Criminal Revision No. 1896 of 2006 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Revision No. 1896 of 2006 Date of Decision: 26.11.2011 Balbir Singh and Others ... Petitioners Versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sudhir Sharma, Advocate for the petitioner. Mr. J.S. Sandhu, Assistant Advocate General, Punjab, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition is preferred by four persons, namely Babir Singh son of Jarnail Singh, Jeeta son of Kewal Singh, Gindo alias Joginder Singh son of Tulsi Ram and Kewal Singh son of Pritam Singh. They were nominated as accused in case FIR No. 30 dated 19.5.1996, registered at Police Station Sadar, Phagwara, under Sections 326, 325, 148, 427 and 149 IPC. Vide impugned judgment dated 28.8.1998, the Court of Judicial Magistrate Ist Class, Phagwara, held the petitioners guilty of offence under Sections 148, 326, 427 and 149 IPC and vide a separate order of even date, sentenced them as under:- Criminal Revision No. 1896 of 2006 2 Sr. No. Name of accused Sentence Under Section Sentence Awarded 1 Balbir Singh, Jeeta, Sukha, Gindo and Kewal Singh 149 IPC To undergo rigorous imprisonment for a period of six months. 2 Balbir Singh 326 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 500, in default thereof to further undergo rigorous imprisonment for a period of three months. 3 Jeeta, Sukha, Gindo and Kewal Singh 326 read with Section 149 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 500 each, in default thereof to further undergo rigorous imprisonment for a period of three months each. 4 Kewal Singh 325 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 200, in default thereof to further undergo rigorous imprisonment for a period of three months. 5 Balbir Singh, Jeeta, Sukha and Gindo 325 read with Section 149 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 200 each, in default thereof to further undergo rigorous imprisonment for a period of three months each. 6 Jeeta, Sukha and Gindo 427 IPC To undergo simple imprisonment for a period of three months each. 7 Balbir Singh and Kewal Singh 427 read with Section 149 IPC. To undergo simple imprisonment for a period of three months each. All the sentences were ordered to run concurrently. Aggrieved against the same, the petitioners have filed an appeal. The lower Appellate Court, vide its judgment dated 8.9.2006, had recorded acquittal of the petitioners for the offence under Section 326 IPC or under Section 326 read with Section 149 IPC and under Criminal Revision No. 1896 of 2006 3 Section 427 IPC and under Section 427 read with Section 149 IPC. However, it convicted Kewal Singh under Section 325 IPC for having caused injury with blunt weapon on the right ankle joint of PW.4 Surinder Singh, whereas the remaining accused under Section 325 read with Section 149 IPC. Accused Balbir Singh was convicted under Section 324 IPC, whereas the remaining accused under Section 324 read with Section 149 IPC were held guilty. All the sentences were ordered to run concurrently. Admittedly, nobody was injured from the petitioners' side. PW.4 Surinder Singh, who on 19.5.1996, was examined by PW.2 Dr. Kailash Kapoor, Medical Officer, Civil Hospital, Phagwara, had suffered two injuries, which were declared as grievous. Mr. J.S. Sandhu, Assistant Advocate General, Punjab, appearing for the State, has submitted that the lower Appellate Court has committed a grave error by recording acquittal of all the accused for the offence under Section 326 IPC and the reasoning given for their acquittal cannot be sustained in the eyes of law. It is not disputed that acquittal of the petitioners, for the offence under Section 326 IPC, has not been made a subject matter of challenge by filing any appeal or revision either by the State or the complainant. Mr. Sudhir Sharma, Advocate, appearing for the petitioners, to controvert the arguments raised by learned counsel for the State, has submitted that it is a straightway case of acquittal of the petitioners as the prosecution has failed to prove possession of the complainant over the land bearing khasra Nos. 1136 and 1141. According to Mr. Criminal Revision No. 1896 of 2006 4 Sharma, as per the story divulged by the complainant, they were ploughing the fields with a tractor and in case this Court comes to the conclusion that the complainant was not in possession of the land in dispute then the petitioners are entitled to plead right of self-defence as the fields were in their possession. Therefore, the only issue which arises for consideration of this Court is as to who was in possession of khasra Nos. 1136 and 1141. With the able assistance of learned counsel for the parties, before this Court could formulate its conclusion, it will be necessary to notice the case of prosecution, in brief. The prosecution case has emerged in the statement Ex.PW.3/A made by PW.3 Gurmail Singh, on the basis whereof a formal FIR Ex.PW.6/D was registered. PW.3 Gurmail Singh, in his statement Ex.PW.3/A, has stated that he was a resident of village Mauli and was doing agricultural work. He has six sons and three daughters. His three sons are settled abroad and remaining three