Criminal Revision No. 660 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 660 of 2009 Date of Decision: 19.5.2009 Randhir Singh and Others …Petitioners Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. A.P.S. Deol, Senior Advocate with Mr. Davinder Bir Singh, Advocate for the petitioners. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) 12 persons of village Tole Majra who are petitioners before this Court in Criminal Revision No. 660 of 2009 were tried by the Court of the Judicial Magistrate Ist Class, Kharar, in case FIR No. 166 dated 1.11.1996 registered at Police Station Kharar, under Sections 326, 325. 324, 323, 506, 447, 148 & 149 IPC. Out of these 12 persons most of the petitioners belong to the family of three brothers namely Randhir Singh, Harbhajan Singh and Bahadur Singh. Randhir Singh, petitioner No.1 along with his three sons, namely Sukhbir Singh, Gagandeep Singh, & Sapinder Singh and Harbhajan Singh, petitioner No.2, along with his two sons namely Criminal Revision No. 660 of 2009 2 Gurinder Singh and Rajwinder Singh, have been arrayed as accused. Third brother Bahadur Singh and his son Parminder Singh are also accused along with Dev Singh, Manjit Singh, Roda Singh and Jagga Singh. The petitioners were convicted and sentenced as under:- a) All the accused/petitioners were sentenced to undergo rigorous imprisonment for six months each under Section 143 IPC. b) They were further sentenced to undergo rigorous imprisonment for one year each under Section 148 IPC. c) Accused/petitioner Randhir Singh was sentenced to undergo rigorous imprisonment for one year under Section 323 IPC and the remaining accused/petitioners were sentenced to undergo rigorous imprisonment for one year each under Section 323 read with Section 149 IPC. d) Accused/petitioner Sukhbir Singh was sentenced to undergo rigorous imprisonment for two years under Section 325 IPC and to pay a fine of Rs.500/-, in default whereof to further undergo rigorous imprisonment for 15 days. The remaining accused/petitioners were sentenced to undergo rigorous imprisonment for two years each under Section 325 read with Section 149 IPC and to pay a fine of Rs.500/-, in default whereof to further Criminal Revision No. 660 of 2009 3 undergo rigorous imprisonment for 15 days. e) Accused/petitioner Sukhbir Singh was sentenced to undergo rigorous imprisonment for one year under Section 324 IPC and the remaining accused/petitioners were sentenced to undergo rigorous imprisonment for one year each under Section 323 read with Section 149 IPC. f) Accused/petitioner Randhir Singh was sentenced to undergo rigorous imprisonment for three years under Section 326 IPC and to pay a fine of Rs.500/-, in default whereof to further undergo rigorous imprisonment for 15 days. The remaining accused/petitioners were sentenced to undergo rigorous imprisonment for two years each under Section 326 read with Section 149 IPC and to pay a fine of Rs.500/-, in default whereof to further undergo rigorous imprisonment for 15 days. The appeal filed by the appellants was dismissed by the Court of Additional Sessions Judge, Ropar. Mr. A.P.S. Deol, Senior Advocate, assisted by Mr. Davinder Bir Singh, Advocate, appearing for the petitioners, has raised the following arguments:- I) It is submitted that from the documents adduced by the defence, it is proved that petitioners were in possession of the land in dispute, hence, they have a right of self-defence to cause injuries to the Criminal Revision No. 660 of 2009 4 complainant party; ii) The possession of the accused/petitioners stand proved from the documents relied, therefore, the alleged cause of grudge to inflict injuries stand belied and, therefore, no credence ought to be given to the testimony of injured and other eye witnesses; iii) Harbhajan Singh, his two sons Gurinder Singh and Rajwinder Singh and Parminder Singh son of Bahadur Singh were not named in the FIR and they have been subsequently introduced, thus, they are entitled to benefit of doubt; iv) Gagandeep Singh, petitioner No.4, was juvenile at the time of occurrence and was entitled to be tried by Juvenile Justice Board and his trial by the Court of Judicial Magistrate Ist Class has resulted into illegality calling for vitiation of the trial qua him. To fortify these submissions, many ancillary arguments have also been pressed into service. Before these arguments are taken into consideration, it will be necessary to notice the brief facts of the case. To begin with, facts can be gathered from the FIR. FIR Ex. PW6/F was recorded on the statement of Nasib Singh son of Sadhu Singh, caste Saini, resident of village Magar, Police