Criminal Revision No.2684 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2684 of 2008 (O&M) Date of decision: 13.05.2010 Harjinder Singh alias Jinda and another ..............Petitioners Versus State of Punjab ..............Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. Navdeep Chhabra, Advocate, for the petitioners Mr. J.S.Sandhu, Assistant Advocate General, Punjab HARBANS LAL,J. This revision is directed against the judgment dated 4.11.2008 passed by the court of learned Additional Sessions Judge, Ferozepur whereby he dismissed the appeal filed by accused Harjinder Singh alias Jinda, Raju and Darshan Singh alias Darshi against the judgment/order of sentence dated 12.2.2008 rendered by the court of learned Judicial Magistrate Ist Class, Fazilka vide which he convicted and sentenced the accused Raju to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5000/- under Section 326 of the Indian Penal Code and in default of payment of fine to further undergo imprisonment for one month and also sentenced the accused Harjinder Singh alias Jinda and Darshan Singh alias Darshi to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5000/- each under Section 326 read with Section 34 of the Indian Penal code and in default of payment of fine, the defaulter to further undergo Criminal Revision No.2684 of 2008 (O&M) 2 rigorous imprisonment for one month and further sentenced the accused Darshan Singh alias Darshi to undergo rigorous imprisonment for one year under Section 324 of the Indian Penal Code and also sentenced the accused Harjinder Singh alias Jinda and Raju to undergo rigorous imprisonment for one year each under Section 324 read with Section 34 of the Indian Penal Code and further sentenced accused Harjinder Singh alias Jinda to undergo rigorous imprisonment for six months under Section 323 of the Indian Penal Code and also sentenced accused Raju and Darshan Singh alias Darshi to undergo rigorous imprisonment for six months each under Section 323 read with Section 34 of Indian Penal Code with a further direction that all the sentences shall run concurrently. Shortly put, facts of the prosecution case are that Gurcharan Singh PW made a statement before the police in the terms that today (referring to 22.4.1998) at about 6.30 A.M. his sister-in-law Harmit Kaur wife of Surjit Singh was going to the house of Chhota Singh of their village for taking money. When she happened to pass in front of the house of Swarni wife of Bohar Singh meanwhile Harjinder Singh alias Jinda accused and Darshan Singh alias Darshi accused came out from the house of Bohar Singh and grappled with her and uttered hot words. On reaching the house, she narrated this occurrence to them. He alongwith his brother Surjit Singh was proceeding to the house of Bohar Singh to lodge protest and when they reached on the turning point of 'phirni' (periphery) Harjinder Singh alias Jinda duly armed with dang, his brother Raju armed with 'kasia' and Darshan Singh alias Darshi armed with gandasi came there by raising 'lalkara' from the side of the house of Bohar Singh. The accused Jinda raised Criminal Revision No.2684 of 2008 (O&M) 3 'lalkara' to catch hold and teach a lesson for preventing them from cutting fodder. Meanwhile Raju gave 'kasia' blow which hit him on the right side of his head from it's sharp edged side and on receipt of this injury he fell down on the ground. When he lay fallen on the ground Darshan Singh alias Darshi delivered gandasi blow from its sharp edge side which landed on the medial aspect of his left knee. When his brother Surjit Singh came forward to rescue him, Harjinder Singh alias Jinda dealt a dang blow on his head. In the meantime, Darshan Singh alias Darshi gave another gandasi blow from its sharp edged side, which hit on his (Gurcharan Singh) dorsal aspect of base of his left big toe. On being raised alarm, large number of persons from the neighborhood were attracted to the place of occurrence. Gurdial Singh rescued them by coming forward. Thereafter, the accused decamped from the spot with their respective weapons. The motive behind the occurrence was that about five/six days prior to the occurrence, Surjit Singh brother of Gurcharan Singh had prevented Raju accused from cutting fodder in their fields and accused started harbouring grudge in their mind and due to that reason, in furtherance of their common intention they caused injuries to them. On the basis of this statement, the case was registered. The accused were arrested. After completion of investigation, the charge sheet was laid in the court for trial of the accused. The accused were charged under Sections 326/324/323 read with Section 34 of I.P.C. to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 Dr. M.M.Singh, PW-2 Gurcharan Singh, PW-3 Surjit Singh, PW-4 V.K.Munjral, HC Iqbal Singh and closed its evidence. Criminal Revision No.2684 of 2008 (O&M) 4 When examined under Section 313 of Cr.P.C., all the accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. In their defence, they did not adduce any evidence. After hearing the learned Assistant Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, they went up in appeal which was dismissed by the court of Additional Sessions Judge, Ferozepur. Being undaunted and dissatisfied with the judgments recorded by both the courts below, Harjinder Singh alias Jinda and Darshan Singh alias Darshi have preferred this revision. