Criminal Revision No. 2327 of 2003 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Criminal Revision No. 2327 of 2003 Date of Decision: 11.2.2010 Shanti and Others …Petitioners Versus State of Haryana …Respondent AND 2. Criminal Revision No. 2357 of 2003 Santosh …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Rajesh Sheoran, Advocate for the petitioners (In Criminal Revision No. 2327 of 2003) Mr. Yashwinder Paul Singh, Advocate for the petitioner (In Criminal Revision No. 2357 of 2003) Ms. Hemlata Balhara, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) By this common judgment, Criminal Revision No. 2327 of 2003 preferred by Shanti, Subhash and Azad and Criminal Revision No. 2357 of 2003 preferred by Santosh, shall be decided together. Criminal Revision No. 2327 of 2003 2 All the accused belong to one family. Shanti is mother of Subhash, Azad and Santosh. The four petitioners were named as accused in case FIR No. 46 dated 1.4.1996 registered at Police Station Behal, under Sections 323, 324, 326 read with Section 34 IPC. The trial Court found petitioners guilty of offence under Sections 323, 324 and 326 read with Section 34 IPC and sentenced them as under:- S.No. Name of accused and offence Sentence awarded 1 Shanti, Santosh, Subhash and Azad Under Section 323 IPC. To undergo rigorous imprisonment for six months and pay fine of Rs.200/- each. In default of payment of fine, to undergo imprisonment for 15 days each. 2 Shanti, Santosh, Subhash and Azad Under Section 324 IPC. To undergo rigorous imprisonment for two years and pay fine of Rs.300/- each. In default of payment of fine, to undergo imprisonment for one month each. 3 Shanti, Santosh, Subhash and Azad Under Section 326 IPC. To undergo rigorous imprisonment for three years and pay fine of Rs.1,000/- each. In default of payment of fine, to undergo imprisonment for three month each. Aggrieved against the judgment of conviction and order of sentence passed by the trial Court, petitioners have preferred an appeal. The Appellate Court below maintained the conviction of the petitioners, however, reduced the sentence for offence under Section 326 read with Criminal Revision No. 2327 of 2003 3 Section 34 IPC to two years rigorous imprisonment. The family of complainant and the accused are closely related. In the present case, fight ensued because of exchange of abuses between Shakuntla, complainant, and Shanti, accused/petitioner. Shakuntla and Shanti are wives of two brothers, namely Joginder Singh and Bharat Singh. The fields of complainant and accused adjoin with each other. A trivial issue led to exchange of abuses and causing of injuries to Shakuntla. Out of these four accused, daughter Santosh was armed with Kulhari (Axe), Azad Singh was armed with jelly which he used like a lathi, whereas Shanti and Subhash were empty handed. Subhash is stated to have given brick bat blows. FIR in the present case was lodged on basis of statement made by Shakuntla wife of Joginder Singh which was recorded in the Daily Diary Register vide entry No. 23 dated 31.3.1996. This was exhibited as Ex.PW.7/A. It is stated that on 31.3.1996 at about 4.30 P.M. Shakuntla, her husband, son Vijay Kumar and daughter Sharda were harvesting wheat crop in the field of tube-well. In the adjoining field, Bharat Singh, elder brother of the husband of complainant Shakuntla, was building residential house. Shanti wife of Bharat Singh, at 4.30 P.M. came on the ridge of the field of the complainant and stated that they were wrongly naming them as one who had taken away the wheat of the complainant and saying so she started abusing. Shakuntla told her Jethani (wife of elder brother of the husband) not to give abuses. At this, Shanti caught hold of the neck of the complainant Shakuntla and made her fall on the ground. On hearing the noise of quarrel, Santosh, Subhash and Azad came running towards the field of complainant. Azad Criminal Revision No. 2327 of 2003 4 was armed with jelly and Santosh was armed with axe. Husband Joginder Singh, son Vijay and daughter Sharda got the complainant Shakuntla separated from Shanti. The accused party started throwing brick bats from the field. At that time, Santosh came gave a Kulhari blow on the head of Shakuntla. On receipt of Kulhari blow, Shakuntla, complainant, fell on the ground. Meanwhile, Azad gave a jelly blow like a lathi in her waist. He gave two/three blows of jelly. When the husband and son of the complainant made an attempt to apprehend the accused, they ran away from the spot. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The accused were charged for an offence under Sections 323, 324, and 326 IPC with aid of Section 34 IPC. Prosecution examined PW.9 Dr. R.S. Punia, Medical Officer, who was then posted at Community Health Center, Loharu. He found following six injuries on the person of Shakuntla:- “1. Incised wound 2 x 1.5 cm on posterior part of skull on right side about 7.5 cm away from right pinna. Advised X-ray. It is associated with defused swelling. 