sons namely Surinder Singh, Parminder Singh and Narinder Pal Singh were assisting him in his agricultural work. They have got land in village Padwan. The adjoining 13 kanals of land which is owned by Bhajan Kaur wife of Pritam Singh was being cultivated by the complainant for the last 20 years and an agreement between Bhajan Kaur and Bachan Kaur regarding exchange of land was arrived at but now Bhajan Kaur is not keeping her words regarding exchange of land and he had obtained an order of stay from the competent Court of jurisdiction. Bhajan Kaur's son Kewal Singh was asserting his possession over the land in dispute and was restraining the complainant party to cultivate the same. On Criminal Revision No. 1896 of 2006 5 19.5.1996 at about 5.0 P.M., the complainant along with his son Surinder Singh, Parminder Singh and Narinder Pal Singh, on his tractor make Mahindra D-275, had gone to plough the land. When Surinder Singh was driving the tractor and others were making ridges on the fields, then Balbir Singh armed with a kirpan, Kewal Singh son of Pritam Singh armed with a dang and Gindo alias Joginder Singh, Sukha and Jeeta armed with dangs arrived at the spot while raising lalkaras. They stopped the tractor. Balbir Singh gave a blow with his kirpan to Surinder Singh who was driving the tractor. To save himself, Surinder Singh raised his hand and the blow hit his right hand. The ring finger of his right hand was injured. Kewal Singh also gave a dang blow to Surinder Singh which hit on the ankle of his right leg. Surinder Singh alighted from the tractor. Gindo alias Joginder Singh, Jeeta and Sukha, accused, with their dangs, started breaking the tractor due to which its lights and silencer were damaged. Leaving the tractor in the fields, the complainant, along with his wife, brought Surinder Singh in injured condition to the Civil Hospital, Phagwara, where he was got admitted. As stated earlier, Surinder Singh had suffered two injuries, both of which were declared as grievous. Injury No.1 was incised wound in the right finger and injury No.2 was the blunt injury on the right ankle. Injury No.1 was attributed to Balbir Singh, whereas injury No.2 to Kewal Singh. To record acquittal of Balbir Singh for substantive offence under Section 326 IPC, the lower Appellate Court has held as under:- “15. As per MLR, of injury No.1 was incised wound on the terminal phalanx of right ring finger, Criminal Revision No. 1896 of 2006 6 while injury No.2 was on the lateral aspect of right lower leg near the ankle joint of Surinder Singh. Injury No.1 was caused with sharp edged weapon, while injury No.2 was caused with blunt weapon. PW.2 declared injury No.1 as grievous, without x-ray examination. The observations made by PW.2 with his naked eye cannot be accepted in the absence of x-ray examination of injury No.1. In the absence of x-ray examination, injury No.1 on the person of Surinder Singh has to be treated as simple injury. In this context, reference be made to State of Punjab Vs. Manga Singh and Anr. Case (supra) and Baldev Singh Vs. State of Punjab case (supra) which have been relied upon by the counsel for the appellants. Thus, injury No.1 which is attributed to Balbir Singh is to be considered as simple injury caused with sharp edged weapon on the person Surinder Singh. Injury No.2 which is attributed to appellant Kewal Singh was declared grievous in nature by PW.2 on the receipt of report of x-ray examination as is evident from Ex.PW.5/A and Ex.PW.2/C. The said injury was caused with blunt weapon. So it is fully proved that accused Balbir Singh committed an offence punishable u/s 324 IPC, while the remaining accused committed an offence punishable u/s 324 read with Section 149 IPC. It is also full proved that Criminal Revision No. 1896 of 2006 7 accused Kewal Singh committed an offence punishable u/s 235 read with Section 149 IP. The prosecution has failed to prove that the accused had committed an offence punishable u/s 326 IPC or u/s 326 read with Section 149 IPC.” I am not impressed by the findings given by the lower Appellate Court. PW.2 Dr. Kailash Kapoor has stated that bone ends of right ring finger of PW.4 Surinder Singh were visible, palpable and unnatural movement was present. In his cross-examination, this witness stated in categoric terms that he had not advised x-ray of injury No.1 as everything was clear from the said injury. A fracture is discernible on the clinical observation. Radiological examination is only to lend corroboration to the opinion of the doctor. In every case, it is not imperative that x-ray must be conducted. Be that as it may, since there is no appeal or revision regarding the findings, returned by the lower Appellate Court, regarding acquittal of the petitioners for the offence under Section 326 IPC, after 15 years this Court will refrain itself from examining this aspect. As stated earlier, the crucial issue, in the present case, is as to who was in possession of the land where the occurrence had taken place. PW.3 Gurmail Singh, in his cross-examination, has stated that “the fight took place in khasra Nos. 1136 and 1141”. Mr. Sudhir Sharma, Advocate, appearing for the