Criminal Appeal No. 320-SB of 1997 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Appeal No. 320-SB of 1997 Date of Decision: 22.4.2008 Gulzar Singh and Others …Appellants Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Bipan Ghai, Senior Advocate with Mr. Sandeep Gehlot, Advocate for the appellants. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. Criminal Appeal No. 320-SB of 1997 was filed by Gulzar Singh son of Bahadur Singh and Randhir Singh son of Gulzar Singh, both residents of village Nathu Chak, Tehsil Patti, District Amritsar. Mr. Bipan Ghai, learned senior counsel for the appellants, made a statement that Gulzar Singh, appellant had expired on 27.1.2005 and copy of death certificate was furnished. Learned counsel for the State was asked to verify the fact of death of appellant Gulzar Singh on 25.1.2008. Statement of Mr. Mehardeep Singh, learned Assistant Advocate General, Punjab, has been recorded that Gulzar Singh had died and this Court ordered that appeal qua him shall abate. Criminal Appeal No. 320-SB of 1997 2 However, the present appeal survives only qua Randhir Singh son of Gulzar Singh. Appellant Randhir Singh along with his father Gulzar Singh was nominated as accused in case FIR No. 41 dated 23.5.1994 registered at Police Station Patti under Sections 307, 325, 324,, 452 read with Section 34 IPC. Both the appellants were convicted and sentenced by the Court of learned Additional Sessions Judge, Amritsar as under:- “...Accordingly, accused Gulzar Singh is sentence to undergo R.I. for five years and to pay fine of Rs.200/- under Section 307 IPC. In default of payment of fine, he shall further undergo R.I. for three months. He is further sentenced to undergo R.I. for one year and to pay fine of Rs.100/- U/S 325 read with Section 34 IPC. In default of payment of fine to further undergo R.I. for one month. Randhir Singh convict is sentenced to undergo R.I. for five years and to pay fine of Rs.200/- under Section 307 read with Section 34 IPC. In default of payment of fine to undergo R.I. for further three months. He is further sentenced to undergo R.I. for one year and to pay fine of Rs.100/- under Section 325 IPC. In default of payment of fine to further undergo R.I. for one month. All the sentences shall run concurrently. File be consigned to the record room”. Aggrieved against the judgment of conviction and order of Criminal Appeal No. 320-SB of 1997 3 sentence, the present appeal was filed. The present FIR was recorded on the statement of Kala Singh. Kala Singh made statement Ex.PD on 23.5.1994 before Avtar Singh, Assistant Sub Inspector. It was stated by Kala Singh that they are two brothers and both are residing with their father Piara Singh and do agriculture work. On the day of occurrence at about 8.30 A.M. he along with his father and brother was present in their house and was cleaning the courtyard. At that time his uncle Gulzar Singh armed with kirpan and his son Randhir Singh armed with dang came there and they were giving abuses. Gulzar Singh at that time by giving abuses stated that Piara Singh will be finished. At that time, Piara Singh ran towards his house then Gulzar Singh gave a kirpan blow, which hit on his head. Piara Singh had fallen. At that time Randhir Singh gave an injury of dang to Piara Singh and he also gave another two blows which hit Piara Singh. On the noise raised by his brother and mother, both the accused decamped from the spot by giving injuries. The cause of grudge is stated that there was partition of house between his father Piara Singh and Gulzar Singh and courtyard had fallen to the share of his father Piara Singh. The above said FIR was investigated and the report under section 173 Cr.P.C. was submitted. Prosecution examined PW.1 Rishi Ram, Draftsman, who prepared the scaled site plan. PW.2 Dr. Sham Lal Gupta examined Piara Singh on 22.5.1994 at 10.30 A.M. and found following injuries on his person:- “1. Incised wound 10 X 1.5 cm into bone deep Criminal Appeal No. 320-SB of 1997 4 on right pariteal region of scalp, wound was bleeding, blood pressure 90/60 per minute, pulse 110 per minute, feeble low volume, patient was shock. Intervence flewed threty given Advised X-ray examination; 2. Defuse swelling 7 cm X 5 cm on left side lateral aspect, left chest lower chest, creptious, underlying bone was fractured. Patient complaint of pain on referation and palpation; 3. Redish contusion 6 cm X 2 cm on right forearm lower 1/3rd part. Advised X-ray examination; and 4. Defused swelling 2 X 3 cm back lumber region. Nature of Injuries : - Injury No.1 and 3 were kept under observation. Injury No.2 was grievous and No.4 was simple. Probable duration of injuries was within 6 hours. Kind of weapon used for injury no.1 by sharp edged, others by blunt weapon”. After radiological