Criminal Appeal No.1028-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1028-SB of 1998 Date of decision : 17.9.2008 Bogha Singh .....Appellant Versus State of Punjab ...Respondent Criminal Revision No. 507 of 1999. Sukhdev Singh ....Petitioner Versus Malkiat Singh and others ....Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. T.S.Sangha, Senior Advocate with Mr. J.S. Lalli, Advocate for the appellant in Criminal Appeal No.1028-SB of 1998 and for the petitioner in Criminal Revision No. 507 of 1999 Ms. Manjari Nehru, Deputy Advocate General, Punjab None for the respondents in Criminal Revision No.507 of 1999. **** S. D. ANAND, J. The appellant (Bogha Singh) was convicted by the learned Trial Judge for offences under Sections 307 and 325 IPC. For the former offence, he was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5000/-; while, for the latter offence, he was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/-. The substantive sentences were ordered to run Criminal Appeal No.1028-SB of 1998 -2- **** concurrently. Appellant Bogha Singh was prosecuted in case FIR No. 67 dated 23.4.1989 under Sections 307,325, 324,323,34,120-B IPC, Police Station Mansa, alongwith three others i.e. Bikkar Singh son of Sukhdev Singh, Jagga Singh son of Sukhdev Singh and Sukhdev Singh son of Kirpal Singh. Out of them, Bikkar Singh died during the trial. Jagga Singh was independently tried as a juvenile delinquent. Sukhdev Singh earned a verdict of acquittal. There is no plea by the State to obtain invalidation of finding of acquittal. The prosecution plea, upheld at the trial, was that the appellant ( alongwith his above named three co-accused) belaboured the first informant- Jagdish Singh and Jaswant Singh. The backdrop of the facts, culminating in the impugned occurrence was as under:- Kirpal Singh, paternal grand father of PW-1 Jagdish Singh, had two sons namely Sukhdev Singh (father of Bogha Singh) and Jaswant Singh. His 3rd son Ajaib Singh had already died. Kirpal Singh gave five killas of land to Jagdish Singh and latter's brother Malkiat Singh and an equal area of land was given to Binder Singh and his mother Surjit Kaur, being the son and widow of Ajaib Singh. Five killas of land was given by Kirpal Singh to Sukhdev Singh, by means of a Civil Court decree. Kirpal Singh retained 4-1/2 killas of land with him. He had been living with the family of Jagdish Singh which rendered services to him. Sometime before his death, Kirpal Singh executed a registered will ( in respect of 4-1/2 killas of land Criminal Appeal No.1028-SB of 1998 -3- **** retained by him) in favour of Jaswant Singh. The validity of that will was challenged by Sukhdev Singh and Binder Singh. The relevant proceedings were pending at the time of impugned occurrence, though the complainant party was in possession of aforementioned 4-1/2 killas of land. Appellant Bogha Singh, Sukhdev Singh and Bikkar Singh were inclined to enter into forcible possession of that land where wheat crop had been sown by Jagdish Singh and his family. The accused and his co-accused had otherwise had been announcing that they would not allow the complainant party to irrigate that land. On 22.4.1989, at about 7.00 A.M., Sukhdev Singh announced to his son Bikkar Singh and Bogha Singh that complainant party should not be spared and that he would arrange the money required for defending them. At about 10.30 A.M. Jagdish Singh and his father left for the fields in order to irrigate the land. Malkiat Singh was told to bring meals for them in the field. On reaching their agricultural holding, Jagdish Singh and his father found that appellant Bogha Singh and Bikkar Singh were available over there. They were carrying a Gandasa each. Their servant Jagga Singh son of Katu Singh was also over there and was carrying a Gandasa and called up Jagdish Singh and his father to indicate why they had come over there to irrigate the fields when they had earlier been told to desist from doing so. However, Jagdish Singh proceeded to irrigate the fields at about 10.45 A.M.; while his father stood nearby. Bikkar Singh raised a lalkara that the appellant side Criminal Appeal No.1028-SB of 1998 -4- **** only would obtain the land of Kirpal Singh and that the complainant party should be taught a lesson for having tried to irrigate that land. Bogha Singh appellant and Bikkar Singh gave a gandasa blow each on the head of Jaswant Singh who fell down upon the ground and raised a raula. Jagga Singh hurled a gandasa blow towards the head of Jagdish Singh which the latter warded off by raising his arms. He received that Gandasa blow on the lower right arm which got fractured on account thereof. Jagdish Singh also raised a raula. In the meantime, Malkiat Singh (brother of Jagdish Singh PW-1) also reached there, while he was carrying meals for his father ( and brother). He also raised a raula in order to invite help to protect his father and brother. However, Jagga Singh gave two more Gandasa blows on the left left of Jagdish Singh when the latter was lying upon the ground. One out of two blows was given from the blunt side and other from the sharp side. Bogha Singh appellant and Bikkar Singh also gave two sharp side Gandasa blows on the lower right leg of Jagdish. Thereafter, Bogha Singh appellant and other caused injuries to