Station Kharar, District Ropar, aged 45 years. He has stated that he is resident of village Magar and is working as a Deed writer and do agricultural work. He, Amar Singh and Khushal Singh son of Gurdial Singh, resident of village Magar had purchased a land measuring 56 bighas & 10 biswas Criminal Revision No. 660 of 2009 5 from Niranjan Kaur wife of Harsaran Singh, her sons Sartaj Singh, & Dilraj Singh, daughters Surinder Kaur, Varinder Kaur, Jaswant Kaur and Kiran. The land was purchased in the year 1994. Half of the land was in his name and rest of the land was in the name of Amar Singh and Khushal Singh. A registered sale deed was executed in their favour. After the execution of the sale deed, they were in possession of the land and had sown the chari crop. Three brothers, namely Randhir Singh, Bahadur Singh & Harbhajan Singh and Parminder Singh son of Bahadur Singh along with tractors had ploughed the standing crop. Resultantly, a case FIR No. 94 dated 13.7.1996 was registered at the instance of complainant against the accused under Sections 447, 427, 148 & 149 IPC. Inspite of registration of ;the case, possession of the land remained with the complainant party, due to which Randhir Singh, his brothers Bahadur Singh and Harbhajan Singh started nursing a grudge against the complainant party and made efforts to take possession of the land. It was further stated in the FIR that complainant Nasib Singh, Amar Singh and Khushal Singh had sown paddy crop in the 8 killas of land. On the date of occurrence, at about 11.30 A.M., Nasib Singh, Khushal Singh, Gian Singh, Sadhu Singh father of complainant Nasib Singh, his tractor driver Gurbachan Singh had gone to plough the remaining land with their tractor. At about 12.15 PM Randhir Singh armed with gandasi, Sukhbir Singh armed with kirpan, Sapinder Singh armed with iron rod, Gagandeep Singh armed with lathi, sons of Randhir Singh, Manjit Singh son of Hari Singh, Majhabi, armed with lathi, Roda Singh son of Hari Singh armed with lathi, Jagga Singh son of Bachan Singh, Majhbi, armed with lathi, Dev Singh son of Sukha Criminal Revision No. 660 of 2009 6 Singh armed with iron rod along with 20-25 persons to whom complainant can identify in case they are brought before him, came to their fields. On coming, Randhir Singh raised lalkara “today they should not escape, they should be taught lesson for ploughing the field”. Randhir Singh gave a blow from gandasi in his hand. Nasib Singh raised his hand to save himself and the blow hit on the right wrist. Sukhbir Singh gave a kirpan blow which hit on the right ear of Nasib Singh. Thereafter, Randhir Singh gave a gandasi blow from reverse side which hit on the left thumb of Nasib Singh. Jagga Singh gave a blow from his lathi which hit on his right eye. Sukhbir Singh gave a kirpan blow from the reverse side which hit on the back of right ear. Sukhbir Singh gave another kirpan blow which hit on the left shoulder. Dev Singh gave three blows from iron rod in his hand which caused injuries on the right knee. Jagga Singh gave a lathi blow which hit on the ankle of left leg. Other two blows given by Dev Singh from iron rod landed on the right and left of the back. Then Khushal Singh came forward to rescue Nasib Singh. Then Sukhbir Singh gave a kirpan blow from the reverse side on the left eye of Khushal Singh. Sukhbir Singh caused another injury on his right leg. Randhir Singh also caused injury with gandasi on the left leg of Khushal Singh below the knee. Another injury was caused by Randhir Singh on right leg below the knee of Khushal Singh. Jagga Singh gave a blow on the left elbow of Khushal Singh. Gian Singh, third injured, was caused injury on his right arm by Manjit Singh. Roda Singh caused a lathi blow on the left ankle of Gian Singh. On the right knee of Gian Singh, Sukhbir Singh gave a kirpan blow. Sapinder Singh has given a lathi blow which hit on the little finger of right hand of Gian Singh. Sadhu Criminal Revision No. 660 of 2009 7 Singh fourth injured was caused injury on his left arm by Randhir Singh. Another blow was caused by Randhir Singh on the left knee of Sadhu Singh. On noise raised, Gurdial Singh and Gurmeet Singh were attracted at the spot. They saved the injured from the assailants. On their coming, accused decamped from the spot along with their weapons. Injured were got admitted to the hospital by Gurmeet Singh son of Ishar Singh. On basis of above said FIR, investigation was carried. On 31.10.1996, Khushal Singh vide Ex.PW8/K was declared fit to make statement. Similarly, Sadhu Singh was declared fit to make statement vide Ex.PW.8/M. Gian Singh was also declared fit to make