Crl.Rev. No.461 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev. No.461 of 2005 Date of Decision: 9.03.2011 Surinder Singh alias Happy ...Petitioner Vs. State of Punjab . ...Respondent AND Crl.Rev. No.522 of 2005 Harmesh Singh & Ors. ...Petitioners Vs. State of Punjab . ...Respondent BEFORE: HON'BLE MR.JUSTICE GURDEV SINGH Present: Mr.T.S.Sangha, Sr.Advocate, with Mr.Jagjit Singh Lalli, Advocate, for the petitioners. Ms.Gaggan Mohini, AAG., Punjab. --- 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.whether the judgment should be reported in the Digest. --- Gurdev Singh, J. (Oral) This order shall dispose of above said two Criminal Revision Crl.Rev. No.461 of 2005 2 Petitions bearing Nos.461 and 522 of 2005, as common question of law and facts are involved in these petitions and they have arisen out of common judgment. Petitioners/accused were charged for the offences under sections 323, 324, 325/149 and 148 of the Indian Penal Code. They were tried for those offences by the Judicial Magistrate Ist Class, Fatehgarh Sahib and were convicted for the same, vide judgment dated 10.01.2001 and were sentenced as under: Accused Harmesh Singh a) U/s 148 IPC To undergo R.I. for 6 months. b) U/s 326/149 IPC To undergo R.I. for two years. c) U/s 325 IPC To undergo R.I. for one year and to pay a fine of Rs.1000/- and in default of payment of fine to undergo further imprisonment for 15 days. d) U/s 324/149 IPC To undergo R.I. for one year. e) U/s 323 IPC To undergo R.I. for six months. f) U/s 323/149 IPC To undergo R.I. for six months. Accused Kesar Singh a) U/s 148 IPC To undergo R.I. for 6 months. b) U/s 326/149 IPC To undergo R.I. for two years. c) U/s 325/149 IPC To undergo R.I. for one year and to pay a fine of Rs.500/- and in default of payment of fine to undergo further imprisonment for Crl.Rev. No.461 of 2005 3 7 days. d) U/s 324/149 IPC To undergo R.I. for one year. e) U/s 323 IPC To undergo R.I. for six months. f) U/s 323/149 IPC To undergo R.I. for six months. Accused Lakhvir Singh a) U/s 148 IPC To undergo R.I. for 6 months. b) U/s 326/149 IPC To undergo R.I. for two years. c) U/s 325/149 IPC To undergo R.I. for one year and to pay a fine of Rs.500/- and in default of payment of fine to undergo further imprisonment for 7 days. d) U/s 324/149 IPC To undergo R.I. for one year. e) U/s 323 IPC To undergo R.I. for six months. f) U/s 323/149 IPC To undergo R.I. for six months. Accused Jagdish a) U/s 148 IPC To undergo R.I. for 6 months. b) U/s 326/149 IPC To undergo R.I. for two years. c) U/s 325/149 IPC To undergo R.I. for one year and to pay a fine of Rs.500/- and in default of payment of fine to undergo further imprisonment for 7 days. d) U/s 324/149 IPC To undergo R.I. for one year. e) U/s 323 IPC To undergo R.I. for six months. f) U/s 323/149 IPC To undergo R.I. for six months. Crl.Rev. No.461 of 2005 4 Accused Ajaib Singh a) U/s 148 IPC To undergo R.I. for 6 months. b) U/s 326/149 IPC To undergo R.I. for two years. c) U/s 325/149 IPC To undergo R.I. for one year and to pay a fine of Rs.500/- and in default of payment of fine to undergo further imprisonment for 7 days. d) U/s 324/149 IPC To undergo R.I. for one year. e) U/s 323 IPC To undergo R.I. for six months. f) U/s 323/149 IPC To undergo R.I. for six months. Accused Surinder Singh alias Happy a) U/s 148 IPC To undergo R.I. for 6 months. b) U/s 326/149 IPC To undergo R.I. for two years. c) U/s 325/149 IPC To undergo R.I. for one year and to pay a fine of Rs.500/- and in default of payment of fine to undergo further imprisonment for 7 days. d) U/s 324/149 IPC To undergo R.I. for one year. f) U/s 323/149 IPC To undergo R.I. for six months. Accused Gurmeet Singh is P.O.(Proclaimed Offender). Against that conviction and sentence they preferred an appeal but the same was dismissed by the learned Sessions Judge, Fatehgarh Sahib vide judgment dated 23.02.2005. Crl.Rev. No.461 of 2005 5 The above referred revision petitions have been preferred by them against that conviction and sentences. The prosecution case, in brief, is that the complainant Amar Singh PW 2 was resident of village Mirpur and was serving in Food Corporation of India. His son Ranjit Singh PW 5 and Bihari PW 3 wanted to take the land of Panchayat on lease but the accused party was planning to create hurdle in their way. On that ground accused were nursing a grudge against the complainant party. On 21.5.1993 at about 8.30 AM the complainant started from his house for going to his office. He found that Bihari and Gurmail Singh were going on their respective bicycles towards the canal. When they reached near the house of accused Harmesh, said Harmesh was present there who asked Bihari to stop. Thereafter he brought a dang from inside his house and gave a blow with the same which hit him on his neck and he fell down with his face downward. Second blow was given by Harmesh on his left shoulder. Meanwhile, accused Kesar Singh came there armed with a Dang who gave two blows with the same on the back of Bihari. Kesar Singh after throwing his bicycle ran towards the canal. When Bihari was raising alarm, Lakhbir Singh accused came there with a Dang and gave a blow with the same on his left arm. Ajaib Singh also came from the side of the village Mirpur armed with a Dang and gave 2/3 blows with the help thereof on the left leg of Bihari. When the complainant after putting his bicycle on the stand tried to save Bihari, Happy accused who was standing on the road, raised