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioners has argued that as per the prosecution story Gurdial Singh had witnessed the incident and saved the complainant party from accused persons but he has not been examined and his non-examination renders the prosecution story doubtful. This contention is unacceptable for the reason that he had reached the place of occurrence on being raised alarm by the injured persons. He being not a witness to the entire occurrence, his examination was uncalled for. It is further maintained that there was delay of as many as 8 hours in lodging the F.I.R. inspite of the fact that Police Station was on the way to the hospital, which shows that the present case is the result of an after thought. This contention does not find favour with me. It is an accredited rule of law that delay per se is not Criminal Revision No.2684 of 2008 (O&M) 5 fatal to the prosecution case. The occurrence took place around 6.30 A.M. As per the medical evidence tendered by M.M. Singh PW-1 the injured Surjit Singh was medico legally examined at 9.00 A.M on 23.4.1998. The injured Gurcharan Singh was medico legally examined at 9.15 A.M. The statement of Gurcharan Singh injured was recorded at 1.45 P.M. Sometime would have certainly been lost in arranging the vehicle for taking the injured persons to the hospital. Other time would have consumed in covering the distance. As mentioned in the index of F.I.R. the distance between the village in which the occurrence took place and the Police Station is 13 miles. Thus, in my view the alleged delay stands satisfactorily explained. It is, further submitted that it is in the evidence of the Doctor that the complainant party could have suffered these injuries by fall. Thus, the prosecution story is falsified. Of course, Dr. M.M. Singh PW-1 has stated in his cross-examination that “injuries No.2 and 3 on the person of Gurcharan Singh are possible by fall and striking against the sharp edged weapon by different fall but it is to be borne in mind that it is merely an opinionative evidence. Gurcharan Singh PW-2 and Surjit Singh PW-3 are the stamped witnesses. They could not be shattered or shaken when they were cross-examined. A careful delving into their cross-examination would reveal that no material favourable to the defence could be elicited. They stood like a rock. It is well settled that where the eye witnesses account is found credible and trustworthy, the medical opinion pointing to alternative possibility is not accepted as conclusive. Thus, this submission being bereft of any merit is turned down. Criminal Revision No.2684 of 2008 (O&M) 6 No other material point has been urged or agitated by either counsel. On analyzing and scrutinizing the entire evidence, it transpires that the conviction recorded by the learned Trial Court cannot be faulted with in any manner. Sequelly, the same is maintained. The learned counsel for the petitioners has submitted that this incident being pretty old, the sentence may be reduced to the already undergone. I have given a deep and thoughtful consideration to this submission. The petitioners have been facing the agony of trial since, April 1998. Thus this incident is 12 years old. The petitioners were admitted to bail by this Court vide order dated 4.2.2009. Since then no untoward incident between the parties has been reported. It clearly indicates that they did not make misuse of this opportunity. As is borne out from the record, they have undergone five months of the actual sentence. Taking into consideration the cumulative facts and circumstances of the case, the sentence of the petitioners is reduced to the already undergone (5 months each). The head injury on the person of Gurcharan Singh complainant has been attributed to the petitioner Raju. Gurcharan Singh can be compensated in monetary terms. Therefore, the amount of fine inflicted upon the petitioner Raju is enhanced from Rs.5000/- to Rs.15,000/- which on realization shall be disbursed to Gurcharan Singh injured by the learned trial Court. The petitioner shall deposit the enhanced amount of fine with the trial Court within three months from the date of receipt of the certified copy of this judgment. If he failed to deposit the same within three months, his revision petition shall be deemed to have been dismissed and in that Criminal Revision No.2684 of 2008 (O&M) 7 eventuality, the trial Court shall give intimation in this regard to the court of learned Chief Judicial Magistrate, Ferozepur, who in turn take the necessary steps to procure presence of this petitioner Raju and send him to the prison for serving the unexpired portion of his sentence. With this modification in the order of sentence, this petition fails and is dismissed. Since the petition has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of. (HARBANS LAL) JUDGE May 13, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No