Crl. Appeal No.374 SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.374 SB of 1998 Date of Decision: 9.3.2009 Surjit Singh and another …Appellants Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: None for the appellants Mr.T.S. Salana, Deputy Advocate General, Punjab ** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/order of sentence dated 24.4.1998 rendered by the Court of learned Additional Sessions Judge, Ludhiana whereby he convicted and sentenced accused Jaswant Singh to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.500/- and in default of payment of the same, to further undergo rigorous imprisonment for six months under Section 307 of IPC and also sentenced him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.500/- and in default of payment of fine, to further undergo rigorous imprisonment for 3 months under Section 326 of IPC and also sentenced his co-accused Surjit Singh to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.500/- and in default of payment thereof, to further Crl. Appeal No.374 SB of 1998 2 undergo rigorous imprisonment for 6 months under Section 307 read with Section 34 of IPC and further sentenced him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.500/- and in default of payment of fine, to further undergo rigorous imprisonment for 3 months under Section 326 read with Section 34 of IPC, with further direction that the substantive sentences of both the accused shall run concurrently. The factual matrix is that on 13.4.1996, Jit Singh complainant made statement before ASI Darshan Mal stating that he is resident of Village Barundi. He has been operating the truck for the last 9/10 years. He had employed Sukhwinder Singh son of Surjit Singh on his truck as driver as well as cleaner for the last 5/6 years. His service was terminated 2 months prior to the occurrence. On 12.4.1996 around 8.30 P.M., Sukhwinder Singh came to his house and went away at about 9 P.M. Around 10.30 P.M. the accused Surjit Singh, father of said Sukhwinder Singh alongwith accused Jaswant Singh, who was also known to him, came to him in a truck bearing registration No.DL-1G-9381 owned by Jaswant Singh, who was driving the truck, in which his co-accused Surjit Singh was sitting. On hearing the horn, he as well as his sons namely Harpal Singh and Mukhtiar Singh came out of the house. The accused Surjit Singh inquired about his son Sukhwinder Singh and he was told by Harpal Singh injured that Sukhwinder Singh had gone away to village Johlan at about 9 P.M. after having a dinner. The accused Surjit Singh threatened that they (referring to the complainant party) have concealed his physical presence in their house. On this, he asked accused Surjit Singh to come in and check up himself. Both the accused started hurling abuses, while sitting in the truck. Crl. Appeal No.374 SB of 1998 3 On hearing noise, Gurdev Singh son of Jeon Singh and Charan Singh son of Kartar Sigh were attracted to that place. Accused Jaswant Singh asked Harpal Singh injured to come to the truck. The latter boarded the truck from the side of Surjit Singh. The former started the truck at a very slow speed being followed by the complainant and the other persons, who asked them to stop the truck. When the truck reached in front of the house of Harnek Singh by covering a distance of 20/25 karams, then within their (referring to the complainant party) full view, Surjit Singh pushed down Harpal Singh through the window of the truck and called upon Jaswant Singh in a loud voice to pass the rear tyre of the truck on Harpal Singh. Accused Jaswant Singh after doing so, sped away the truck. The hind tyre of conductor side of the truck crushed over both the feet of Harpal Singh. Meanwhile, number of residents of the village amassed at the place of occurrence. When checked, both the feet of Harpal Singh were found crushed. Besides this, he had sustained injuries on his hip joint. He and his son Mukhtiar Singh removed Harpal Singh in injured condition to the Hospital of Makhan situated in Mandi Ahmedgarh. When they were on their way to the hospital, they found the same truck of Jaswant Singh lay turned turtle near village Latala. The motive behind the occurrence was that he (complainant) had dispensed with the service of Surkhwinder Singh. The accused were arrested. On completion of investigation, the charge-sheet was laid in the court of learned Illaqa Magistrate, who committed the same to the court of Sessions for trial of the accused. On commitment, the accused were charged under Sections 326, 307 read with Section 34 of IPC, to which they did not plead guilty and Crl. Appeal No.374 SB of 1998 4 claimed trial. In order to substantiate its allegations, the prosecution has examined Dr.Rajnish Sharma PW-1, Harminder Singh PW-2, Dr.Yogesh Jindal PW-3, Jit Singh PW-4, Gurdev Singh PW-5, Harpal Singh PW-6, ASI Darshan Mal PW-7, Iqbal Mohmad PW-8 and closed its evidence. When examined under Section 313 Cr.P.C., both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them. Accused Surjit Singh put-forth that “he had gone to the house of the complainant to inquire about his son, where he was assaulted. When