Crl. Appeal No. 1623-SBA of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No.1623-SBA of 2006 Date of Decision : February 20, 2009 Balwant Singh .... Appellant Vs. State of Punjab and others .... Respondents CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashok Giri, Advocate for the appellant. Mr. S. S. Gill, Addl. A. G., Punjab. Mr. J. S. Bedi, Advocate for the complainant. * * * L. N. MITTAL, J. : Complainant Balwant Singh has filed this appeal to impeach judgment of acquittal dated 14.12.1999 of learned Additional Sessions Judge, Patiala, whereby in criminal complaint instituted by the appellant's father, accused-respondents no.2 to 6 stand acquitted of the charge under Sections 148, 325 read with Section 149 and 323 read with Section 149 of the Indian Penal Code (in short – the IPC). The complaint was initially instituted by appellant's father Crl. Appeal No. 1623-SBA of 2006 2 Bachan Singh, who, however, died during the pendency of the case and the appellant was allowed to continue the proceedings of the complaint after the death of his father Complainant's version, in brief, is as under :- Respondents no.2 to 4 – Gurnam Singh, Kaka Singh and Labh Singh are real brothers, whereas respondent no.5 Jit Singh is son of respondent no.2 Gurnam Singh and respondent no.6 Shivsaran Singh @ Mohinder Singh is member of their party. On 02.09.1990 at about 05:00 A.M., Bachan Singh complainant, resident of Village Raipur Mandlan, along with Mohinder Singh and Hari Singh, had gone to the field to answer the call of nature. Complainant's son Balwant Singh appellant was already there to check the tubewell motor, which had been repaired by Mohinder Singh on the previous night. After answering the call of nature, the complainant and his companions were about to go towards the village. While they were still in the land of the complainant, all the five accused i.e. respondents no.2 to 6 came there along with Bhag Singh (since deceased), who was brother of respondents no.2 to 4. Bhag Singh and Gurnam Singh were armed with a gandaasi each, Kaka Singh with a barchhi (spear) and Labh Singh, Jit Singh and Shivsaran Singh @ Mohinder Singh were armed with lathis. They raised lalkara to teach a lesson to the complainant party for restraining them from cutting kikkar trees. The complainant tried to counsel the accused persons, but Bhag Singh inflicted a gandaasi blow on right side of heard of complainant Bachan Singh and another blow on front side of his head. Resultantly, he fell down. Meanwhile, Gurnam Singh inflicted gandaasi blow on right arm of Balwant Singh appellant. Labh Singh, Jit Singh and Shivsaran Singh inflicted a lathi blow each on the back of Bachan Singh. Gurnam Singh and Bhag Singh inflicted a gandaasi blow each from reverse side to Bachan Singh on his back. Bhag Singh then inflicted two more gandaasi blows to Bachan Singh near and below right Crl. Appeal No. 1623-SBA of 2006 3 elbow. Gurnam Singh also inflicted another gandaasi blow from reverse side above left wrist of Bachan Singh. When Balwant Singh appellant intervened to rescue his father Bachan Singh, Labh Singh inflicted a lathi blow above the left wrist of Balwant Singh. Bhag Singh inflicted a blow from reverse side of gandaasi on right hand of Balwant Singh. Shivsaran Singh inflicted a lathi blow below left elbow of Balwant Singh, whereas Labh Singh inflicted a lathi blow below left knee of Balwant Singh. Both the injured raised alarm. During the occurrence, Kaka Singh threw his barchhi towards the complainant party, but the same accidentally hit Bhag Singh, who resultantly fell down. The accused persons continued inflicting more injuries to Bachan Singh and Balwant Singh. The accused persons also inflicted some injuries to their own companions and then fled away with their weapons and also took Bhag Singh along. Balwant Singh, Mohinder Singh and Hari Singh removed Bachan Singh to his house. The accused got a false FIR registered against Bachan Singh and his sons Balwant Singh, Chand Singh and Jaswant Singh and got them arrested. Motive for the occurrence was that the accused forcibly cut kikkar trees from the complainant's land and the complainant used to ask the accused to desist from doing so. Since the police did not take any action at the asking of the complainant party, the complainant instituted criminal complaint against respondents no.2 to 6 for offences under Sections 307, 325, 324 and 323 read with Section 34 IPC and Section 25 of the Arms Act. After recording preliminary