a Lalkara exhorting other accused not to spare them. At that time Ranjit Singh was coming from the side of Sangatpur village after doing the domestic work. Gurmit Singh came from Crl.Rev. No.461 of 2005 6 the side of village while armed with Gandasi and gave a blow with the help of his weapon on the right hand of Ranjit Singh. When Ranjit Singh tried to run away from the spot second blow was given by that accused on his head, as a result of which he fell down. Accused Jagdish came there armed with Dang and gave blows with the help thereof on his back and legs. After causing injuries all the accused went to their house. Injured were removed to Civil Hospital, where they were medico legally examined by Dr.Jaswant Singh PW 7, who found eight injuries each on the person of Bihari and Ranjit Singh. From the hospital intimation was sent to the police about the admission of the injured. On receipt of the information Bakshish Singh ASI PW 4 came to the hospital and recorded statement of the complainant, Ex.PB. After making his endorsement Ex.PB/1 upon the same he sent that to the police station on the basis of which FIR Ex.PA was recorded against the accused under sections 323, 324, 326/34 IPC. He went to the place of occurrence and after inspecting the spot prepared rough site plan Ex.PW 4/A with correct marginal notes. Injuries on the person of the injured were subjected to radiological examination which was conducted by Chhagan Lal PW 6, who detected fracture in left scapular region of Bihari Singh. After the receipt of X-ray report, injury No.2 on the person of Bihari Singh was declared as grievous by Dr.Jaswant Singh, who had already declared injury No.1 on the person of Ranjit Singh as grievous. In the course of investigation accused were arrested and after completion thereof, challan was put in before the Judicial Magistrate, who found sufficient grounds for presuming that the accused committed offences punishable under sections 323, 324, 325, 326/149 and 148 IPC. They were charged Crl.Rev. No.461 of 2005 7 accordingly, to which they pleaded not guilty and claimed trial. To bring home the guilt of the accused prosecution examined Ram Dial Singh ASI PW1, Amar Singh PW 2, PW 3 Bihari Singh, Bakshish Singh PW 4, Ranjit Singh PW 5, Dr.Chhagan Lal PW 6, Dr.Jaswant Singh PW 7and Dr.Vidhur Bhalla PW 8. After the prosecution closed its evidence, the accused were examined and their statements were recorded under section 313 Cr.PC. Incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. It was stated by Ajaib Singh accused that he was not present at the time of occurrence. Lakhbir Singh accused stated that at the time of occurrence he was present in the fields of Harvinder Sarpanch situated in village Sangatpura Sodian as he was driver on his Combine for the last 20 years. Kesar Singh accused stated that he is not residing in village Mirpur from the last 2-3 years since the day of occurrence and was residing in the house of Surjit Singh, situated in Sirhind and he was not present at the time of occurrence. According to Surinder Singh accused, his brother Harvinder Singh defeated the candidate of the complainant party; named, Satwant Singh in the panchayat election and his brother got vacated the land of Panchayat from the complainant party and on that ground he has been falsely implicated. Accused were called upon to enter upon their defence but they did not produce any evidence in their defence. I have heard learned counsel for both sides. Crl.Rev. No.461 of 2005 8 It has been submitted by the learned counsel for the petitioners/accused that the presence of Surinder Singh accused at the time of occurrence is highly improbable as he was not resident of this village and the complainant party had a motive to falsely implicate him being the brother of Sarpanch of their village; who was on inimical terms with the complainant party. Moreover, prosecution witnesses made improvements in their statements so far as this accused is concerned by deposing to the effect that he had exhorted other accused not to spare Ranjit Singh which fact was never stated by them during the investigation when their statements were recorded under section 161 Cr.PC. Therefore, this accused is entitled to acquittal. He further submitted that some of the accused have already undergone sentences of imprisonment from 3 months of 5 months and there is little possibility of injuries falling under section 326 IPC, having been received in the manner alleged by the prosecution. According to learned counsel for the accused/petitioners interest of justice will be met in case sentence of imprisonment so imposed upon the accused is reduced. Learned State Counsel tried to controvert the submissions of the counsel for the accused/petitioners by contending that there is sufficient evidence on record for proving that Surinder Singh was a member of unlawful assembly in the prosecution of the common object of which the simple and grievous injuries were caused. No such improvement was made by the prosecution witnesses in the court and there was motive on his part to be with other accused. There is no ground for reducing the sentence so imposed upon the accused. Re-appreciation and reappraisal of evidence, while exercising Crl.Rev. No.461 of 2005 9 revisional jurisdiction, is not permissible unless the court comes to the conclusion that the findings recorded by the trial court/appellate court are perverse, illegal or are based