Criminal Appeal No. 924-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 924-SB of 2003 Date of decision : November 04, 2011 Sukhdev Singh and others ....appellantss versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Namit Sharma, Advocate as Amicus-curiae for the appellantss Mr. RS Rawat, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) Accused Sukhdev Singh, Gurmit Singh and Jaskaran Singh alias Jassa have filed the instant criminal appeal assailing their conviction and sentence ordered by learned Additional Sessions Judge, Muktsar vide judgment and order dated 3.4.3003. Prosecution case in brief is as under:- On 14.5.1999 at about 9.30 AM, complainant Raja Singh was going to doctor. When he reached Harijan Basti, all the three accused accosted him. Accused Sukhdev Singh was armed with kirpan (sword), accused Jaskaran Singh was armed with Takua (kulhari/axe) and accused Criminal Appeal No. 924-SB of 2003 -2- Gurmit Singh was armed with dang (lathi). Accused Sukhdev Singh is uncle of the remaining two accused. Accused Sukhdev Singh exhorted the other two accused to catch hold of the complainant for teasing their sister. Accused Jaskaran Singh inflicted two blows with takua on the head of the complainant who fell down on the ground. Accused Sukhdev Singh inflicted kirpan blow from sharp side on the forehead of the complainant above left eye brow. Accused Gurmit Singh inflicted lathi blows on different parts of person of the complainant. Alarm raised by the complainant attracted Beet Singh who witnessed the occurrence. All the three accused escaped with their weapons. Motive for the occurrence was that accused Sukhdev Singh suspected that his daughter had some affair with the complainant. Complainant's father removed the injured complainant to hospital. On medico-legal examination, seven injuries were found on the person of the complainant. Injury no. 1 was grievous being compound fracture of skull, caused with sharp weapon. Said injury is reproduced hereunder :- “Incised wound 4.7 cms x 1 cm x bone deep on the head left side, oblique in direction, freshly bleeding, anterior end of the wound was 3.5 cms from the midline and 1.5 cms above left eye brow, underlying bone was cut.” Injuries no. 2,3 and 6 were lacerated wounds. Injury No. 4 comprised of multiple abrasions and remaining injuries no. 5 and 7 were abrasions. X-ray was advised for injuries no. 2 and 3. On x-ray Criminal Appeal No. 924-SB of 2003 -3- examination, no fracture qua said injuries was found. Injuries no. 2 to 7 were thus found to be simple. Intimation regarding admission of the injured in hospital was sent to the police. Thereupon ASI Baldev Singh went to the hospital. However, injured complainant was opined to be not fit to make statement on account of sedation. Again on 15.5.1999, ASI Baldev Singh went to the hospital. The complainant was opined to be fit to make statement. Thereupon his statement regarding the occurrence was recorded. On its basis, FIR was registered and investigated. The complainant gave his blood stained pyjama and shirt to the police. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. All the three accused were arrested on 18.5.1999 in the presence of Sant Singh Chowkidar. Accused Jaskaran Singh and Gurmit Singh were having takua and dang respectively which were seized by the police. Accused Sukhdev Singh after making disclosure statement got recovered kirpan from corner of his residential room. The same was also seized by the police. On police application, doctor gave opinion that injury no. 1 of the complainant was dangerous to life. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of all the three accused under sections 307, 326 and 323 read with section 34 IPC. Charge for substantive offence under section 307 IPC against Sukhdev Singh accused and under section 307 read with section 34 IPC against the remaining two accused and under section 323 IPC also against Criminal Appeal No. 924-SB of 2003 -4- the said two accused and under section 323 read with section 34 IPC against Sukhdev Singh accused was framed. The accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined ten witnesses. Dr. H.N.Singh, PW1 stated about medico legal examination of the injured complainant and also about opinion given by him. Complainant Raja Singh, PW2 and Beet Singh, PW3 broadly stated according to the prosecution version that all the three accused had caused injuries to the complainant in the manner alleged by the prosecution. Dr. R.K.Gupta, PW4 stated that he radiologically examined the complainant and found no bony injury qua injuries no. 2 and 3. ASI Darshan Singh, PW5 stated that he recorded formal FIR in this case. HC Sham Sunder, PW6 stated about recovery of weapons from all the three accused. Constable Sukhmander Singh, PW7 and Head Constable Jeet Singh PW9 tendered their affidavits in evidence being formal witnesses. Gursevak Singh, Draftsman, PW8 stated that he prepared scaled site plan of the place of occurrence. ASI Baldev Singh, PW10 stated about investigation of the case conducted by him. The accused in their examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the Criminal Appeal No. 924-SB of 2003 -5- prosecution evidence and claimed to be innocent. They alleged that the complainant had teased Karamjit alias Shino daughter of accused Sukhdev Singh. Villagers