Crl.Revision No.2334 of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl. Revision No.2334 of 2002 Date of decision: 9.3.2010 Mohinder Singh and others ... Petitioners versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.A.S.Virk, Advocate, for the petitioners. Mr.Vikas Malik, AAG, Haryana, for the respondent. ... JORA SINGH, J. Mohinder Singh and others filed this revision to impugn the judgment dated 11.11.2002 rendered by Additional Sessions Judge, Karnal. By the said judgment, appeal against the judgment of conviction and order of sentence dated 13.7.1999 passed by JMIC, Karnal, was dismissed. Vide judgment dated 13.7.1999, the petitioner Mohinder Singh was convicted under Sections 324/326 IPC, whereas petitioners Maya Ram and Shiv Kumar under Sections 323/325 IPC, and sentenced as under:- “Mohinder Singh Under Section 324 IPC RI for two years and to pay a fine of Rs.3000/-, in default of payment of fine, to further undergo RI for three months. Under Section 326 IPC RI for three years and to pay a fine of Rs.5000/-, in default of payment of fine, to further undergo RI for six months. Maya Ram and Shiv Kumar Crl.Revision No.2334 of 2002 2 Under Section 323 IPC RI for six months and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for two months, each. Under Section 325 IPC RI for two years and to pay a fine of Rs.3000/-, in default of payment of fine, to further undergo RI for four months, each. All the sentences qua all the convicts were ordered to run concurrently. Prosecution story, in brief, is that on 16.5.1988 at 11.55 AM, a VT message regarding admission of Jagmal Singh etc. was received in Police Station, Karnal. Then ASI Siya Nand along with police party had gone to Civil Hospital, Karnal. After getting opinion from the doctor regarding fitness of the injured, statement of Jagmal Singh (Ex.PA) was recorded. Jagmal Singh reported to the police that on 15.5.1988, he had gone to Village Baronda to see his relatives, where his brother-in-law Karam Singh had met him and came to know that his relatives Rulia Ram and Om Parkash had gone to Village Chhapra to cultivate their fields with tractors. On receipt of information, he along with Karam Singh came to Village Chhapra at about 7.00 PM along with meal of their relatives. Then sighted Babu Ram and Rulia while ploughing the land with tractor. After stopping the tractor, Babu Ram and Rulia had met them. In the meantime, Mohinder Singh and Madan Lal armed with gandasi and lathi, respectively, came and raised a lalkara that they should be taught a lesson as to why fields are being cultivated. Mohinder Singh gave gandasi blow from its reverse side, hitting him on his right hand. Madan Lal (since deceased) gave lathi blow. On receipt of blows, he fell down. In the meantime, Maya Crl.Revision No.2334 of 2002 3 Ram armed with saria and Shiv Kumar armed with lathi came and raised lalkara that they should not spare to the complainant party. Shiv Kumar gave lathi blow to Karam Singh and Babu Ram. Raula was raised. Rulia Ram and Om Parkash came to the spot and had rescued the complainant party from the clutches of the accused. After causing injuries, accused had fled away from the spot along with their respective weapons. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. Motive to cause injuries was that the land was in possession of the complainant party, which was being ploughed by taking on lease from Sumat Parshad. Accused party wanted to grab the property. Investigating Officer along with party had gone to the place of occurrence. Rough site plan with correct marginal notes was prepared. Weapons of offence were recovered and after completion of investigation, accused were challaned. Accused were charged under Sections 323/324/325/326 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined PW1 Rulia Ram, eye witness, PW2 Jagmal Singh, injured, PW3 Karam Singh, injured, PW4 Babu Ram, injured, PW4 Dr. Surinder Katyal and PW5 Dr. Sudesh Kumar Lamba. After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. Accused denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused is that complainant party came to the spot to take possession forcibly from them. They were restrained from taking forcible possession of the land in their possession. In the exercise of right of private defence, injuries were caused when there was fight amongst the parties. Crl.Revision No.2334 of 2002 4 In defence, Sumat Parshad appeared as DW1 and stated that he is owning land and the same was on lease with the accused party. After hearing learned Public Prosecutor for the State, defence counsel for the accused and from the perusal of evidence on the file, petitioners were convicted and sentenced by the trial Court. In appeal, judgment of the trial Court was upheld. I have heard learned counsel for the petitioners and State and gone through the evidence on file. Learned counsel for the petitioners argued that the petitioners were convicted under Sections 324/326 and 323/325 IPC and in para 16 of the judgment, trial Court opined that accused came to the spot to inflict injuries to the complainant party one after other. They did not come jointly. So, they are not liable under Section 325 or 324 read with Section 34 IPC. Rather, they are responsible for their own act individually. One of the assailants, namely, Madan Lal died when the trial was going on. Mohinder Singh was substantively convicted under Sections 324/326 IPC, whereas Maya Ram and Shiv Kumar were substantively convicted under Sections 323/325 IPC, but as per Dr. Sudesh Kumar Lamba, five injuries were noticed on the person of Karam Singh. All the injuries were with blunt weapon and found to be simple in nature. One injury was noticed on the person of Babu Ram. Injury was a contusion. Weapon used was blunt. 