he tried to escape in his truck, Harpal Singh and his associates tried to board the truck and Harpal Singh fell down and received injuries. He (Surjit Singh ) was admitted in a Primary Health Centre, Pakhowal.” His co-accused Jaswant Singh has also pleaded false implication as well as innocence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on the record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved with their conviction /order of sentence, they have preferred this appeal. None has come forwarded to argue on behalf of the appellants. I have heard the learned counsel for the State, besides perusing the record with due care and circumspection. The first ground taken in the grounds of appeal is that defence put up by the accused is that Harpal Singh and his family had an altercation with Surjit Singh accused and when Surjit Singh tried to ran away from the spot, Harpal Singh tried to board the truck and he had fallen down while boarding the moving truck. On comparing the versions, the defence version Crl. Appeal No.374 SB of 1998 5 is more probable because there is no crushed injury on the bone of Harpal Singh. Thus, the rear tyre of the truck had not passed over his feet. Pelvis bone of the injured would have got fractured by fall from moving vehicle. Merely, driving of truck has been attributed to Jaswant Singh. So, he could not be convicted for causing any injury. As alleged by the prosecution, the truck was moving at a slow speed and that being so, the intention to kill cannot be attributed to Surjit Singh accused. To controvert these submissions, Mr.T.S. Salana, Deputy Advocate General, Punjab maintained that on evaluating the ocular evidence coupled with the medical evidence, no holes can be picked in the impugned judgment. I have well considered this submission. Harpal Singh injured has stated in the following terms: “We own three trucks and I am a driver on my own truck. We employed Sukhwinder Singh as conductor and then as a driver on my truck. He worked with us for 4/5 years and got engaged Sukhwinder Singh with the daughter of maternal uncle of my wife. He was removed from service 1 ½ months prior to the occurrence. On 12.4.96, at about 10 p.m. I, Mukhtiar Singh, my brother and my father were present in our house. Jaswant Singh brought a truck and started blowing a horn. They came in a truck No. DL-1G-9386 owned by Jaswant Singh. On hearing the alarm, I, my father Jit Singh and Mukhtiar Singh came out of the house and saw Surjit Singh and Jaswant Crl. Appeal No.374 SB of 1998 6 Singh in a truck. I knew both of them. Surjit Singh asked that his son has concealed his presence in our house. My father told him that he was not in the house and if still he had suspicion, he could conduct search in the house. Jaswant Singh asked me to tell him about him after coming in the truck. I went and sat in the truck. Gurdev Singh and Charan Singh also came there. Truck was driven by Jaswant Singh. They started the truck at a very low speed. They were asked to stop the truck but they did not. My father, brother, Gurdev Singh and Charan Singh started following me. When we covered a distance of 20/25 karams and reached near the house of Harnek Singh and Gurdev Singh, then Surjit Singh pushed me out of the truck and I fell down on the ground. Surjit Singh asked Jaswant Singh to pass the vehicle over me. Then Jaswant Singh passed the truck over me. I became unconscious. I got conscious on 17.4.96. I suffered injuries on the hip joint and leg. My statement was recorded.” It is in his cross-examination that “we got suspicion regarding theft by Sukhwinder Singh and on that account, he was removed from service.” In his statutory statement Surjit Singh has pleaded that “ I tried to escape in my truck. Harpal Singh injured and his associates tried to board the truck, in order to stop us and he fell down and received injuries.” Thus, one thing is clear that Harpal Singh injured sustained injuries in the stated Crl. Appeal No.374 SB of 1998 7 manner. Surjit Singh accused has also come up with the plea that he (Surjit Singh ) was admitted in Primary Health Centre, Pakhowal. In support of this plea, he has not adduced any evidence either oral or in the nature of medical evidence. If he remained hospitalized in the aforesaid Primary Health Centre, by all probabilities, he would have summoned and examined the doctor, who had treated him. There being no such evidence, his version remains in the air. On the face of his plea, Harpal Singh and his associates had attempted to board the truck in order to stop it. If it had been so, not only Harpal Singh but the others, who had also made an endeavour to stop the truck would have also sustained injuries by fall in the alleged manner. But to the utter dismay of the accused, there is no such evidence. Thus, to say the least of it, the defence version is found improbable. It has nowhere been suggested to Harpal Singh (sic) that services of Sukhwinder Singh were dispensed with because of his having committed theft. As such, the reasoning given by this witness for removing Sukhwinder from service sounds convincing. This may be the motive for the