Criminal Appeal No. 134-SB of 1995 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 134-SB of 1995 Dated of Decision: 01.04.2009 1. Darshan Singh son of Buta Singh, aged 22 years, Labourer, resident of Rasulpur, Tehsil Jagron, District Ludhiana. 2. Buta Singh son of Nazazar Singh (since demised), aged 50 years, resident of Rasulpur, Jagron, Ludhiana. 3. Tarsem Singh (Tari) son of Buta Singh, aged 20 years, Labourer, resident of Rasulpur, Jagron, Ludhiana. ... Appellants Versus The State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. D.K. Kaushal, Advocate, Amicus Curiae, for Darshan Singh, appellant No. 1. Buta Singh, appellant No. 2, (since demised). Mr. B.S. Sidhu, Advocate, for Tarsem Singh, appellant No. 3. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for the respondent – State. 1 Criminal Appeal No. 134-SB of 1995 SHAM SUNDER, J. * * * * This appeal is directed against the judgement of conviction and the order of sentence, dated 27.01.95, rendered by the Court of Additional Sessions Judge, Ludhiana, vide which, it convicted the accused (now appellants), and sentenced them, as under:- Names of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 (a) Darshan Singh (i) Under Section 307 of the Indian Penal Code. To undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 2000/-, in default thereof, to further undergo rigorous imprisonment for a period of four months. (b) (c) Tarsem Singh Buta Singh (ii) Under Section 307 read with Section 34 of the Indian Penal Code. To undergo rigorous imprisonment for a period of four years each and to pay a fine of Rs. 2000/- each, in default thereof, to further undergo rigorous imprisonment for a period of four months each. 2. The facts, in brief, are that on 19.11.92, at about 6.30 PM, Dilbagh Singh, and his brother namely Amrit Pal Singh, were bringing down the dry paddy, from the roof of their house, when in the meantime, Sema alias Tarsem Singh son of Buta Singh, called on his 2 Criminal Appeal No. 134-SB of 1995 (Dilbagh Singh’s) brother telling him that he was wanted by Darshan Singh, as he wanted to settle the account of money. It was stated that Amrit Pal Singh, was paledar at the relevant time. Amrit Pal Singh, accompanied Tarsem Singh. Dilbagh Singh, also followed them. When Amrit Pal Singh, reached near the house of Saudagar Singh son of Dogar Singh, in the area of Rasuplur, Darshan Singh, armed with spade (kahi), gave a blow with its reverse side, on his head, as a result whereof he fell down. Darshan Singh, and his father Buta Singh, tried to drag Amrit Pal Singh, to their house. In the meanwhile, two other brothers of Amrit Pal Singh, namely Jugraj Singh, and Pappu, came there. Dilbagh Singh, raised alarm, as a result whereof, all the accused decamped from the scene of occurrence. Dilbagh Singh, got his brother Amrit Pal Singh, admitted in the hospital, where he was medico-legally examined. On the basis of the statement made by Dilbagh Singh, on 22.11.92, to the Police, narrating the aforesaid occurrence, the first information report was registered. The investigation was conducted by the Investigating Officer. The accused were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Section 307 of the Indian Penal Code, against Darshan Singh, accused, and under Section 307 read with Section 34 of the Indian Penal Code, against Tarsem Singh, and Buta Singh, accused, was framed, which was read-over and explained to 3 Criminal Appeal No. 134-SB of 1995 them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dr. Balbir Singh Bhatia, Senior Medical Officer, Jagraon Civil Hospital (PW1), Dr. Hari Krishan Singla, E.M.O, Civil Hospital, Jagraon (PW2), Dilbagh Singh, complainant-cum-eye witness (PW3), Amritpal Singh, injured (PW4), Sukhwinder Singh, draftsman, Civil Courts, Jagraon (PW5), and Sub Inspector Gulzar Singh (PW6), the Investigating Officer. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Darshan Singh, accused, in his statement under Section 313 of the Code of Criminal Procedure, stated that he was having one sister Karamjit Kaur, aged about 18/20 years, at the relevant time. Amrit Pal Singh, used to molest her. It was further stated by him that Sema, accused, objected to it, and snubbed him for his activities. It was further stated by him that Amrit Pal Singh, ran from the spot, as a result whereof his head struck against the wall, and an old injury which he had suffered, in the past, revived. He further stated that he and his co-accused were falsely implicated. 