statement by doctor vide opinion Ex.PW.8/N. During course of investigation, vide disclosure statement Ex.PW.7/A Randhir Singh got the gandasi recovered, Gagandeep Singh got recovered one lathi and two iron rods, Manjit Singh got the dang recovered, Sukhbir Singh got the kirpan recovered. Vide Ex.PW.7/N various documents which included sale deed and power of attorney were taken into possession by the Investigating Agency. Investigation was concluded. Report under Section 173 Cr.P.C. was submitted. All the accused were charged by the Court of the Judicial Magistrate Ist Class, Ropar on 3.7.1997. They were charged for offence under Sections 143 & 148 IPC. Randhir Singh was substantively charged for causing simple hurt to Sadhu Singh for offence under Section 323 IPC and others with the aid of Section 149 IPC. Criminal Revision No. 660 of 2009 8 Sukhbir Singh was charged for causing simple injury by incised weapon to Gian Singh for offence under Section 324 IPC and others with the aid of Section 149 IPC. Sukhbir Singh was also charged substantively for causing grievous hurt to Nasib Singh from the blunt side of kirpan under Section 325 IPC and others with the aid of Section 149 IPC. Randhir Singh was substantively charged for causing grievous hurt to Khushal Singh by incised weapon for an offence under Section 326 IPC and others with the aid of Section 149 IPC. All the accused pleaded not guilty and claimed trial. PW.8 Dr. H.S. Oberoy, who was then posted as Medical Officer, Civil Hospital, Kharar, examined Nasib Singh, on 31.10.1996 at 1.50 P.M. and found following following injuries on his person:- “1. IW 2.5 X .5 cm bone deep over dorsal aspect of right wrist underline swelling and bleeding present. Movements restricted. 2. Bruise 2 X 2 cm over ulnar part of right wrist, red in colour, underline swelling and tenderness. 3. LW 1 X 0.5 X 0.5 cm on dorsal aspect of right little finger. Bleeding present. 4. IW 2 X 0.5 X 0.5 on posterior surface of right pinna. 5. Abrasion 2 X 2 cm on the anterior surface of right pinna, red in colour. 6. Bruise 4 X 3 cm over left shoulder, red in colour, movements restricted. 7. Abrasion 9 X 1½ cm over front of right shoulder, red Criminal Revision No. 660 of 2009 9 in colour, swelling present. 8. Bruise 12 X 3 cm over outer aspect over right upper arm, red in colour, swelling and tenderness present. 9. Bruise 10 X 3 cm over outer aspect of right upper arm, red in colour, swelling and tenderness present. 10. Bruise 6 X 3 cm over outer aspect of lower left leg, red in colour, underline tenderness present. 11. Bruise 14 X 3 cm over right infra scapular region, red in colour. 12. Bruise 12 X 3 cm over left infra scapular region, red in colour”. PW.8 Dr.H.S. Oberoy also examined Gian Singh and found following injuries on his person:- “1. Bruise 10 X 6 cm over left forearm, red in colour, underline swelling and tenderness present. 2. Abrasion 5 X 3 cm over left forearm, red in colour, underline swelling and tenderness present. 3. LW 3 X 1 x 2.5 over front of left leg, bleeding and swelling present. 4. Abrasion 6 X 1.5 over left leg, red in colour, underline swelling and tenderness present. 5. IW 3 X 1 X 1.5 cm over right knee joint, red in colour, bleeding present. 6. IW 3 X 1.5 cm over anterior aspect of right hand at 5th MCP joint. Bleeding present. Movement restricted. Criminal Revision No. 660 of 2009 10 7. Abrasion 1 X 1 cm over dorsum of right little finger”. On person of Khushal Singh, following injuries were found:- “1. Bruise 5 X 4 cm bone deep over left cheek, bleeding and swelling present. 2. IW 1 X .5 cm bone deep over left cheek, bleeding and swelling present. 3. IW 1.5 X .5 cm bone deep over middle of right leg, bleeding and swelling present. 4. IW 1.5 X .5 cm bone deep over upper left leg, bleeding and swelling present. 5. IW 1 X 1 cm bone deep over left leg, bleeding and swelling present”. Sadhu Singh, father of Nasib Singh was also examined and following injuries were found on his person:- “1. Bruise 3 X 2 cm over dorsal aspect of left forearm, swelling and tenderness present. 2. Bruise 6 X 2 cm over front of left knee, red, underline, swelling and tenderness present. 3. Bruise 8 X 5 cm just above left joint, red, underline, swelling and tenderness present. 4. Bruise 4 X 3 cm over medial side of left knee, red, underline swelling and tenderness present. 