Criminal Revision No.2097 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2097 of 2004 Date of Decision 09.03.2010 Narinder ...... Petitioner(s) VERSUS State of Haryana ...... Respondent(s) CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.K.V.Aggarwal, Advocate, for the petitioner. Mr.RajivMalhotra, Addl. Advocate General, Haryana. ***** A.N.JINDAL, J: On account of the assault allegedly committed by the petitioner-accused (herein referred as 'the accused), Dilbag Singh injured lost his eye, consequently he was prosecuted for the offences under Sections 323, 325, 326 of the Indian Penal Code. Ultimately, vide judgment dated 02/03.09.2003, passed by Judicial Magistrate Ist Class, Rohtak, he was sentenced to undergo rigorous imprisonment for a period of 6 months under Section 323 IPC, rigorous imprisonment for a period of 2½ years and to pay a fine of Rs.500/- under Section 325 IPC and rigorous imprisonment for a period of 2½ years and to pay a fine of Rs.500/- under Section 326 IPC. However, vide judgment dated 05.10.2004, the Appellate Court, while acquitting the accused under Sections 323 and 325 IPC, maintained his conviction and sentence under Section 326 IPC. Brief resume of facts apparent from the statement Ex.PA, made by Dilbag Singh injured before ASI Nar Singh (PW3), made in PGIMS, Rohtak, on 08.06.1993, is that on the intervening night of 07/08.06.1993 at about 9:10 p.m. he and Hoshiar Singh (DW1) were altercating over the Criminal Revision No.2097 of 2004 2 street water. In the meantime, the accused Narinder (nephew of Hoshiar Singh-DW1) threw a brick from the roof top which hit on his forehead, nose and left eye. Resultantly, he cried “ Mar Diya-Mar Diya”, which attracted his wife Bhagwani (PW2), who was standing on the door step. On suffering the injuries, Dilbag Singh had fallen on the ground. Thereafter, he was shifted to the hospital by his wife Bhagwani. Both the injuries on his person were subjected to x-ray examination. DDR Ex.PW3/D was recorded at the police station Sadar, Rohtak.. Dilbag Singh was medically examined by Dr.Rajesh Saini, Registrar, Eye Department Medical College Rohtak, (PW4) who advised evisceration of the left eye of Dilbag Singh and it was done on 12.06.1993. On x-ray examination of these injuries, fracture of frontal bone of the skull of Dilbag Singh was also noted and injury was found to be grievous in nature. As such FIR Ex.PW5/A was registered after adding the offence under Section 326 IPC. He conducted the investigation and moved application Ex.PW5/B on 24.08.1993 regarding the injury thereupon Dr.Rajesh Saini (PW4) opined vide his report Ex.PW4/B as under:- “Patient Dilbagh Singh was admitted with perforated injury (Corneal tear with iris prolapse) and fracture frontal bone. The evisceration of the eye was done and the evisceration of the eye was due to lacerated wound. The perforating injury and fracture frontal bone can be caused by a blunt object.” The Investigating Officer arrested the accused; recorded the statements of the witnesses and on completion of investigation, the charge report was submitted. In order to substantiate the charges, the prosecution examined complainant Dilbagh Singh (PW1), Bhagwani Devi (PW2), an eye witness, Criminal Revision No.2097 of 2004 3 ASI Nar Singh (PW3), Dr.Rajesh Saini (PW4), and ASI Ram Niwas (PW5). Record Keeper Mahinder Singh of PGIMS, Rohtak was also examined to prove the medical treatment record of injured Dilbag Singh with operational note Ex.PW5/A therein and copy of his medico legal report. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. In defence, the accused examined his uncle Hoshiar Singh (DW1) and Wazir Singh (DW2). The trial ended in conviction. However, in appeal, since the prosecution could not examine the radiologist to prove the fracture of the frontal bone of the skull, therefore, while holding that injury to the eye of Dilbag Singh resulting into evisceration of his left eye, convicted him under Section 326 IPC whereas he was acquitted under Sections 323 and 325 IPC. The prime argument raised by learned counsel for the petitioner-accused is delay in lodging the FIR. He has urged that though the occurrence took place on the intervening night of 07/08.06.1993 yet the FIR was recorded on 19.07.1993, therefore, this long delay in registering the case is fatal to the prosecution case. Having given my thoughtful consideration, I do not find any merit in the same. The occurrence took place at about 11:00 p.m. on 07.06.1993. At that time, the Investigating Officer had no opinion of the doctor regarding the injury on the frontal bone as well as in the eye, therefore, finding that no cognizable offence was made out, he recorded the DDR Ex.PW3/D. However, lateron vide report Ex.PW4/B, the offence was converted under Section 326 IPC and case was got registered but there is no contradiction with regard to the contents in the FIR as well as the DDR Criminal Revision No.2097 of 2004 4 dated 08.06.1993. Immediately after the occurrence, the injured was admitted in the hospital during the same night at about 11:55 p.m. The x- ray report was