hand of the complainant, besides another simple injury to the complainant making him liable for the offence under Section 324 IPC. At the very outset, learned counsel for the appellants states that Suresh @ Sema appellant has died on 9.9.2006. In this regard, he has produced death certificate dated 29.11.2006 issued by the Registrar, Births and Deaths, Gram Panchayat Development Block, Indora, which is taken on record. Accordingly, learned counsel for the appellants states that the appeal of Suresh @ Sema appellant stands abated. The implication of Baldev Raj appellant for the offences under Sections 304 Part II IPC and 323 IPC stands amply proved from the testimonies of Smt. Krishna Devi complainant and Smt. Bhajno Devi PWs 3 and 6, respectively, who testified about the ocular account. Their testimonies stand corroborated by the medical evidence. The injuries of Joginder Pal, since deceased, were proved by Dr. Gurmanjit Rai. On account of receiving a mohri blow at the hands of Baldev Raj appellant, Criminal Appeal No. 71-SB of 2003 -6- there was a lacerated wound on the head of Joginder Pal. This injury was declared sufficient to cause death in the ordinary course of nature. The weapon of offence, namely, mohri was also recovered at the instance of Baldev Raj appellant. Under these circumstances, there is no option but to hold that Baldev Raj was liable under Section 304 Part II IPC for causing the injury on the person of Joginder Pal deceased which he knew was likely to cause death. Similarly, the implication of Baldev Raj under Section 323 IPC is not open to challenge. Accordingly, the conviction of Joginder Pal appellant under Sections 304 Part II and 323 IPC is upheld. Baldev Raj appellant was recorded as 60 years of age at the time of framing of the charges, i.e. on 5.2.2001. He spent a period of about six months in jail as an under-trial. Upon his conviction, he was again taken into custody on 24.12.2002 and in appeal he was granted the concession of bail on 10.3.2005. He, thus, spent a period of about two years and three months in jail as a convict. Adding the under-trial period to the same, he has already served actual sentence of about two years and nine months. He had been facing the agony of criminal prosecution since the year 1996. Under these circumstance, no useful purpose would be served by sending him behind the bars, once again, so as to serve the remaining sentence. Ends of justice would be amply met by reducing his substantive sentences of imprisonment to that already undergone by him. At the same time, he can be directed to pay an Criminal Appeal No. 71-SB of 2003 -7- amount of Rs.50,000/- as compensation in addition to the fine of Rs.2,000/- imposed upon him by the trial Court under Section 304 Part II IPC. Resultantly, the appeal of Suresh @ Sema is disposed of as having been abated. The conviction of Baldev Raj appellant under Sections 304 Part II and 323 IPC is maintained. However, his substantive sentences of imprisonment are reduced to that already undergone by him. Sentence of fine, alongwith its penalty clause imposed by the trial Court, is also affirmed. Apart from the same, Baldev Raj appellant shall deposit an amount of Rs.50,000/- as compensation with Chief Judicial Magistrate, Gurdaspur within three months from today which be paid as such to Smt. Kamla Devi widow of Joginder Pal as compensation. In case, the amount of compensation is not paid by Baldev Raj within the stipulated period of time, he shall be required to serve the sentences of imprisonment as imposed by the trial Court. (T.P.S.MANN) January 21, 2010 JUDGE satish