Jaswant Singh from the blunt side of Gandasa. Then, Bogha Singh also gave blunt side gandasa blow on the left upper arm which got fractured thereby. Appellant Bogha Singh and his associates fled the spot thereafter. The offence was notified to the police by PW-1 Jagdish Singh, vide FIR Ex. P2. The ocular presentation, in respect of impugned occurrence, was made by PW-1 Jagdish Singh and PW-2 Jaswant Criminal Appeal No.1028-SB of 1998 -5- **** Singh. PW-3 Amarjit Singh, an official from the Canal Department, made a record-based statement indicating the turn of water in the context. PW-4 Dr. Rameshwar Chander, Chief Medical Officer, had medico-legally examined Jagdish Singh and Jaswant Singh and found the following injuries on their person:- Jagdish Singh:- “1. Right forearm was swollen in the lower and proximal part of hand. Advised X-ray. 2. Incised wound on the right leg anterior aspect just below tibal Tuberoity, 2.5 cms X 1 cm skin deep. Fresh bleeding was present. X-ray advised. 3. Incised wound 2.5 cm X 1 cm skin deep situated 4 cms below injury No. 1. Advised X-ray. Fresh bleeding was present. 4. Incised wound 2.5 cms X 1 cm situated below injury No. 3 by 2 cms. Fresh bleeding was present. Advised X-ray. 5. Incised wound 2 cms below injury no. 4 on the anterior aspect 1.5 cms x 1 cm skin deep. Fresh bleeding was present. Advised X-ray. 6. Incised wound 2 cms above the ankle joint 1.5 cms x 1 cm skin deep advised X-ray. Jaswant Singh: Criminal Appeal No.1028-SB of 1998 -6- **** “1. Incised wound on the left side of the vertex close to hair line 5 cms X 2 cms bone expose fresh bleeding was present. X-ray was advised. 2. Incised wound on the vertex in the middle on left side 8 cms X 3 cms bone expose, fresh bleeding was present. X-ray was advised. 3. Swelling of right hand on the dorsel aspect 5 cms X 4 cms over it there was small lacerated wound. X- ray was advised. 4. The left arm was swollen as a whole creptus was present. X-ray was advised” On 22.4.1989, Dr. Rameshwar Chander informed the police (vide his endorsement Ex. PH/1 on police plea Ex. PH) that Jagdish Singh and Jaswant Singh were unfit to make a statement. They were declared fit to make a statement on 23.4.1989, vide endorsement Ex. PG/1 which Dr. Rameshwar Chander made on police plea Ex. PG. PW-5 ASI Iqbal Singh is the Investigating Officer of this case. PW-6 Randhir Singh, Patwari Halqa, had prepared a site plan Ex. PW6/A on 8.3.1990 ,on the pointing of Jagdish Singh PW-1. Appellant Bogha Singh denied the prosecution allegations and averred as under:- “Kirpal Singh gave three killas of land out of his 4-1/2 killas of land to Sukhdev Singh and he gave 1-1/2 killa to Criminal Appeal No.1028-SB of 1998 -7- **** Binder Singh. This entire land was in our possession and wheat crop was sown by us. On 22.4.89, at about 11/11.30 A.M. I alongwith my brother Bikkar Singh and my servant Jagga Singh were harvesting the wheat crop. Bikkar Singh had gone to take bring pitcher of water and there Malkiat Singh and Jagdish Singh armed with gandassas and Jaswant Singh armed with came there with Kirpan and Malkiat Singh raised Lalkara, that he would not be allowed to harvest the wheat crop and thereafter Malkiat singh gave gandasa blow on the right hand of mine. Jagdish Singh gave a gandasa blow on my left elbow and Jagga Singh tried to intervene and raised alarm, then Jaswant Singh accused gave a Kirpan blow on his right hand and his little finger was cut. Bikkar Singh came running to the spot and heard the cries of Jagga Singh and mine. Bikkar Singh threw the pitcher and came to rescue us on which the accused ran away. We were removed to C.H. Maur by Hakam Singh but doctor was not available there and then we were taken to C.H., Bhatinda, where we were medically examined and treated. Jaswant Singh etc. wanted to take forcible possession of the land and due to this grudge they have inflicted us injuries and involved us in this false case. Malkiat Singh etc. are facing trial in this Court.” Appellant Bogha Singh stepped into the witness box, as Criminal Appeal No.1028-SB of 1998 -8- **** his own witness, as DW-1. In the course thereof, he testified on oath that his grand father Kirpal Singh had executed a will in favour of former's father Sukhdev Singh to the extent of (2/3rd share) and Binder Singh (to the extent of 1/3rd share). He further testified that complainant party was in possession of that land and had sown wheat crop in it. It is also in his statement that, in the course of an occurrence which had taken place about nine years ago, the appellant party had belaboured the complainant party. Sukhdev Singh had filed a private complaint in respect of that occurrence. Sukhdev Singh, Jagga Singh and Dr. Hardev Singh had appeared as prosecution witnesses in that case. He tendered into evidence Ex. D1 to Ex. D8, which are copies of statements made by the aforesaid persons and also certified copy of the complaint and MLR. Learned counsel for the appellant argues that investigation of the case had not been conducted in fair and appropriate manner inasmuch as the investigating agency did not, at all, act on the grievance of the appellant that he and members of his party had also sustained injuries in the course of the impugned occurrence and that the injuries had been caused to them by