having seen it gave beatings to the complainant who fell down on iron strip lying on the ground which caused injury on his head. In defence, the accused examined two witnesses namely Chhinno, DW1 (daughter of Sukhdev Singh accused) and Surjit Kaur, DW2. Both of them broadly stated according to the defence version. Learned Additional Sessions Judge, Muktsar vide impugned judgment dated 3.4.2003 convicted all the three accused of the offences charged with and vide order of even date, sentenced each of them to undergo rigorous imprisonment for five years and to pay fine of Rs 5000/- and in default thereof, to undergo further rigorous imprisonment for one year for offence under section 307 IPC and to undergo rigorous imprisonment for six months for offence under section 323 IPC. Both the substantive sentences were ordered to run concurrently. Feeling aggrieved, convicts have filed the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellants vehemently contended that there has been delay of 28 hours in lodging the FIR which has not been explained satisfactorily. It was submitted that even if complainant Raja Singh was unfit to make statement, FIR could be lodged by eye witness Beet Singh. It was also pointed out that Beet Singh eye witness who is Criminal Appeal No. 924-SB of 2003 -6- uncle of the complainant did not take the injured complainant to hospital who was taken to hospital by his father. It was also submitted that there has been delay in sending the copy of FIR to Ilaqa Magistrate although under section 157 Cr.P.C. , copy of FIR is required to be transmitted forthwith to the Ilaqa Magistrate. It was also argued that Sant Singh, Chowkidar who was witness of recovery of weapons from accused Gurmit Singh and Jaskaran Singh has not been examined as witness giving rise to adverse presumption against the prosecution, as held by Hon'ble Supreme Court in Smt. Dilboo (dead) by LRs. vs. Smt. Dhanraji (dead), 2000(4) R.C.R. (Civil) 734. It was canvassed that no witness from the locality was associated at the time of recovery of kirpan at the instance of Sukhdev Singh accused. Counsel for the appellants also contended that names of the assailants were not mentioned in MLR entitling the accused to acquittal. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme court in Rehmat vs. State of Haryana, 1996(3) Recent Criminal Reports, 588. Counsel for the appellants also argued that accused Jaskaran Singh was armed with takua, a sharp edged weapon but according to Raja Singh complainant, PW2 and Beet Singh, PW3, Jaskaran Singh inflicted blows from reverse (blunt) side of the said weapon which is unlikely. In support of this contention, reference has been made to judgment of Hon'ble Supreme Court in Bhola Singh vs. State of Punjab, 1999(1) Recent Criminal Reports, 216. Counsel for the appellants also Criminal Appeal No. 924-SB of 2003 -7- submitted that accused Sukhdev Singh and Jaskaran Singh were armed with sharp edged deadly weapons and they would have killed the complainant and would not have spared him and therefore, the prosecution version is not reliable. It was also pointed out that according to the prosecution version, at the time of arrest four days after the occurrence, Gurmit Singh and Jaskaran Singh accused were carrying their weapons with them which is unlikely. It was also canvassed that father of the injured-complainant who had taken the injured to hospital has not been examined as witness by the prosecution. It was lastly contended that offence under section 307 IPC is not made out because there was no intention to kill the complainant. In this context, it was pointed out that only one injury was caused with sharp weapon and x-ray of skull did not reveal any bony injury. Reliance in support of this contention has been placed on judgment of Division Bench of this Court in State of Punjab vs. Parveen Kumari and ors., 1991(3) 422. Prayer for reduction in sentence was also made by counsel for the appellants. On the other hand, learned State counsel contended that statements of injured complainant Raja Singh and eye witness Beet Singh are sufficient to prove the prosecution case because the injured complainant would not have spared the real culprits and would not have implicated the accused in a false case. The injured would not have allowed the real culprits to go scot free. It was also argued that three injuries were caused on head/forehead of the complainant i.e. on vital part and the injuries were Criminal Appeal No. 924-SB of 2003 -8- inflicted with force. Injury no. 1 was inflicted with sharp weapon and resulted in compound fracture of skull. The said injury has been opined to be dangerous to life. It was, thus, contended that in view of all the circumstances case falls within the purview of section 307 IPC. Prayer for reduction in sentence has also been opposed by learned State counsel. I have carefully considered the rival contentions. Injured complainant Raja Singh, PW2 and eye witness Beet Singh, PW3 have categorically stated that all the three accused caused injuries to the complainant in the manner alleged by the prosecution. Their statements could not be impeached in cross-examination. On the contrary, their statements are corroborated by medical evidence. Injured complainant would not have allowed the real culprits to go scot free so as to implicate