petitioners, has placed reliance upon Ex.PW.6/D/1 to contend that the Investigating Officer, in the Daily Diary Register, had noticed that possession over the suit land was of the accused. On the observation made by this Court Criminal Revision No. 1896 of 2006 8 that how reliance can be placed upon the Daily Diary Register, as it only contains the opinion of the Investigating Officer, Mr. Sharma has submitted that even if Ex.PW.6/D/1 is ignored, there is sufficient material on the record to infer that the complainant was not in possession over the land in dispute. In the present case, occurrence had taken place on 19.5.1996. Bachan Kaur alias Bachni wife of Gurmail Singh, PW.3, on 9.11.1995 had instituted a suit Ex.DW.1/1 seeking issuance of permanent injunction against defendant No.3 Kewal Singh not to interfere in her possession. A prayer clause of the suit reveals that the same pertains to Khasra Nos. 1192 and 1162 and not to khasra Nos. 1136 and 1141. PW.3 Gurmail Singh, in his cross-examination, has stated that “it is correct that stay application under Order 39 Rules 1 and 2 read with Section 151 CPC of khasra Nos. 1136 and 1141 has been dismissed but the suit is still pending, later portion volunteered.” He has further admitted in his cross-examination that “it is correct that I have filed the application for correction of khasra girdawari of khasra Nos. 1141 and 1136 of the land situated at V. Parwa.” The orders passed by the Civil Court on the plaint have not been brought on record, but only a copy of plaint, during cross- examination, was handed over and marked as Mark X. In his examination-in-chief, PW.3 Gurmail Singh has placed on record a copy of stay order, which was marked as Mark A. Therefore, the prosecution has failed to place any document on record to prove that on the day of occurrence, any order of stay or ad interim injunction was in favour of Criminal Revision No. 1896 of 2006 9 the complainant or his family members. Furthermore, it is asserted in the FIR that mother of Kewal Singh had exchanged the land where the occurrence had taken place with the wife of complainant Gurmail Singh. No document to this effect has been brought or proved on record. Except a bald assertion that the complainant was in possession of the land in dispute, no documentary evidence, in the form of khasra girdawari and jamabandi, has been brought on record. Furthermore, as to when the prayer for permanent injunction was dismissed, there is nothing on record. That being so, stand of the complainant that on the day of occurrence, he along with his son had gone with the tractor to plough the fields is to be construed to hold that it is the complainant who had gone there, if not, to take possession but to assert his possession. However, the prosecution has proved on record a copy of the order dated 11.12.1995 Ex.PX pertaining to another suit, which was qua khasra No. 1141 wherein it is stated that status quo already granted is extended till 3.1.1996. A perusal of order Ex.PX reveals that the suit was filed on 22.11.1995 i.e. before the date of occurrence. In this suit, Bhajan Kaur, mother of Kewal Singh, has been impleaded as a party. This Court cannot ignore the fact that the accused, in their statements under Section 313 Cr.P.C., have not pleaded right of self-defence and they have not given any suggestion that in exercise of their right of self- defence, they had caused the injuries. That being so, this Court has to hold that both the sides have failed to prove their possession over the land in dispute. Having held that the possession has not been proved by either of the parties i.e. complainant or the accused, this Court can safely record a finding that both the parties were in litigation qua the land Criminal Revision No. 1896 of 2006 10 where the occurrence had taken place. In the present case, occurrence had taken place on 19.5.1996 at about 3.00 P.M., statement was made by PW.3 Gurmail Singh in Civil Hospital, Phagwara at 7.30 P.M. and the case was registered at Police Station Sadar, Phagwara, at 7.40 P.M. Admittedly, accused Jeeta son of Kewal Singh and Gindo alias Joginder Singh have caused no injury in the occurrence. The allegations against them is that they gave dang blows to the tractor and caused damage to it. No Mechanic has been examined regarding the damage caused to the tractor. Taking totality of circumstances into consideration, this Court is of the view that benefit of doubt, ought to flow to Jeeta and Gindo alias Joginder Singh. Hence, their revision petition is accepted. The conviction and sentence awarded upon them is aside and they are acquitted of the charges. So far as petitioners Kewal Singh and Balbir Singh are concerned, they have caused one injury each to PW.4 Surinder Singh which were declared as grievous. Their conviction is upheld. After taking into consideration the fact that the occurrence had taken place about 15 years ago and they have suffered a protracted trial, sentence of one year is reduced to that of nine months. However, the fine and default clause shall remain intact. Their revision petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge November 26, 2011 “DK”