2. L.W. 3 x 1 cm x bone deep on frontal region of skull on right side and associated with defuse swelling. Advised X-ray. 3. Incised wound 4.5 x .5 cm situated just right to injury No.2. Anteriorly meeting to anterior end of injury No.2 and associated Criminal Revision No. 2327 of 2003 5 with defuse swelling. Advised X-ray. 4. Contusion 15 x 2.5 cm on back of abdomen on right side 3 cm away from spine in right renal region place obliquely. 5. Contusion 12 x 2.5 cm on back of chest of left side just below scapular region placed obliquely. Advised X-ray. 6. Contusion 15 X 2.5 cm on back of middle of abdomen on left side 1 cm away from spine”. According to this doctor, injuries No. 1 and 3 were caused by incised weapon and other injuries were caused by blunt weapon. Injuries No.1, 2, and 3 were declared as grievous. For declaring injuries No. 1, 2 and 3 grievous, PW.9 Dr. R.S. Punia had given his opinion on application submitted by the Investigating Officer. The opinion Ex.PW.9/D read as under:- “X-ray:- 1. Skull -- AP – Bony Injury seen in right frontal region. Right lat – Bony injury seen in right parietal region. 2. Chest – AP View c (L) Scapula. No bony injury seen”. To clarify this further, opinion Ex.PW.9/E was given. The same read as under:- “As per the X-ray Report No. 19 dated 1.4.96, MLR Criminal Revision No. 2327 of 2003 6 No. L.H.V./96/01 dated 31/3/96 of Smt. Shakuntala w/o Joginder Singh R/o Chahar Kala. Bony injury seen in right frontal region in AP view of skull and bony injury seen in right lateral view of skull in right parietal region. So, injury No. 1, 2, 3 are grievous in nature and as no bony injury seen in AP view of chest. So injury No.5 is simple in nature”. A short question has been raised before me that the Radiologist has not been examined. PW.9 Dr. R.S. Punia, in his opinion, has only stated that Shakuntla has suffered bony injuries, thus, to declare the injuries grievous, it has been nowhere stated that there was a fracture or dislocation of the bone. Counsel for the petitioners has referred to Section 320 IPC which define grievous injury and stated that bony injury will not fall within the ambit of Section 320 IPC and, therefore, the same cannot be declared grievous. In the present case, PW.2 Shakuntla is the only injured person. I have perused her examination-in-chief. According to testimony of this witness, Shanti was not armed and had only given abuses. Subhash had thrown brick bats at her. Santosh who was armed with axe, an incised weapon, had caused injuries No.1 and 3. Azad had given one jelly blow like a lathi and thereafter he repeated blows for two/three times. There are only six injuries. Therefore, these injuries have been caused by Santosh and Azad. No injury has been caused by Shanti. Regarding injury caused by Subhash with brick bat blows there is a doubt. Santosh was armed with an incised weapon. There are two Criminal Revision No. 2327 of 2003 7 incised injuries. They relate to Santosh. Azad had given one blow and then gave two/three blows. Therefore, all four blunt injuries relate to Azad. No injury, thus, can be result of brick bat blow. Therefore, as a matter of abundant caution, benefit of doubt is extended to Subhash. He is acquitted of the charges. A perusal of testimony of PW.9 Dr. R.S. Punia reveal that except stating that injuries No.1, 2 and 3 were grievous, he has not stated that as to how these injuries were grievous. In the medicolegal report, while giving dimensions of injuries No.1, 2 and 3, the doctor has not stated by way of clinical observation that there was any fracture or dislocation. The Radiologist has not been examined. The opinions Ex.PW.9/D and Ex.PW.9/E only stated that there was bony injury which cannot be declared grievous. Therefore, offence, if any, will fall under Sections 324 and 323 IPC. The occurrence in the present case has taken place in March 1996. Petitioners have suffered protracted trial of about 14 years. The accused and the complainant are closely related. The fields of accused and the complainant are also adjoin each other. Counsel for the petitioners Mr. Yashwinder Paul Singh and Mr. Rajesh Sheoran, Advocates, have submitted that in the last 14 years, no untoward incident had taken place and the parties are maintaining peace. Therefore, this Court is of the view that sending the petitioners behind the bars may disturb the prevailing peace. As this Court has already recorded the acquittal of accused under Sections 326 read with Section 34 IPC, it find appropriate to release the petitioners on probation for offence under Section 324 read with Section 34 IPC and Section 323 Criminal Revision No. 2327 of 2003 8 read with Section 34 IPC. Petitioners shall appear before the trial Court within three months from today. They shall file bonds to the satisfaction of the trial Court that they shall maintain good conduct, behaviour and peace for a period of one year. In case of any breach of terms of bonds, the trial Court shall call upon the accused to undergo the sentence awarded by the trial Court under Section 324 read with Section 34 IPC and Section 323 read with Section 34 IPC. The cost of litigation qua each accused is assessed as Rs.10,000/-. The cost of litigation shall be disbursed to complainant Shakuntla. With the observations made above, both the revision petitions are disposed of. (Kanwaljit Singh Ahluwalia) Judge February 11, 2010 “DK”