evidence, the accused were summoned for offences under Sections 323, 324 and 325 read with Section 34 IPC. Charge against the accused was framed for various offences as under :- “(i) Gurnam Singh, Kaka Singh, Labh Singh, Jit Singh and Shivsaran Singh alias Crl. Appeal No. 1623-SBA of 2006 4 Mohinder Singh under Section 148 of the Indian Penal Code. (ii) (a) Gurnam Singh under Section 325 of the Indian Penal Code for causing grievous hurt to Bachan Singh. (b) Kaka Singh, Labh Singh, Jit Singh and Shivsaran Singh under Section 325 read with Section 149 of the Indian Penal Code. (iii) (a) Labh Singh under Section 325 of the Indian Penal Code for causing grievous hurt to Balwant Singh. (b) Gurnam Singh, Kaka Singh, Jit Singh and Shivsaran Singh under Section 325 read with Section 149 of the Indian Penal Code. (iv) Gurnam Singh, Kaka Singh, Labh Singh, Jit Singh and Shivsaran Singh under Section 323 read with Section 149 of the Indian Penal Code.” The accused pleaded not guilty and claimed trial. To prove its case, the prosecution examined five witnesses. Dr. Satnam Singh (PW-1) stated that on 13.09.1990, undertrial prisoner Bachan Singh was admitted in jail hospital with diagnosis of multiple injuries. Report of Radiologist of Rajendera Hospital, Patiala revealed that Bachan Singh was having fracture of 5th and 6th ribs on his left side and fracture of left ulnar bone near the wrist joint. Balwant Singh, another undertrial prisoner, was examined and treated as outdoor patient in jail hospital. His radiological report revealed fracture of left ulna and fracture of 3rd right meta carpal bone. Dr. Jatinder Kumar Sadana (PW-2) stated that on 10.09.1990, he examined Bachan Singh complainant and Balwant Singh Crl. Appeal No. 1623-SBA of 2006 5 appellant and found 14 and 7 injuries respectively on their persons. After X-ray examination, injury no. 12 of Bachan Singh was declared grievous on account of fracture of left ulna bone near wrist joint, whereas injuries no.2 and 4 of Balwant Singh were declared as grievous on account of fracture of left ulna and fracture of 3rd right meta carpal bone. However, all injuries of both these injured were caused with blunt weapon. Bachan Singh complainant appeared as PW-3 and broadly stated according to his version narrated above. His cross-examination was deferred and thereafter, his cross-examination was not recorded apparently because he died later on. So, his examination-in-chief cannot be taken into consideration. Balwant Singh appellant (PW-4) broadly stated according to the prosecution version. Hari Singh (PW-5) stated that Bhag Singh inflicted gandaasi blow on right side of head of Bachan Singh and another blow on the same side. Bachan Singh fell down. Bhag Singh inflicted one more blow to Bachan Singh on other side of the head. Other accused caused injuries on the back of Bachan Singh and thereafter, the witness fled away being scared. The accused, in their statements under Section 313 of the Code of Criminal Procedure (in short – the Cr.P.C.), denied all the incriminating allegations appearing against them in the prosecution evidence and claimed to be innocent. Gurnam Singh, Kaka Singh and Labh Singh alleged that the instant criminal complaint has been filed as counter blast to case under Section 302 IPC, which was pending against Bachan Singh, Balwant Singh etc. It was also stated that Mohinder Singh and Hari Singh alleged eye- witnesses were not present at the place of occurrence. It was pleaded that when Gurnam Singh, Bhag Singh etc. were returning at about 06:30 A.M., they were way-laid and Balwant Singh and Chand Singh, armed with a barchha each, Bachan Singh with kirpaan and Jaswant Singh with a gun, attacked them. Balwant Singh inflicted barchha blow on the chest of Bhag Singh and the same proved fatal. Chand Singh inflicted barchha blow on Crl. Appeal No. 1623-SBA of 2006 6 the left side of head of Gurnam Singh. Labh Singh and Kaka Singh were also caused injuries. The attack was on account of dispute over kikkar trees. Jit Singh and Shivsaran Singh alleged that they were not present at the alleged place of occurrence not any such occurrence had taken place and they have been falsely implicated being close to the other accused. In defence, the accused examined Karam Singh (DW-1), who broadly supported the defence version narrated above. Before proceeding further, it may be noted that Balwant Singh appellant and his father Bachan Singh and brothers Chand Singh and Jaswant Singh were tried in cross-case relating to