IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.440 of 2001 Date of decision : October 14, 2008 Surjit Singh …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting? For the appellant : Mr. Vinay Thakur, Advocate. For the respondent : Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, Judge (Oral) Appellant has appealed against the judgment dated 28th July, 2001 of Learned Sessions Judge, Una, whereby he has been convicted of offence, under Section 307 IPC and sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 2000/-, in default of payment of fine, to undergo simple imprisonment for a further period of one year. 2. Appellant Surjit Singh and his brother Rakesh Kumar were challaned by Amb police to stand trial for offences under Sections 324 and 307 IPC read with Section 34 IPC on the following allegations. PW4 Suresh Kumar was married to a daughter of PW2 Jai Chand. Jai Chand, PW2, had another daughter, named Guddo. Suresh Kumar PW4 wanted said Guddo to be married to his brother PW3 Ashok Kumar alias Pappu. He made a proposal to that effect to Jai Chand PW2 but the latter did not agree to the same. Guddo was ultimately married to Rakesh Kumar, the brother of appellant Surjit Singh and his co-accused at the trial. Suresh Kumar took ill to this alliance and did …2… not attend the marriage, even though his wife was real sister of Guddo. On 6th December 1997, marriage of Surinder Kumar, a son of PW2 Jai Chand was taking place. Marriage Party reached village Jallo-De-Barh around 9.00 P.M. Appellant Surjit Singh and his brother Rakesh Kumar happened to have a quarrel with Suresh Kumar PW4 and his brother Ashok Kumar PW3. Some elders intervened and two sides were taken to different rooms. Ashok Kumar and Suresh Kumar went to that room where the bridegroom was seated by the bride side. Appellant and his brother Rakesh Kumar allegedly went to that room. Appellant took out a knife and tried to hit Ashok Kumar. However, the blow landed on the thigh of appellant’s own brother Rakesh Kumar and caused a bleeding wound. Appellant then gave three blows of knife one after the other to Ashok Kumar, as a result of which he sustained the following injuries:- “1. Clean incised wound 1.5 cm depth and gapping was less than that I cm. Sort of bony tissues palpable through bone. Bleeding profusely wound at the level of spine of stapula left side. 2. CIW 1.5 cm long parrellel vertebral column right side, Lumbo Sacral spine. 3. 3 cm linear scar mark (abrasion over right cheek). 4. Clean Incised wound 1.5 x 1.5 left para umbilical omentun visible and palpable.” Injury No. 4 was found to be grievous in nature. Other three were, however, opined to be simple, by PW1 Dr. Gurdev Singh. On account of seriousness of the injury No. 4, Ashok Kumar was shifted to District Hospital, Una from Primary Health Centre, Daulatpur where he was …3… initially taken and from Una Hospital, he was taken to PGI, Chandigarh, where he remained admitted for 10 to 12 days. 3. Matter was reported to the police by PW2 Jai Chand, father of the bridegroom, who also happened to be the father-in-law of injured Suresh Kumar PW4 and the co-accused of appellant Surjit Singh, namely Rakesh Kumar. Police investigated the case and finally challaned the appellant and his brother Rakesh Kumar, as aforesaid. 4. Prosecution examined Ashok Kumar, injured, as PW3 and Suresh Kumar, injured, as PW4. One independent eye witness, namely, Jog Raj was also examined. Doctor who conducted the medico legal examination of injured Ashok Kumar was also examined. He is PW1 Dr. Gurdev Singh. Since Rakesh Kumar, brother of the appellant had also sustained an injury, he too was got medically examined. PW8 Dr. Neeraj Kumar conducted his medical examination. 5. Relying upon the testimony of the above named two injured, independent eye witness PW5 Jog Raj and two doctors, Learned Sessions Judge held the appellant guilty of offence under Section 307 IPC and convicted and sentenced him, as aforesaid. However, his brother and co-accused Rakesh Kumar was acquitted. It appears that State has not filed any appeal challenging the acquittal of Rakesh Kumar. Appellant has challenged his conviction and sentence. 6. Learned counsel, representing the appellant, has made two submissions. His first submission is that evidence on record does not prove the charge against the appellant. In the alternative, he has submitted that leniency be shown in the matter of award of punishment because the appellant is a disabled young man, having 52% permanent disability. …4… 7. As regards the first submission, evidence on record, when seen in the light of the defence plea suggested to the eye witnesses, proves the charge against the appellant. Defence plea, as suggested to the injured and independent eye witness, was that the injuries had been sustained by Ashok Kumar PW3 when on reaching the village of the bride, the members of marriage party were passing through a narrow passage with angle irons fitted on both the sides and Ashok Kumar fell on those angle irons. Both the injured and the independent witness denied the suggestion. No suggestion was put to these witnesses as to the cause of injury sustained by brother and the co- accused of the appellant. It appears that realising that the plea would not be acceptable, the appellant in his statement, under Section 313 Cr.P.C. took a somersault and took an altogether different plea. He stated that it was Suresh Kumar PW4, who was carrying the knife and that when he (Suresh Kumar) tried to hit Rakesh Kumar co-accused of the appellant with that knife, the blows landed on his own brother Ashok Kumar’s body and he sustained the injuries. This change in the stand itself corroborates the prosecution version. 8. Prosecution’s evidence, comprising of the testimony of PW3 Ashok Kumar, injured, PW4 Suresh Kumar and PW5 Jog Raj is to the effect that Surjit Singh appellant and his brother Rakesh Kumar went to the room where Ashok Kumar, injured and his brother Suresh Kumar PW4 were sitting with the bridegroom and appellant then took out a knife and tried to give a blow to Ashok Kumar but the first blow landed on the back side of the thigh of Rakesh Kumar and caused a punctured wound and thereafter three successive blows were given by Surjit Singh appellant to Ashok Kumar, which caused injuries No. 1, 2 and 4, noticed hereinabove. The testimony of the three witnesses is …5… consistent, free from contradictions and natural. Their testimony is corroborated by the statements of PW1 Dr. Gurdev Singh, who medically examined Ashok Kumar and PW8 Dr. Neeraj Kumar, who examined Rakesh Kumar, the brother of the appellant, who stood trial with him, as a co-accused. 9. As regards the second submission, I am of the considered view that the mere disability of the appellant is not a good ground for treating him with leniency in the matter of award of punishment. Now when the appellant, while suffering from 52% disability can make a murderous assault on a young man, he cannot be said to be an ordinary criminal deserving any sympathy in the matter of award of punishment. So I find no merit even in this alternative submission of the Learned counsel for the appellant. 10. As an upshot of the above discussion, appeal is held to be without merit. The same is, therefore, dismissed. October 14, 2008(vs) ( Surjit Singh ), J