Crl. Appeal No.878-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.878-SB of 2003 Date of Decision: March 9, 2010 Malkiat Singh @ Ghola and others ........Appellants Versus The State of Punjab ........Respondent And Crl. Revision No.1619 of 2003 Avtar Singh ........Petitioner Versus The State of Punjab etc. ........Respondents ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. Bipan Ghai, Sr. Advocate with Mr. Sandeep Gahlawat, Advocate for the appellants. Mr. J.S. Sandhu, AAG, Punjab. Mr. S.S. Siao, Advocate for the complainant and petitioner in CRR No.1619 of 2003. SABINA, J. Vide this judgment the Criminal Appeal No.878-SB of 2003 and CRR No.1619 of 2003 would be disposed of as they have arisen out of the same judgment. Appellants were tried for an offence under Section 302/324/34 IPC in an FIR No.67 dated 28.08.1996, registered at Police Station Bassi Pathanan. Vide judgment dated 26.03.2003 appellants were convicted for an Crl. Appeal No.878-SB of 2003 2 offence under Section 304 Part-II read with Section 34 IPC and Section 324/34 IPC. Vide order dated 26.03.2003 appellants were sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- under Section 304 Part-II IPC each. Appellants were further sentenced to rigorous imprisonment for two years under Section 324/34 IPC each. Hence, the appellants have filed the Criminal Appeal No.878 SB of 2003. Complainant, on the other hand, has filed Criminal Revision 1619 of 2003 for modification of the judgment of the trial court. The case of the prosecution story in brief as noticed by the learned Sessions Judge in para 1 of its judgment reads as under :- "Avtar Singh injured-complainant in his statement Ex.P4, stated that he is resident of Village Dadiana and pased 8th standard and now engaged in agriculture work. They are two brothers. He is elder while Jagtar Singh is younger to him. There used to be a 'Theekri Pehra' during night in their village. Residents of village used to peform the duties of night patrolling turn-by-turn on 27.8.1996, Jagtar Singh- brother of the complainant, Avtar Singh son of Gurcharan Singh and Paramjit Singh son of Mohinder Singh were to perform the duties. The aforesaid persons were to patrol the area near the house of Nirmal sngh son of Raunak Singh and they were standing there towards southern side. At about 10.30 PM, complainant took tea for his brother Jagtar Singh. At that time electric blub of the house of Nirmal Singh was burning. Also there was moon lit night. In the meantime two Crl. Appeal No.878-SB of 2003 3 scooters came from the side of the village. Complainant saw in the light that Baldev Singh alias Ghola son of Sardara Singh, resident of Mehmadpur was seen driving the said scooter. One young person aged 20 years, having faircomplexion growing beard was pillion rider on that scooter. Complainant, however, stated that he does not know the name of that person but can identify if produced before him. On the second scooter Lakhwinder Singh son of Bhag Singh, resident of Village Mehmadpar was seen on the spot. Brother of the complainant signalled them to stop. All of them came down from their scooters. Baldev Singh took out small kirpan from his 'Gatra' and exhorted other accused that Jagtar Singh should be taught a lesson for making false complaints against them before the village panchayat. Baldev Singh alias Ghola and other young person caught hold in a 'Jaffa' from behind. Baldev Singh alias ghola inflicted Kirpan from the sharp side on the person of Jagtar Singh which landed on the left upper arm. Avtar Singh came forward to rescue Jagtar Singh. Lakhwinder Singh Master then inflicted small kirpan on his 'Gatra' on the person of Avtar Singh which landed on the back of his right shoulder. Blood was oozing from the injuries of Jagtar Singh and Avtar Singh. Complainant and other persons raised alarm of 'Mar Ditta' 'Mar Ditta'. Then all the accused ran away with their respective weapons. However, scooters were abandoned at the spot. Complainant and Paramjit Singh take care of the Crl. Appeal No.878-SB of 2003 4 injured persons and rushed to PGI Chandigarh. However, Jagtar Singh succumbed to the injuries on the way to hospital near Kharar. Avtar Singh was got admitted in Civil Hospital Kharar. Dead body of Jagtar Singh then was brought to Civil Hospital Fatehgarh Sahib. Motive behind the occurrence is stated to be that Baldev Singh alias Ghola and Lakhwinder Singh Master were wondering in their village. Jagtar Singh- brother of the complainant used to object to the wrong activities of the aforesaid accused and in this regard he had made a complaint before the village Panchayat and due to this reason all the three accused infurtherance of the common intention caused the death of Jagtar Singh and caused injuries to Avtar Singh." During the course of the arguments, learned Senior Counsel for the appellants has submitted that appellant Malkiat Singh has since died on 8.7.2005. Learned State Counsel has not controverted the said fact. Hence, the proceedings qua appellant Malkiat Singh stand abated. Learned Senior Counsel for the appellants has further submitted that the trial court had held that there was no previous enmity between