the same occurrence under Sections 302, 324 and 323 IPC and Jaswant Singh also under Section 27 of the Arms Act on the basis of FIR lodged by Gurnam Singh respondent no.2 herein. However, since Bachan Singh died during the trial, the said cross-case against him stood abated whereas Chand Singh and Jaswant Singh were acquitted and Balwant Singh was convicted and sentenced under Section 302 and Section 324 read with Section 34 IPC and Section 25 of the Arms Act vide judgment and order dated 14.12.1999 of learned Additional Sessions Judge, Patiala. Criminal Appeal No.52-DB of 2000 preferred by Balwant Singh against his conviction and sentence is also being separately disposed of by us today. We have heard learned counsel for the parties and examined the case file with their assistance. Learned counsel for the appellant vehemently contended that the appellant suffered seven injuries in the occurrence including two fractures i.e. grievous injuries and his father Bachan Singh suffered 14 injuries including one fracture i.e. grievous injury. It was also contended that although Dr. Satnam Singh (PW-1) stated in cross-examination that the fractures of ulna and ribs were possible by violent fall, yet Dr. Jatinder Kumar Sadana (PW-2) has ruled out that the injuries of Bachan Singh and Crl. Appeal No. 1623-SBA of 2006 7 Balwant Singh were self-suffered. He also stated that the injuries of Balwant Singh could be result of multiple falls, but possibility of the injuries being self-suffered is unlikely. Learned counsel for the appellant also contended that the appellant and his father suffered 21 injuries in all and it shows that respondents no.2 to 6 were aggressors. It was also pointed out that Karam Singh (DW-1) has stated that Labh Singh accused wielded tangali in self-defence, but all 21 injuries suffered by Balwant Singh and his father Bachan Singh cannot be said to have been caused by tangali. On the other hand, Karam Singh (DW-1) has admitted that he had seen injuries on the persons of Balwant Singh and Bachan Singh. He has also stated that Labh Singh wielded tangali due to which Bachan Singh suffered 4-5 injuries, but Balwant Singh did not suffer any injury. It was thus argued that all injuries of Bachan Singh have not been explained in this manner, nor any injury of Balwant Singh has been explained. Learned counsel for respondents no.2 to 6 contended that the prosecution has not explained the injuries suffered by respondents no.2 to 4 and by Bagh Singh (since deceased) in the occurrence, whereas respondents no.2 to 6 have explained the injuries suffered by the complainant party having been caused in self-defence. It was also contended that the occurrence had taken place on 02.09.1990, whereas the criminal complaint was instituted on 13.12.1990 i.e. after delay of more than three months. Learned counsel for the appellant tried to explain this delay by submitting that Bachan Singh was released on bail in cross-case on 09.11.1990 and thereafter collected documents and then filed the complaint. Learned counsel for respondents no.2 to 6 also argued that the complainant party suffered only minor injuries being abrasions and contusions and even their medico-legal examination was belated as the same was conducted on 10.09.1990 i.e. eight days after the occurrence. It was also argued that complainant party were the aggressors and motive is also proved being Crl. Appeal No. 1623-SBA of 2006 8 dispute over the kikkar trees and the occurrence took place in the land of the accused. We have carefully considered the rival contentions. There has been unexplained long delay in the institution of the complaint. Balwant Singh has stated that on 03.09.1990, when he and his father were produced in the Court in cross-case, Mr. Satpal Singh Sehgal and Mr. Satnam Singh Kler, Advocates appeared with them in the Court at the time of remand. Balwant Singh has also stated that he and his father narrated the entire occurrence on 03.09.1990 to the said advocates, who had then given an application to the Chief Judicial Magistrate, Patiala narrating the occurrence in the said application. However, no such application containing the prosecution version has been produced in evidence. Even after release of Bachan Singh on bail in cross-case allegedly on 09.11.1990, complaint was not instituted immediately, but was instituted after delay of five weeks even thereafter. On account of this long and unexplained delay, prosecution evidence has to be scrutinized with greater care and caution. Presence