the accused in a false case without any rhyme or reason. Motive for the occurrence has in fact been admitted even by the accused themselves. It is the prosecution case that accused Sukhdev Singh, who is uncle of the remaining two accused, suspected that the complainant was having some affair with his (Sukhdev Singh's) daughter. The accused themselves have also alleged that the complainant had teased the daughter of Sukhdev Singh. Thus, motive for the occurrence was also there. Defence version as stated by two defence witnesses does not inspire confidence. One defence witness is daughter of accused Sukhdev Singh himself. Injury no. 1 suffered by the complainant was not likely to be caused in thrashing of the injured by the villagers in the manner alleged Criminal Appeal No. 924-SB of 2003 -9- by the accused. Even if iron strip or sheet was lying on the ground and the complainant during the occurrence fell on it, it would not have caused injury no. 1 mentioned hereinbefore. In that event, only flat surface of iron strip or sheet would have hit the complainant which could not cause injury no. 1 suffered by the complainant. In so far as offence under section 307 IPC is concerned, the same is also fully made out from the prosecution evidence. Dr. H.N.Singh has categorically opined that injury no. 1 suffered by the complainant was dangerous to life on account of compound fracture of skull. In the MLR, it was mentioned that the said incised wound was bone deep and underlying bone was cut. The injury was opined to be grievous in nature in the MLR itself. On subsequent dates, the said injury was opined to be dangerous to life. The said injury was caused with sharp edged weapon. It was caused on vital part of the complainant. The said injury was inflicted with great force as it resulted in underlying bone being cut. Injuries no. 2 and 3 were also caused on the head. It is, therefore, apparent that intention of the accused was to murder the complainant. They also had the knowledge that injuries being caused by them could cause death of the complainant. Judgment in the case of Parveen Kumari (supra) is completely distinguishable on facts. In that case, a single shot was fired from revolver causing only simple injury and that too on non-vital part of the victim. The shot was not repeated although there were three more bullets in the revolver. In the case in hand, however, in all seven injuries were caused to the Criminal Appeal No. 924-SB of 2003 -10- complainant including three injuries on the vital parts. Injury no. 1 was grievous in nature caused with sharp weapon resulting in compound fracture of scalp. Thus, judgment in Parveen Kumari's (supra) is not at all attracted to the facts of the instant case. The contention that as per Dr. RK Gupta, PW4 no bony injury was found in x-ray skull and therefore, injury no. 1 was not grievous is misconceived and untenable. Dr. H.N.Singh has mentioned in the MLR itself that at the time of medico-legal examination of the complainant itself, injury no. 1 was found to be grievous in nature and underlying bone was cut. Consequently, the said injury was not advised x- ray examination. Only injuries no. 2 and 3 were advised x-ray examination. Consequently, Dr. RK Gupta radiologically examined the injured complainant for injuries no. 2 and 3 only and not for injury no. 1. The report Ex. PG clearly states that x-ray skull was done only for injuries no. 2 and 3 and there was no evidence of bony injury. Thus, his report refers to absence of bony injury qua injuries no. 2 and 3 and not qua injury no. 1. Cut of underlying bone of injury no. 1 was declared grievous in nature as mentioned in the MLR itself and therefore, x-ray examination was not required to determine the said fracture. Thus, it cannot be said that there was no bony injury to the complainant at all. On the contrary, reading of testimony of Dr. RK Gupta coupled with his report Ex. PG, it is manifest that there was no bony injury when injuries no. 2 and 3 were examined but from the testimony of Dr. HN Singh, it is manifest that injury no. 1 was compound fracture of scalp as underlying bone was cut. Criminal Appeal No. 924-SB of 2003 -11- Delay in lodging of FIR has been satisfactorily explained. Injured complainant was not fit to make statement on 14.5.1999, the date of occurrence on account of said injury. On the next day, he was found to be fit to make statement and immediately his statement was recorded and FIR was registered. Statement of Beet Singh eye witness could not be recorded to register FIR because police was not aware that Beet Singh was eye witness of the occurrence. Thus, it cannot be said that there has been any unexplained delay in lodging the FIR. Beet Singh did not take the injured to the hospital because father of the injured arrived and took the injured to the hospital. There has also not been any abnormal delay in sending the FIR to Illaqa Magistrate because it was not the case of special report to be sent immediately through special messenger. On the other hand, the case was initially registered under sections 326 and 323 read with section 34 IPC only. The FIR was registered on 15.5.1999 and it reached the Illaqa Magistrate on 17.5.1999 at 10.00 AM. It was Sunday on 16.5.1999. Consequently, there has been no delay in sending copy of FIR to Illaqa Magistrate. Recovery of