received by the Investigating Officer on 19.07.1993, as such the case was registered forthwith. In these circumstances, the delay if any assumes no significance. No merit could be found in the other argument of the learned counsel for the petitioner that the testimony of Dilbag Singh does not find corroboration from any independent witness. No doubt the occurrence took place in the street but it was too late in the night to assume the presence of the independent witnesses in the street. The presence of Bhagwani Devi in his house could not be doubted. Immediately after the occurrence, she took him to the hospital and got him admitted. Dilbag Singh while appearing as PW1 has given minute details of the occurrence by stating that the accused threw the brick from the roof top, hitting him on his head, as a result of which he lost his eye. Since there was a dispute between Hoshiar Singh (DW1) and the complainant about the street water, as such the accused must be nursing a grudge being the nephew of Hohiar Singh (DW1). This motive for commission of crime also stands established. The testimony of Dilbag Singh (PW1), having cleared the test of reliability and trustworthiness, could be placed reliance. Nothing material has been pointed out by the accused to enable this Court to discredit this witness. His testimony stands corroborated by Bhagwani Devi (PW2), who had witnessed the occurrence while standing at the door step. It is a case where there is one injured and one accused, who caused the two injuries with a brick. Bhagwani Devi (PW2) so as Dilbag Singh (PW1) were not assigned any reason for implicating him falsely in this case. No person, having suffered such serious Criminal Revision No.2097 of 2004 5 injuries, would replace the wrong person while leaving the real culprit. Even during the cross examination, the defence counsel suggested Bhagwani Devi (PW2) tha t there was altercation between Dilbag Singh and Hoshiar Singh (DW1), therefore, the motive regarding the dispute between them and factum with regard to their presence in the street stand established. The testimonies of aforesaid two witnesses stand corroborated by medical evidence coming from the mouth of Dr.Rajesh Saini (PW4), who while posted as Registrar in Eye Department, Medical College Rohtak, had medically examined Dilbag Singh on 08.06.1993 and found stitched wound on his left eye brow. There was moderate lid adima and ecchymosis and there was also tear with irisprolase. He advised him evisceration of the left eye which was done on 12.06.1993 and he was discharged from the hospital on 23.06.1993. This witness has proved the operation note Ex.PW4/A from the medical record brought in evidence by Mahinder Singh, Record Keeper of PGIMS, Rohtak and also proved the medical opinion Ex.PW4/B given on the police application Ex.PW5/B. Thus, injury in the eye was directly due to the brick, thrown on the head of the injured, by the accused from the roof top. The broken brick having sharp edges could be termed as dangerous instrument of cutting, as such, certainly it falls within the purview of Sub Clause second of Section 320 IPC punishable under Section 326 of the Indian Penal Code. So far as the defence, set up by the accused, is concerned. Both Hoshiar Singh (DW1) and Wazir Singh (DW2), being the real uncles of the accused Narinder Singh, could go to any extent to save him from imprisonment. Though, they have set up the case that Dilbag Singh suffered injury when he had quarrelled with some other boys under the influence of Criminal Revision No.2097 of 2004 6 liquor, he had fallen dow n on a stone and received injuries on his left eye but the said defence plea appears to be fictitious one. Had Dilbag Singh been under the influence of liquor then the doctor, who examined him, must have pointed out the same in the Medico Legal report but nothing has been mentioned in the same about the smelling of the alcohol from the injured. In any case, besides the fact that the two defence witnesses have supported the accused, the aforesaid defence version is doubted for yet another reason that it was neither put to Dilbag Singh (PW1) nor to ASI Nar Singh, Investigating Officer (PW3). Wazir Singh (DW2), besides being the uncle of the accused is also a retired Asstt. Sub-Inspector of the police, as such it was obvious for him to come at the shelter of his nephew. Both the Courts below have concurrently observed that the accused while throwing the brick from the roof top, caused injuries to Dilbag Singh. Both the Courts have not believed defence plea being not probable and plausible. The impugned judgments appear to be well based and well reasoned and do not suggest any second plausible or probable opinion, as such no interference could be made in the same at this revisional stage. Now coming to the quantum of sentence, since the accused has committed such a heinous crime which resulted into the loss of eye of the injured, therefore, no leniency in the quantum of sentence could be extended to him. Resultantly, finding no merit in the petition, the same is dismissed. (A.N.Jindal) Judge 09.03.2010 mamta-II