examination, injury No.1 was declared as dangerous to life and injury No.2 was declared as grievous and injury No.3 was declared as simple. On the same day, in the evening, Paramjit Kaur was examined and an abrasion was found on her person. She is the sister of the appellant. It will be pertinent to mention here that Criminal Appeal No. 320-SB of 1997 5 she was examined at 6.30 P.M., whereas the complainant was examined at 10.30 A.M. in the morning. Kala Singh, complainant, appeared as PW.3, and he reiterated the version given in the FIR. PW.3/A Raghbir Singh is brother of Kala Singh, complainant, who corroborated his testimony. Piara Singh, injured, himself appeared as PW.4. PW.5 Avtar Singh, Assistant Sub Inspector, had recorded the statement of Kala Singh, complainant, Ex. PD and on the basis of which FIR Ex.PD/1 was recorded. He also investigated the case. PW.6 Kirpal Singh, Head Constable, had deposited the clothes of the injured in the office of Chemical Examiner. PW.7 Som Nath, Constable, had also deposited the weapon of offence in the office of Chemical Examiner. Thereafter, prosecution evidence was closed. The entire incriminating circumstances were put to the accused. Appellant Gulzar Singh has stated that Piara Singh had come to his house and caused injuries to his daughter Paramjit Kaur and on provocation in self-defence, he caused injuries to him. Paramjit Kaur appeared as DW.1 and stated that she was given kick blows by Piara Singh and his father Gulzar Singh came at the spot and in order to save her, he caused injuries to Piara Singh. Mr. Ghai appearing for the appellants has contended that it has come in evidence that Paramjit Kaur had suffered injuries in her abdomen and she was pregnant of 6 months . He has stated that there Criminal Appeal No. 320-SB of 1997 6 was a dispute between the parties regarding partition and courtyard had fallen to the share of Piara Singh, injured. Therefore, Mr. Ghai has contended that in the present case Section 34 IPC cannot be attracted as occurrence at the most can be stated to be sudden fight. I am afraid that this contention of Mr. Ghai cannot be accepted. The injured Piara Singh was examined in the morning on 22.5.1994 at 10.30 A.M., whereas Paramjit Kaur was examined in the evening at 6.30 P.M. There was a linear abrasion of 5 cm on the right abdomen. Had the injury caused in the morning and Paramjit Kaur was pregnant of six months, the first and foremost concern of the accused party is to take her to the hospital and get her admitted. The occurrence had taken place in the morning , whereas she was taken to the hospital in the evening after about eight hours. Therefore, Paramjit Kaur had not suffered injuries in the occurrence. It has come in the ocular evidence that even though there is a dispute regarding the partition, the occurrence has taken in the courtyard. Prosecution story is that accused came there armed with weapons, and exhortation was raised by Gulzar Singh upon which Piara Singh had attempted to run towards his house. He was chased inside the house of Piara Singh and appellant Randhir Singh repeated two blows. Therefore, the occurrence cannot be said to be sudden fight and Section 34 IPC is attracted. However, Mr. Ghai in the alternate has stated that in the present case occurrence took place in the year 1994 and the parties are closely related. The injured was uncle of the present appellant. Furthermore, accused and the complainant are also neighbourers as the same house has been partitioned. Mr. Ghai further contended that in Criminal Appeal No. 320-SB of 1997 7 case the petitioner is sent behind the bars after 14 years, the peace which is prevailing between the parties in the village is likely to be disturbed and may erupt any other incident. He has further stated that the appellant is ready and willing to compensate the victim. It has been further urged that after the death of father of appellant, relation between the parties are amicable and in the last 14 years, except the present occurrence, no other incident has taken place. Mr. Ghai further contended that the appellant has undergone about two months. Gulzar Singh, author of the injury, which was declared dangerous to life has already died. Taking the totality of the circumstances into view, sentence of the appellant is reduced to already undergone, however, the sentence of fine is enhanced to Rs.50,000/-. In case the fine is deposited within two months, the sentence of appellant is reduced to already undergone. The sentence of fine, if deposited, shall be disbursed to injured Piara Singh. Non deposit of fine will not entitle the appellant to reduction in sentence. With these modifications regarding quantum of sentence, appeal is disposed off. (Kanwaljit Singh Ahluwalia) Judge April 22, 2008 “DK”