weapon from the accused has been proved by the statements of Sham Sunder, Head Constable, PW6 and ASI Baldev Singh, PW10. Consequently, non-examination of Sant Singh, Chowkidar is not of much significance. It may be mentioned that Sant Singh was not cited as witness in the list of witnesses. For this lapse on the part of the Criminal Appeal No. 924-SB of 2003 -12- Investigating Officer, the accused cannot be acquitted. Moreover, recovery of weapons is also not much significance when there is direct ocular evidence of the occurrence. Two witness of the said recovery have been examined by the prosecution. Consequently, adverse presumption cannot be drawn against the prosecution merely for non-examination of Chowkidar. On the other hand, in the case of Dilboo (supra) even party to the suit had not appeared in the witness box and relevant witness had also not been examined. Thus, the said judgment has no applicability to the facts of the case in hand. Non-mentioning of names of all assailants in the MLR also cannot be said to be fatal to the prosecution case. Perusal of MLR Ex. P8 reveals that there is no column therein regarding history or summary of occurrence. In the case of Rehmat (supra) this was not the only reason for acquitting the accused. On the contrary, in that case, 13 injuries including 7 lacerated wounds were found on the person of the accused but the prosecution failed to explain the same. Thus, judgment in the case of Rehmat (supra) is also distinguishable on facts. The fact that accused Jaskaran Singh inflicted blows from reverse side of takua would also not be sufficient to acquit the accused because Sukhdev Singh inflicted blow from sharp side of the sword resulting in injury dangerous to live of the complainant. Thus, it cannot be said that sharp side of the weapon was not at all used in the occurrence. In Criminal Appeal No. 924-SB of 2003 -13- the case of Bhola Singh (supra) on post mortem examination, injuries were found to have been caused with blunt weapon. Accordingly, eye witnesses stated that the accused who were armed with sharp weapons used the same from blunt side. It was observed that eye witnesses set out their version only to fit in with the finding of post mortem report. However, it cannot be said so in the case in hand. The fact that the complainant survived and was not killed does not in any manner demonstrate that the prosecution version is not reliable in any manner. Similarly the fact that accused Gurmit Singh and Jaskaran Singh were carrying their weapons when arrested by the police after four days would not cause any dent to the prosecution case because as already noticed hereinbefore, recovery of weapons is not of much significance. Moreover, Gurmit Singh was carrying lathi and Jaskaran Singh was carrying takua which are ordinarily carried by villagers in rural areas. Non examination of father of the complainant as prosecution witness has no bearing on the prosecution case at all. He could not have deposed anything about the occurrence or the guilt of the accused. It remains a fact that the complainant had been taken to hospital by his father as mentioned in the MLR also. MLR also reveals that the injured reached hospital at 10.30 AM i.e. soon after the occurrence. In these circumstances, there is no necessity of examining father of the complainant as witness. For the reasons aforesaid, I find that the prosecution evidence is credible and sufficient to prove guilt of the accused beyond reasonable Criminal Appeal No. 924-SB of 2003 -14- doubt. Their conviction by the trial court is well founded. Accordingly, conviction of the accused-appellants is affirmed. As regards quantum of sentence, the occurrence took place on 14.5.1999 i.e. 12½ years ago. During this long period, the accused have faced the agony of trial including the instant appeal. In view of lapse of this long period, the appellants deserve some reduction in sentence. It has also to be added that convict Sukhdev Singh who is guilty of substantive offence under section 307 IPC has to be dealt with differently than the remaining two accused who have been convicted for the said offence with the aid of section 34 IPC and therefore, they deserve some leniency in the matter of sentence as compared to accused Sukhdev Singh. Keeping in view all the circumstances, I am of the considered opinion that ends of justice would be met if the sentence of imprisonment awarded to accused Sukhdev Singh under section 307 IPC is reduced to rigorous imprisonment for four years and sentence of imprisonment of the remaining two accused for offence under section 307 IPC read with section 34 IPC is reduced to rigorous imprisonment for two and half years each while maintaining the sentence of find and the sentence of imprisonment in default thereof for all the three appellants for the said offence and also while maintaining sentence of all the appellants under section 323/34 IPC. It is ordered accordingly. Obviously, both the substantive sentences of each appellant shall run concurrently. With reduction in the sentence as aforesaid, the instant criminal Criminal Appeal No. 924-SB of 2003 -15- appeal stands disposed of accordingly. The appellants who are on bail shall surrender to their bail bonds or shall be arrested to undergo the remaining sentence. ( L.N. Mittal ) November 04, 2011 Judge 'dalbir'