6. Accused Tarsem Singh, and Buta Singh, in their statements under Section 313 of the Code of Criminal Procedure, also took up the same plea, as was taken up by Darshan Singh, accused. The accused, however, examined Dalip Singh (DW1), in their defence. 7. During the pendency of appeal, Buta Singh, appellant No. 4 Criminal Appeal No. 134-SB of 1995 2, died and the proceedings against him stood abated, vide order dated 07.05.07, passed by this Court. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 9. Feeling aggrieved, the instant appeal, was filed by the appellants. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellants, at the very outset, submitted that there was an unexplained delay of three days, in lodging the first information report. They further submitted that this delay was utilized for concoction of story, false implication of the accused, and introduction of false witnesses. The occurrence, in this case, took place on 19.11.92, at 6.30 PM. The injured was medico-legally examined at 8.30 PM on 19.11.92, in the hospital. The injured was unconscious when he was brought to the hospital, as is evident from the medical evidence, provided by the doctors. The Police was immediately informed with regard to the admission of the injured, with injury on his head. The Police reached the hospital, and moved an application PB, on 20.11.92, seeking the opinion of the doctor, if the injured was in a position to make statement. Vide endorsement PB/1, Amrit Pal Singh, injured, was declared unconscious and, as such, unable to make statement. Thereafter, also on 21.11.92, the Police moved an application PC, seeking the opinion of the doctor, as to whether, the injured was fit to make statement . The doctor, vide endorsement PC/1, 5 Criminal Appeal No. 134-SB of 1995 declared that the injured was unable to make statement, as he was still lying unconscious. Thereafter, on 22.11.92, the statement of Dilbagh Singh, the brother of the injured was recorded. Dilbagh Singh, in his statement, stated that he had to leave the hospital, as he had to make arrangements for money. He further stated that he went to his various relations, in different villages, for collection of money and came to the hospital on 22.11.92, and the Police recorded his statement on that day. It is a matter of common knowledge, that the first and foremost concern of the kith and kin of an injured, is to provide him the best medical aid, so as to save his life. Only after the kith and kin are assured that the life of the injured was out of danger, that they could think of lodging a report. For treatment, the money is required. Since according to Dilbagh Singh, he was not having money, he had to contact his near relations, to arrange money, for the treatment of the injured. This process must have taken sufficient time. In view of the aforesaid circumstances, the delay in lodging the first information report occurred. The delay, therefore, stood explained. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that no offence, punishable under Section 307 of the Indian Penal Code, was made out, in the instant case. In State of Maharashtra Vs. Balram Vama Patil (AIR 1983 S.C. 305), it was held that to convict under Section 307 of the Indian Penal Code, it is not necessary, to show that the bodily injury capable of causing death was inflicted, but 6 Criminal Appeal No. 134-SB of 1995 what the Court has to see, is as to whether, the act irrespective of its result, was done with the intention or knowledge and, under such circumstances, mentioned in this Section. Attempt need not be an ultimate act. It is sufficient, if there is an intent, coupled with some over-tact, in execution thereof. To prove that the act was done, by the accused, with the intention or knowledge, and, under such circumstances, mentioned in this Section, the Court is to look to the part of the body, on which, the injury was caused; the nature of injury caused; and the weapon being wielded by the accused for causing such injury. In the instant case, a spade (kahi) blow with the reverse side, on the head of Amrit Pal Singh, injured , was given, as a result whereof the following injury, was found by Dr. Balbir Singh Bhatia (PW1):- (i) Lacerated wound 5 cm X 1 cm x 1/2 cm, on the top portion of the head i.e. on