5. Bruise 8 X 3 cm over right thigh, red in colour.” Prosecution examined PW.1 Dr. Gurmit Singh, Radiologist. On basis of his opinion, PW.8 Dr. H.S. Oberoy found all injuries on person of Gian Singh to be simple. Injury No.2 on person of Nasib Singh Criminal Revision No. 660 of 2009 11 which was on the right wrist was declared grievous. Similarly, injury No.4 suffered by Khushal Singh on the upper left leg was found grievous. All injuries suffered by Sadhu Singh were declared as simple. No meaningful cross-examination was advanced to the testimony of doctor who conducted medicolegal examination and the Radiologist. Mr. A.P.S. Deol, Senior Advocate, assisted by Mr. Davinder Bir Singh, Advocate, during the course of arguments has also not assailed nature of injuries. One of the argument advanced before the trial Court that medical evidence do not corroborate ocular version has not been raised before this Court. Nasib Singh, complainant, was examined by the prosecution as PW.2. Nasib Singh not only reiterated the version given in the FIR but also made an improvement and for the first time named Harbhajan Singh, his two sons namely Gurinder Singh & Rajwinder Singh and Parminder Singh son of Bahadur Singh as accused. In cross- examination accused present in the Court were not rightly named. In cross-examination, Nasib Singh admitted that he knew Harsaran Singh resident of Rasalheri. He had three brothers, two are residing in England and one at Kharar. He further stated that land in question used to be cultivated by Kharak Singh, brother of Harsaran Singh. He further admitted that accused Bahadur Singh was power of attorney of Harsaran Singh and Bahadur Singh is brother of Randhir Singh and Harbhajan Singh. He further admitted that regarding cancellation of power of attorney in favour of Bahadur Singh, no inquiry was made by him. He further admitted that Bahadur Singh used to look after the land of Harsaran Singh. Then he volunteered to say that Kharak Singh, Criminal Revision No. 660 of 2009 12 brother of Harsaran Singh used to cultivate the land. Harsaran Singh was staying in England for last 40 years. He admitted that two sons and wife of Harsaran Singh had filed a suit against Harsaran Singh, however, he pleaded his ignorance regarding the outcome of the suit and appeal filed thereupon. He also admitted that he had no knowledge whether appeal was withdrawn on the statement made and thereafter ex-parte mutation was granted. However, he has stated that as per jamabandi, land is in the names of successors of Harsaran Singh. In cross-examination he stated that Harpreet Kaur is not known to him, only Niranjan Kaur was known to him. He further stated that he had not seen decree of divorce granted by the United Kingdom, relied in a suit “Harpreet Kaur v. Niranjan Kaur”. He further stated that he has no knowledge regarding the case pending in the High Court. Litigation pending between Harpreet Kaur and Niranjan Kaur was also put to the witness. However, he has stated that it was incorrect that during the life time of Harsaran Singh land was looked after by Bahadur Singh and after his death Harpreet Kaur, widow of Harsaran Singh, on basis of registered will became owner in possession of the land and had given power of attorney to Randhir Singh. It will be pertinent to mention here that the fact that he had not named Harbhajan Singh, his sons Gurinder Singh & Rajwinder Singh and Parminder Singh son of Bahadur Singh in the FIR, was not put to the witness. The witness was not confronted with his statement on basis of which FIR was lodged. During the course of arguments, counsel for the petitioners was unable to explain this vital lapse on the part of the defence. Criminal Revision No. 660 of 2009 13 Khushal Singh, injured appeared as PW.3, he named all the petitioners as accused and stated that they all caused injuries. In cross- examination, Khushal Singh admitted that Niranjan Kaur was wife of Harsaran Singh. Harsaran Singh had died in England. He further stated that no crop was sown on the land for the last three/four years. Earlier, the land was cultivated by Kharak Singh, who was brother of Harsaran Singh. He further stated that he had taken possession of the land from Niranjan Kaur. Randhir Singh had never cultivated the land. He further stated that till 1996 khasra girdawaries were entered in the names of Harsaran Singh and Niranjan Kaur. “He further stated that at the time when the occurrence took place, nothing was sown in the land. It was lying vacant. He further stated that when they went to take possession, accused had given beating and the case is pending in the High Court”. This solitary line in cross-examination has been taken by counsel for the petitioners to build entire edifice of the defence that possession of the land was not with complainant party. PW.4 Gurdial Singh and PW.5 Gian Singh have corroborated the testimony of PW.2 Nasib Singh and PW.2 Khushal