on misreading of evidence. No illegality was committed either by the trial court or appellate court while placing reliance on the evidence so produced by the prosecution for convicting and sentencing the accused/petitioners on the basis thereof. The prosecution evidence in the shape of statement of Amar Singh PW 2 is convincing and trustworthy. His statement was corroborated by Bihari Singh PW 3 and Ranjit Singh PW 5, who were given the injuries in this occurrence. Nothing crept in during their cross-examination which could make their statement unworthy of belief. That ocular evidence is further corroborated by the medical evidence furnished by the statement of Dr.Jaswant Singh PW 7, who medically examined the injured and Dr.Chhagan Lal PW 8 Radiologist, who conducted the radiological examination. No doubt, it was admitted by Dr.Jaswant Singh PW 7 during his cross-examination that if Gandasi blow is given it is not possible to injure only little finger and in that case there must be injuries on the other fingers also and no such injuries were found on the adjoining fingers of Ranjit Singh. However, in view of the trustworthy ocular evidence produced by the prosecution that opinion of the doctor loses its significance. It depends upon the position of the fingers of the injured at the time the blow with Gandasi was given to him. As already said the appreciation of evidence is not permissible in this revision. Sequence in which the injuries were caused by the accused Crl.Rev. No.461 of 2005 10 makes it very much doubtful if the accused formed an unlawful assembly or that the injuries were so caused in the prosecution of the common object of said assembly. It is the statement of the complainant that accused had come to the spot and caused injuries one after the other. There was no meeting of mind of the accused during the period injuries were given to Bihari Singh. It is not the prosecution version that Ranjit Singh was already present at the spot. He suddenly appeared on the scene and thereafter injuries were caused to him. There is force in the argument of the counsel for the accused that improvements have been made by the prosecution witnesses while making their statements in the court to the effect that Surinder Singh accused had raised a Lalkara that Ranjit Singh be not spared. Neither the complainant Amar Singh PW 2 stated in his statement Ex.PB made before the police nor the other injured witnesses deposed about that fact while their statements were recorded under section 161 Cr.PC. They had only stated that Surinder Singh had raised Lalkara not to spare them. No reliance can be placed on this improvement made by them in the court. However, the fact remains that injuries were caused by Gurmit Singh and Jagdish to Ranjit Singh after this accused exhorted the other accused not to spare the complainant party. Thus this accused instigated those accused to cause simple and grievous hurt. Therefore, he committed the offence of abetment. In these circumstances each of the accused is liable for the injury caused by them and they cannot be made liable for the injuries caused by the other accused by resorting the provisions of sections 149 IPC. There was no question of any such vicarious liability. Each of the accused was to be convicted for the offence committed by him. As there was no unlawful Crl.Rev. No.461 of 2005 11 assembly so there was no question of the accused having committed offence under section 148 IPC and, accordingly, they are acquitted of that offence. In view of the above discussion the order of conviction passed by the learned trial court and upheld by the appellate court is set aside. The accused are convicted as under: Sr. No. Name of accused Conviction under Sections 1 Harmesh Singh 323 and 325 of Indian Penal Code 2 Kesar Singh 323 of Indian Penal Code 3 Lakhbir Singh 323 of Indian Penal Code 4 Jagdish 323 of Indian Penal Code 5 Ajaib Singh 323 of Indian Penal Code 6 Surinder Singh alias Happy 323 and 326 read with section 109 of Indian Penal Code Coming to the quantum of sentence State Counsel has not denied the fact that the accused have already undergone three months to five months of imprisonment and that they stood protracted trial for all these years. In view of the modification of the conviction the sentence is to be imposed for the offences for which the accused have been convicted. The following sentences are imposed after taking into consideration the said submissions of the learned counsel for the accused: Crl.Rev. No.461 of 2005 12 Sr. No. Name of accused Sections Sentence of imprisonment Fine In default 1 Harmesh Singh 323 IPC 325 IPC R.I. for three months RI for 6 months -- Rs.1000- - To undergo further imprisonment for 15 days 2 Kesar Singh 323 IPC R.I. for three months - - 3 Lakhbir Singh 323 IPC R.I. for three months - - 4 Jagdish 323 IPC R.I. for three months - - 5 Ajaib Singh 323 IPC R.I. for three months - - 6 Surinder Singh alias Happy 323 IPC 326/109 IPC R.I. for three months R.I. for one year. - - All these sentences of imprisonment shall run concurrently. The period during which the accused were in detention in connection with the present FIR shall be set off against those sentences, as provided by Section 428 of Cr.PC. The revision petitions are disposed of accordingly. The accused be taken i n custody for undergoing the balance sentence of imprisonment. Records of trial court be returned forthwith. (Gurdev Singh) 09.03.2011 Judge rp