accused to take revenge from the complainant party. A glance through the cross-examination of Harpal Singh injured would reveal that his testimony could not be impeached in any manner in his cross-examination. In other words, his evidence is impeccable as he could not be shattered or shaken, rather stood like a rock. His testimony is fortified by Jit Singh PW and Gurdev Singh PW. Their evidence being unshaky can be relied upon without any demur. Dr.Yougesh Jindal PW3 has stated in the following terms: “On 22.4.96, I was working as Registrar in D.M.C. Hospital, Ludhiana. On that day, I examined patient Crl. Appeal No.374 SB of 1998 8 Harpal Singh son of Jit Singh, C.R.No.71083. I gave my opinion Ex.PW3/A to the police regarding nature of injuries on the person of Harpal Singh. The abdominal injury which was intraperitoneal bladder ruptured which is dangerous to life and associated injuries of fracture pelvis is grievous. On 27.5.96, ASI Darshan Mal moved an application before me regarding clarification of mode of injuries on the person of Harpal Singh and I certified that it was possible to sustain such injuries in the run over trauma by truck and the injury is blunt in nature. My opinion is Ex.PW3/B.” In his cross-examination, he has testified that “The injuries on the person of Harpal Singh could not have been caused simply by falling by trying to catch up bus or truck.” This evidence too belies the plea taken up by the accused. It is also in his cross-examination that “the operation of the patient (referring to Harpal Singh) as per record was conducted by the team of doctors namely Dr.Jaspal Singh, Dr.Mukesh Bansal, Dr.Brun Saggar and Dr.Charanjeev on 13.4.1996 at 6.15 p.m. As examined by Orthopaedic doctor there are multiple injuries in the limbs of the patient.” This evidence as also the medical evidence given by Dr.Rajnish Sharma PW1 coupled with the ocular account tendered by the aforesaid prosecution witnesses go a long way in establishing the charged offences. Surjit Singh had caused injuries to the injured Harpal Singh by throwing him down from the moving truck by giving a forceful push. It is the specific version of the injured Harpal Singh that he suffered injuries on his hip joint and legs. It is in the Crl. Appeal No.374 SB of 1998 9 evidence of Dr.Yogesh Jindal (sic) that “the abdominal injury which was intraperitoneal bladder ruptured which is dangerous to life and associated injuries of fracture pelvis is grievous.” This medical evidence co-relates with the ocular account. If Jaswant Singh accused did not intend to share the common intention with his co-accused, he would have stopped his co- accused from pushing out Harpal Singh from the moving truck. More to the point, the taking of his co-accused in his own truck to the house of the complainant party ipso facto go a long way in proving that he had shared the common intention of his co-accused. If he was not to share such intention, he would have stopped his co-accused Surjit Singh from taking Harpal Singh injured along. The taking of the injured along by both the accused in the truck and then pushing him out of the same adequately evinces the common intention. Consequently, the conviction of both the accused is affirmed. As per the custody certificate Jaswant Singh accused/appellant has undergone 2 years and 6 days of the actual sentence, whereas Surjit Singh accused /appellant has undergone 2 years and 1 day of the actual sentence. The accused/appellants have been facing the agony of trial since 1996, meaning thereby, this incidence is more than 12 years old. There is nothing on record to show that since the date of their release on bail by this Court, they have committed any offence. Taking into consideration the entirety of facts and circumstances of the case, the substantive sentence of both the accused is reduced to the already undergone. However, the fine inflicted upon each of the accused/appellant is enhanced to Rs.20,000/-. The remaining amount of fine shall be deposited by the accused/appellants Crl. Appeal No.374 SB of 1998 10 within 3 months. Inasmuch as, none has appeared on their behalf, so the trial court shall issue notice to the appellants, calling upon them to deposit the amount of fine within three months from the date of receipt of such notice. On deposit or realization of the abovementioned amount of fine, it will be disbursed to Harpal Singh injured. In the event of failure to deposit this amount within the aforesaid period, the defaulter shall undergo rigorous imprisonment for one year. With this modification in the order of sentence, this appeal fails and is dismissed. The Registry is directed to transmit a copy of the judgment to the court of learned trial Court, which on receipt of the same shall issue notice as noticed supra. If the appellants fail to deposit, the said amount during the said period, the intimation shall be sent to the learned Chief Judicial Magistrate, Ludhiana, who will take necessary steps to send the defaulter to the prison for serving the aforementioned period of sentence of one year. 9.3.2009 (HARBANS LAL) gsv JUDGE Whether to be referred to the Reporter? Yes/No.