of respondents no.2 to 4 at the spot at the time of occurrence is not disputed even by them. However, presence of and participation by Jit Singh and Shivsaran Singh (respondents no.5 and 6) in the occurrence cannot be said to be established beyond reasonable doubt. There is general tendency to rope in innocent persons along with the real culprits. In the instant case, since the prosecution version came very belatedly, the presence of and participation by respondents no.5 and 6 in the occurrence is highly doubtful. They have also not been attributed any specific injuries. They themselves also did not suffer any injury. Consequently, Jit Singh and Shivsaran Singh deserve benefit of doubt and the instant appeal against their acquittal has to be dismissed. In this context, it has to be noticed with significance that the prosecution witnesses have given exaggerated version of the occurrence. They have stated that Bagh Singh (since deceased) had inflicted gandaasi Crl. Appeal No. 1623-SBA of 2006 9 blows from sharp side to Bachan Singh. However, no incised wound was found on the person of Bachan Singh and all injuries found on his person had been caused with blunt weapon. No injury caused with sharp weapon was found on the person of Bachan Singh or Balwant Singh appellant. In addition to the aforesaid, Kaka Singh-respondent no.3 also deserves benefit of doubt because he has not been attributed any injury caused to Bachan Singh or Balwant Singh. He is said to have thrown his barchhi causing injury to Bagh Singh (since deceased) from the side of the accused themselves. Since Kaka Singh did not cause any injury to anyone from the complainant side, Kaka Singh also deserves benefit of doubt and his acquittal requires to be affirmed. The prosecution has, however, successfully proved its case against Gurnam Singh – respondent no.2 and Labh Singh – respondent no.4. The occurrence stands admitted even by these respondents, although in a different manner. The version pleaded by them does not properly and satisfactorily explain the injuries suffered by Bachan Singh and Balwant Singh. They suffered 14 and 7 injuries respectively. One injury to Bachan Singh and two injuries to Balwant Singh were found to be grievous on account of fractures. Bachan Singh also had fractures of two ribs, but there was no corresponding injury on his medico-legal examination and so, the said fractures cannot be said to have been suffered in the occurrence. However, fracture of his left ulna and fractures of left ulna and 3rd right meta carpal of Balwant Singh are proved to have been suffered in the occurrence. It is also the defence version that Labh Singh had caused injuries to the complainant party. However, there was some provocation from the side of the complainant party as well. As a result of the injury suffered in the occurrence, Bagh Singh from the side of the accused died and respondents no.2 to 4 also suffered injuries. The same have not been explained by the complainant party. In these circumstances, case against respondents no.2 to Crl. Appeal No. 1623-SBA of 2006 10 4 would fall under Sections 334 and 335 IPC instead of Sections 323 and 325 IPC. Consequently, respondents no.2 and 4 are liable to be convicted under Sections 334 and 335 IPC read with Section 34 IPC. As regards sentence to be awarded to respondents no.2 and 4, the occurrence had taken place on 02.09.1990 i.e. more than 18 years ago and on account of injury suffered in the same occurrence, Bhag Singh – brother of respondents no.2 to 4 died and respondents no.2 to 4 also suffered injuries in the same occurrence. Keeping in view all the aforesaid circumstances, as well as nature of offences proved against them, we think that it is a fit case in which respondents no.2 and 4 should be released on probation. There is no reason to deny the benefit of probation to them. In view of the aforesaid, acquittal of respondents no.3, 5 and 6 is affirmed and the appeal qua them is dismissed. However, respondents no.2 and 4 are convicted under Sections 334 and 335 read with Section 34 IPC and are ordered to be released on probation of good conduct on furnishing probation bonds to the satisfaction of the trial court in the sum of Rs.10,000/- with one similar surety each undertaking to appear and receive sentence whenever called upon during period of one year and in the meantime, to keep piece and be of good behaviour. The appeal is disposed of accordingly. ( L. N. MITTAL ) JUDGE February 20, 2009 ( MEHTAB SINGH GILL ) monika JUDGE