left parietal bone at anterior third and 2 cm left to median line. Advised X-ray. Patient was unconscious. Blood from nose right side was coming. The head being very vital part of the body, while causing injury on the same with the reverse side of the spade (kahi), Darshan Singh, accused, very well knew, as to what consequences, were likely to ensue, on account of such injury. Amrit Pal Singh, was referred to Civil Hospital, Ludhiana, for X-ray examination. The X-ray examination of the injured was conducted. In the X-ray examination, fracture of temporal and parietal bone was found. The injured remained unconscious for seven days. After receipt of X-ray report, the injury, on the head of the injured was declared dangerous to life. Dr. Balbir Singh Bhatia, stated that had the injured been not immediately brought to the hospital, and 7 Criminal Appeal No. 134-SB of 1995 had proper treatment been not given to him, he would have died due to the injury. He proved his report PF/2, declaring the injury, to be dangerous to life. Under these circumstances, it could not be said that no offence, punishable under Section 307 of the Indian Penal Code, was constituted. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 13. In his statement, under Section 313 of the Code of Criminal Procedure, a plea was taken by the accused, that Amrit Pal Singh, used to molest Karamjit Kaur, sister of Sema @ Tarsem Singh, and when he snubbed him for his such activities, he (Amrit Pal Singh) ran way and struck against the wall, as a result whereof, the old injury, which he had suffered, revived, and they were falsely implicated. It may be stated here, that such a defence, is nothing, but a concocted one, as would be discussed hereinafter. During the course of cross-examination of Dr. Balbir Singh Bhatia, PW1, no suggestion was put to him that Amrit Pal Singh, had received an old injury, on his head, and he struck against the wall, resulting into revival of the same. In case, such a defence was available to the accused, right from the very beginning, a suggestion could be put, to this doctor. Dr. Balbir Singh (PW1) stated that duration of injury was within 6 hours, meaning thereby that it was fresh. Even no other doctor, was examined, in defence by the accused, to prove this factum. It appears that Amrit Pal Singh, was having no old injury on his head, which revived, when he allegedly ran away and struck against the wall. No doubt, Dalip Singh, was examined as DW1, by the 8 Criminal Appeal No. 134-SB of 1995 accused, to prove their plea. It was stated by him that Amrit Pal Singh, in a drunkard condition, misbehaved with the daughter of Buta Singh, accused, and when he ran away he struck against the wall, as a result whereof, an old injury, on his head revived. Dr. Balbir Singh (PW1) medico-legally examined Amrit Pal Singh, within 2 hours of the occurrence. He did not find that Amrit Pal Singh, was smelling of alcohol. During the course of cross-examination, it was stated by Dalip Singh that he never complained to the higher Police authorities, that no such injury was caused by Darshan Singh, on the person of Amrit Pal Singh, on 19.11.92. Had the occurrence not taken place, in the manner, deposed to by the prosecution witnesses, a complaint would have certainly been made by Dalip Singh, DW1, to the Police authorities, regarding the false implication of the accused. The defence plea, besides being falsified from the statement of Dr. Balbir Singh (PW1) is also an afterthought. The evidence of Dalip Singh, DW1, being unreliable, on account of the aforesaid reasons, was rightly disbelieved and discarded by the trial Court. This Court, after reappraisal of the evidence, also comes to the same conclusion. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 14. The next question, that arises for consideration is, as to which of the accused, participated in the occurrence. So far as the participation of Darshan Singh, accused, in the commission of crime, is concerned, the same is proved from the evidence of Dilbagh Sigh, eye- witness and Amrit Pal Singh, injured. Amrit Pal Singh, stated that 9 Criminal Appeal No. 134-SB of 1995 Darshan Singh, gave a spade (kahi) blow from the reverse side on his head. Dilbagh Singh, also corroborated the same. However, no role, whatsoever, was played by Tarsem Singh, in the alleged commission of crime. According to the prosecution