the parties and there had been no premeditation between the accused and injuries had been given in the heat of movement. Hence, each accused was responsible for the injuries caused by him. Learned State Counsel, who is assisted by the Counsel for the complainant has submitted that all the accused had inflicted injuries on the person of the deceased in connivance with each other. Crl. Appeal No.878-SB of 2003 5 Learned Sessions Judge in the impugned judgment has observed as under:- " Now coming to the second aspect of the arguments of the defence counsel that the present case does not fall within the purview of the offence of murder. Admittedly, there was no previous serious enmity between the parties. Accused persons were not armed with deadly weapons. There was no pre-mediation. Only single blow was given to the deceased as well as to the injured eye-witness and that too was not on the vital part of the body. Malkiat Singh and Lakhwinder Singh were having small kirpans which is a symbol of Amritdhari Sikh. Autopsy surgeon proves the fact that there was single incised wound on the left shoulder on anterior axillary fold and was slightly on the lateral side. Looking to the totality of the evidence in case in hand it would not be possible to come to the conclusion that when the accused persons inflicted blows with kirpan blows on the non-vital part of the deceased and eye witness, they intended to cause bodily injury as was sufficient to cause death in the ordinary course of nature. Autopsy Surgeon in his cross-examination has clearly stated that if the patient was handled properly immediately on the receipt of injury and medical aid was provided there was every possibility of his survival. At the most accused could only be attributed with the knowledge that it was likely to cause injury which was likely to cause death but it is proved that they have no Crl. Appeal No.878-SB of 2003 6 intention at all in view of the fact that there was no previous serious enmity between the parties, no premeditation and injuries were given in the heat of the moment, the case would fall within the ambit of Section 304 Part II of the Indian Penal Code." Thus, the injuries which were inflicted by the appellants in the heat of the movement would lead to the inference that all the appellants were responsible for their own injuries caused by them in the alleged occurrence. So far as accused-Balkar Singh is concerned, he had allegedly caught hold the deceased when the deceased-appellant Malkiat Singh had inflicted injury on the left shoulder of the deceased. Appellant Balkar Singh had not attributed any injury on the person of the deceased. Keeping in view the facts and circumstances of the case, it would be just and expedient to reduce the sentence qua imprisonment of appellant Balkar Singh to already undergone by him. Appellant Balkar Singh has undergone about two years of actual sentence. Accordingly, the sentence of imprisonment of Balkar Singh under Section 304 Part II IPC is reduced to already undergone by him and he is acquitted of the charge framed against him under Section 324/34 IPC. The appellant Balkar singh is directed to deposit the fine of Rs.2,000/- as imposed by the trial court within two months from today, failing which, the appeal qua him shall stand dismissed. Since all the appellants are responsible for their own injuries caused by them, appellant Lakhwinder Singh is acquitted of the charge framed against him under Section 304 Part II/34 IPC. His conviction under Section 324 IPC is maintained. Crl. Appeal No.878-SB of 2003 7 Learned Senior Counsel for the appellant-Lakhwinder Singh has submitted that the said appellant had only caused a simple injury on the non-vital part of injured Avtar Singh and he be ordered to release on probation. The said appellant had remained in custody for more than one year and eight months and he was a government servant. Keeping in view the submissions made by learned Counsel for the appellant Lakhwinder Singh, it would be just and expedient to release the appellant Lakhwinder Singh on probation. The object of releasing an accused on probation is that he may be given an opportunity to reform himself. The benefit of probation can be denied only to hardened criminals or where restriction has been imposed by Section 4 of the Probation of Offenders Act, 1958. The sentence qua imprisonment as imposed upon accused Lakhwinder Singh by the Courts below is set aside. The appellant Lakhwinder Singh is ordered to be released on probation for a period of one year subject to his furnishing personal bonds in the sum of Rs.10,000/- with one surety in the like amount to the satisfaction of the trial Court. It is further directed that the appellant Lakhwinder Singh shall keep peace and will be of good behaviour during the period of probation. The fine deposited by the appellant Lakhwinder Singh be treated as costs of proceedings. The appellant Lakhwinder Singh is directed to furnish the bonds within two month from today, failing which, the appeal qua him shall stand dismissed. The appeal stands disposed of accordingly and consequently the criminal revision petition is dismissed. (SABINA) March 9, 2010 JUDGE Anand