Singh. Kehar Singh, Assistant Sub Inspector, who had recorded the statement, on basis of which FIR was registered was examined as PW.6. Prosecution examined Harmesh Kumar as PW.7, to prove investigation carried by him and recovery of the weapons. As stated earlier, Dr. H.S. Oberoy has appeared as PW.8. Thereafter, statements of accused were recorded under Section 313 Cr.P.C. Criminal Revision No. 660 of 2009 14 They pleaded innocence and stated that they were falsely implicated. Mohinder Singh, DW.1, brought the summoned record from Khalsa Senior Secondary School, Kharar. He stated that on 30.10.1996 and 31.10.1996, Gagandeep Singh was present in the School. He proved attendance register as Ex.D8. He stated that attendance was marked twice in the School. DW.2 Col. Tarlochan Singh was examined to prove alibi of Harbhajan Singh accused. He stated that on 31.10.1996 a sale deed was executed by him which was attested by Harbhajan Singh as Lambardar. The sale deed has been exhibited as Ex.D7. Defence want to infer from the execution of sale deed Ex.D7 that at the time of occurrence Harbhajan Singh was not present at the spot. Defence has tendered into evidence copy Ex.D1 judgment given by the Judicial Magistrate Ist Class, Kharar, in case FIR No. 94 dated 13.7.1996 as Ex.D1. Counsel for the petitioners has read part of Ex. D1 wherein it is stated that the complainant party in the present case has failed to prove their possession over the land rather the Court of Judicial Magistrate Ist Class held that possession of Randhir Singh over the land was lawful. This part of portion of judgment Ex.D1 has been also reproduced in the grounds of revision. Ex.D2 was the power of attorney given by Harsaran Singh in favour of Bahadur Singh. This power of attorney was executed on 8.1.1990, Ex.D4 is the power of attorney given by Harpreet Kaur widow of Harsaran Singh in favour of Jagtar Singh. This power of attorney was Criminal Revision No. 660 of 2009 15 executed on 18.3.1994. On basis of Ex.D4, Jagtar Singh had executed power of attorney Ex.D5 in favour of Randhir Singh on 3.7.1996. Ex.D6 tendered into evidence is a copy of order passed by this Court in Regular Second Appeal No. 3663 of 1999. This regular second appeal was preferred by Harpreet Kaur widow of Harsaran Singh against Niranjan Kaur, another wife Harsaran Singh and children of Harsaran Singh from the womb of Niranjan Kaur. A perusal of Ex.D6 reveals that Regular Second Appeal No. 3663 of 1999 was admitted on 27.9.2000 and parties were ordered to maintain status quo regarding possession and alienation during pendency of the appeal. This Court has been called upon to determine possession over the land whether it belongs to accused/petitioners or to the complainant party. Relying upon grounds No.2 to 5 of the present revision petition, counsel for the petitioners has submitted that import of Ex.D1, judgment dated 7.2.2001 by the Judicial Magistrate Ist Class, Kharar, in earlier criminal litigation between the parties and effect of order passed by this Court in Regular Second Appeal No. 3663 of 1999 (Ex.D6) has not been considered by this Court. Case file of Regular Second Appeal No. 3663 of 1999 was requisitioned vide order dated 28.4.2009. Mr. A.P.S. Deol, Senior Advocate, assisted by Mr. Davinder Bir Singh, Advocate, has submitted that one Harsaran Singh was allegedly married with Niranjan Kaur and Niranjan Kaur from the loins of Harsaran Singh had given birth to two sons and four daughters. Niranjan Kaur allegedly obtained divorce. Niranjan Kaur and her children had filed a civil suit. The civil suit was not decreed. Therefore, Niranjan Kaur Criminal Revision No. 660 of 2009 16 and her children filed an appeal. In appeal, a statement was suffered on behalf of Harsaran Singh and disputed land in question along with possession as claimed came to Niranjan Kaur and her children. After obtaining divorce, Harsaran Singh had married Harpreet Kaur and had executed a will in favour of Harpreet Kaur. Harpreet Kaur had filed a suit for declaration. In the suit, Harpreet Kaur claimed that on basis of will executed by Harsaran Singh, she is lawful owner of the property and the revenue authorities had wrongly granted mutation of inheritance in favour of Niranjan Kaur and her two sons, namely Sartaj Singh and Dilraj Singh and the statement made on behalf of Harsaran Singh in appeal in the Court of the Additional District Judge is not binding upon her and Niranjan Kaur along with her two sons were not entitled to succeed to the estate of deceased Harsaran Singh. Complainant party claimed possession on behalf of sale deed executed by Niranjan Kaur and her