story, he only called Amrit Pal Singh, from his house. He did not cause any injury, on the person of Amrit Pal Singh. He did not take him into his grip, so as to restrain his movements, to facilitate the causing of injury on his person by Darshan Singh, accused. He also did not commit any over-tact, at the time of occurrence. He, thus, did not share common intention with his co- accused. The mere fact that he was allegedly present, at that time, did not make him liable for any offence. The participation of Tarsem Singh, in the commission of crime was, thus, highly doubtful. Out of abundant caution, he is required to be given the benefit of doubt. The trial Court, was wrong, in recording conviction of Tarsem Singh, accused. Tarsem Singh, appellant, is, thus, entitled to acquittal. 15. No other point, was urged, by the Counsel for the parties. 16. For the reasons recorded above, the appeal filed by Darshan Singh, appellant, being devoid of merit, is dismissed. The judgement of conviction and the order of the sentence, rendered by the trial Court, qua him, are upheld. Bail order dated 20.03.95 and the bail bonds of Darshan Singh, appellant, are cancelled. 17. The appeal filed by Tarsem Singh, appellant, is accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, qua him, are set-aside. He shall stand acquitted of the charge framed against him. If he is on bail, he shall stand discharged of his bail bonds. If he is in custody, he shall be set at liberty, at once, if 10 Criminal Appeal No. 134-SB of 1995 not required in any other case. 18. The appeal filed by Buta Singh, as stated above, already stood abated, on account of his death, during the pendency thereof. 19. The Chief Judicial Magistrate, is directed to take necessary legal steps to ensure that Darshan Singh, appellant, whose appeal has been dismissed, is got arrested immediately and sent to jail, to undergo the sentence awarded to him by the trial Court, and affirmed by this Court, subject to the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within a period of two months. 20. The Senior Superintendent of Police, Ludhiana (Rural) Headquarters, Jagraon, is directed to ensure that Darshan Singh, appellant, whose appeal has been dismissed, is arrested promptly, and produced before the Court of the Chief Judicial Magistrate, Ludhiana, so that, he could be sent to jail, to undergo the sentence, awarded to him, by the trial Court, and affirmed by this Court. He is further directed to submit the compliance report within two months. 21. The Principal Secretary (Home), Punjab, and the Director General of Police, Punjab, are directed to ensure that the directions of the Court, are complied with, by the Senior Superintendent of Police, Ludhiana (Rural) Headquarters, Jagraon, in letter and spirit. If the convict like Darshan Singh, who was convicted by the trial Court, for a heinous offence, and whose conviction and sentence have been affirmed by this Court, roams about freely, then there will be complete lawlessness in the society. The orders of the Court, are required to be obeyed by the Police, and all other authorities, strictly. They are further 11 Criminal Appeal No. 134-SB of 1995 directed to submit the compliance reports, within two months. If the compliance reports are not received, within the stipulated period, the Principal Secretary (Home), Punjab, the Director General of Police, Punjab, and the Senior Superintendent of Police, Ludhiana (Rural) Headquarters, Jagraon, shall be personally responsible, and further action, in accordance with the provisions of law, shall be initiated. 22. The District & Sessions Judge, Ludhiana, is directed to ensure that the directions aforesaid, are complied with, by the Chief Judicial Magistrate, the Principal Secretary (Home), Punjab, the Director General of Police, Punjab, and the Senior Superintendent of Police, Ludhiana (Rural) Headquarters, Jagraon, and the compliance reports, are submitted within two months. 23. The Registry is directed to keep track, and submit the compliance reports before this Court, as and when received. Even if, the compliance reports are not received, within the stipulated period, the paper shall be put up, for further appropriate action, in the matter. 24. The Registry, is further directed to send copies of the judgement, to the quarters concerned, promptly, for due compliance. 01.04.2009 (SHAM SUNDER) AMODH JUDGE 12