10th rib was found fractured. Five injuries were found on the person of Jagmal Singh. Injury No.3 was incised wound, whereas injury No.2 was swelling, on right forearm, below elbow joint. Dr. Surinder Katyal had x-rayed the injuries of Babu Ram, Crl.Revision No.2334 of 2002 5 Karam Singh and Jagmal Singh. As per x-ray report, fracture of 10th rib was noticed in case of Babu Ram. In case of Jagmal Singh, after x-ray report, fracture of both bones of right forearm was detected. Fracture of 10th rib and both bones of right forearm were with blunt weapon. No injury was found to be grievous, caused with a sharp edged weapon. When injuries with a blunt weapon and fracture is noticed, then the accused is liable for punishment under Section 325 IPC and not under Section 326 IPC. Secondly, occurrence was in the year 1988. Owner of the land appeared in defence and stated that the land was with the petitioners. When the land was with the petitioners, then no reason to plough the same by the complainant party. In fact, complainant party had the intention to grab the property, which was on lease with the petitioners. To protect possession when there was fight amongst the parties, then injuries were caused presuming the story to be correct one. So the petitioners are liable for punishment under Sections 323/324/325 IPC and not under Section 326 IPC. As per custody certificates produced by learned State counsel, Mohinder Singh has already undergone two months and twenty two days, Maya Ram has undergone two months and nineteen days and Shiv Kumar has undergone two months and sixteen days, as on 4.3.2010. Petitioners are the first offenders and ready to pay compensation. Requested to take a lenient view by directing the petitioners to undergo imprisonment already undergone. Learned State counsel argued that the petitioner Mohinder Singh was rightly convicted and sentenced under Section 326 IPC, but since occurrence was in the year 1988, then no objection if a lenient view is taken. Land being ploughed was owned by Sumat Parshad. He Crl.Revision No.2334 of 2002 6 appeared as DW1 and stated that land was on lease with the petitioners. Case of the petitioners is that they were ploughing the land on lease. Complainant party came and tried to take possession forcibly. Complainant party was requested not to take possession of the land on lease with them, then there was a sudden fight amongst the parties. In exercise of right of private defence, injuries were caused. Meaning thereby, occurrence is an admitted fact. Only question is whether the petitioners were the aggressor or the complainant party was the aggressor. No medical evidence on the file that injuries were noticed on the person of the petitioners. Injured when appeared in Court, then did not state a word that they had caused injuries to the other side. So, the petitioners cannot argue that there was a sudden fight and in that fight, complainant party had also caused injuries to them. Six injuries were noticed on the person of Karam Singh, one on the person of Babu Ram and five on the person of Jagmal Singh. Injury on the person of Babu Ram was on the vital part and after x-ray, fracture was noticed. One injury on the person of Jagmal Singh was also found to be grievous. If the petitioners were to protect their possession, then there was no idea to repeat the blows, particularly when complainant party was not armed. That means, injuries were not caused by the petitioners in exercise of right of their private defence. As discussed earlier, Dr. Sudesh Kumar Lamba had medico legally examined the injured. All injuries on the person of Karam Singh were found to be simple in nature with blunt weapon. One injury on the person of Babu Ram with a blunt weapon was found to be a contusion. Injury was on the back of left side of chest. One injury on the person of Crl.Revision No.2334 of 2002 7 Jagmal Singh, i.e., on the right forearm, was found to be grievous in nature but fracture was with a blunt weapon. When injury is with blunt weapon and is found to be grievous, then conviction is to be under Section 325 IPC and not under Section 326 IPC. Accused is to be convicted under Section 326 IPC, if injury caused with a sharp edged weapon was grievous. Trial Court or First Appellate Court did not opine as to how injury with a blunt weapon found to be grievous in nature is punishable under Section 326 IPC. In view of medical evidence, i.e., x-ray reports and MLRs, Mohinder Singh is liable for punishment under Section 325 IPC instead of Section 326 IPC. At the time of arguments, custody certificates were produced by the State counsel showing this fact that Mohinder Singh has already undergone two months and twenty two days, Maya Ram has undergone two months and nineteen days and Shiv Kumar has undergone two months and sixteen days, as on 4.3.2010. Mohinder Singh has already deposited Rs.8,000/- as fine, whereas Maya Ram and Shiv Kumar have deposited Rs.3500/- each as fine. Occurrence was in the month of May, 1988. Petitioners are the first offenders. Mohinder Singh, aged about 61 years, had four minor children, Maya Ram, aged about 47 years, had two minor children, whereas Shiv Kumar, aged about 48 years, had three minor children to support. In 2007(3) RCR (Crl.) 216, Manjappa vs. State of Karnataka, conviction was under Section 325 IPC. Accused was sentenced to undergo RI for six months. Incident was 10 years old. Hon'ble Supreme Court reduced the sentence to already undergone (15 days), with a direction to pay compensation of Rs.15,000/- to the injured. Crl.Revision No.2334 of 2002 8 In 2007(3) RCR (Crl.) 504, Jaibir Singh vs. State of Haryana, conviction was under Section 326 IPC. Incident was 15 years old. Accused remained in custody only for 11 days. Then sentence was reduced to already undergone. Fine was enhanced from Rs.1,000/- to Rs.10,000/-. In the present case, occurrence is dated 15.5.1988. Petitioners have already undergone more than two and a half months. Ends of justice would be fully met if lenient view is taken. Keeping in view the offence and antecedents of the petitioners, when occurrence is dated 15.5.1988, the petitioners are directed to undergo imprisonment already undergone. Each of the petitioners is directed to deposit Rs.10,000/- more as compensation payable to the injured in equal share, i.e., each injured is to get Rs.10,000/-. Compensation is to be deposited within two months before the trial Court failing which, revision would stand dismissed automatically. With the modification aforesaid, revision stands dismissed. 9.3.2010 ( JORA SINGH ) pk JUDGE