members of the complainant party. It requires to be noticed, at the very outset, that the ocular presentation in the statements of Jagdish Singh and Jaswant Singh is completely in accord with the medical presentation in the statement of Dr. Rameshwar Chander. There is no proof that the injuries found on the person of Jagdish Singh and Jaswant Singh Criminal Appeal No.1028-SB of 1998 -9- **** could have been self-suffered or caused by a friendly hand. The facts available on the record are a conclusive pointer to the effect that the appellant did inflict the injuries attributed to him and he, in that context, was actuated by the inclination to enter into forcible possession of 4-1/2 killas of land which is in possession of the complainant party, in terms of a registered will executed by Kirpal Singh, grand father of Jagdish Singh. Insofar as the injuries on the person of Bogha Singh are concerned, those had been held by the learned Trial Court to be self- suffered. There are no circumstances enabling this Court to differ with that finding. The finding of indictment recorded by the learned Trial Judge is relate-able to the material obtaining on the file and I have not been persuaded to take a view different from the one obtained by the learned Trial Judge in the facts and circumstances of the case. In that very context, it requires pertinent notice that there was no delay in the notification of the offence to the police, the medical evidence is fully supportive of the ocular version and there is nothing on the file to indicate that the injuries on the person of Jagdish Singh and Jaswant Singh could be self suffered in character. In the light of the fore-going discussion, I do not find any merit in the appeal which shall stand dismissed on the point of conviction. However, I do find force in the plea of learned counsel for the appellant that order on point of sentence calls for dilution in view of the fact that impugned occurrence had taken place in the Criminal Appeal No.1028-SB of 1998 -10- **** year 1989 and the appellant faced the ordeal of trial for a period of little more than nine years and even the present appeal has been pending for the last about more than ten years. In the circumstances of the case, the sentence awarded to appellant Bogha Singh for the offence under Section 307 IPC is reduced to rigourous imprisonment for two years. Except with regard to that modification on point of sentence, qua the offence under Section 307 IPC the appeal is held to be devoid of merit and is ordered to be dismissed. Criminal Revision No. 507 of 1999 has been filed by Sukhdev Singh who earned a verdict of acquittal in the above noted case but had filed a private complaint, as a cross case. That private complaint was dismissed by the learned Trial Judge. The grievance of the petitioner in that case is that the presentation made by him had been invalidated for reasons which are inappropriate in character. It would be apparent from a perusal of the impugned order that the learned Trial Judge recorded a finding of facts in the following terms:- “I have carefully considered the evidence on the file and first of all it would be evident that Sukhdev Singh, complainant is neither an eye witness, nor he was present on the spot at the time of alleged occurrence. A perusal of the statement of PW-1 Sukhdev Singh shows that he has given the evidence, as if he was present on the spot, but it is not so. In deed, there was a dispute in between Criminal Appeal No.1028-SB of 1998 -11- **** the parties over a piece of land which was left by Kirpal Singh father of Sukhdev Singh complainant and some occurrence had taken place on 22.4.1989, but in that occurrence the complainant was not present. It is relevant to add that a cross-case under Sections 307/325/324/323/34/120-B IPC was registered against Bogha Singh, Bikkar Singh sons of Sukhdev Singh and Jagga Singh son of another Sukhdev Singh for causing injuries to the accused party and it is also a matter to take a judicial notice that the other case has been decided today separately and in this case Bogha Singh has been convicted under Sections 3-07/325 IPC, while Sukhdev Singh has been acquitted of the charge, since he was not present on the spot. For the purpose of facilitating and to understand the actual position, a copy of the judgment in the other case is also being placed on record of this file as mark X/1. Since Sukhdev Singh was neither an eye witness, nor he was present on the spot, he had not no personal knowledge about the facts of the case and as such, he had no locus standi to institute the present complaint.” Learned Trial Judge further found fault with the presentation by noticing that the impugned occurrence had taken place on 22.4.1989 and the private complaint in the context had been filed by Sukhdev singh on 24.5.1989. It was noticed that the Criminal Appeal No.1028-SB of 1998 -12- **** complainant therein had not been able to explain aforementioned delay of one month and two days in filing of the complaint. On perusal of the evidence, the Court observed that “in the light of these circumstances, it is doubtful whether Bogha Singh suffered any injury under Section 326 IPC or not. If the injury was grievous one, the complainant must have explained the reason why Bogha Singh was not offered for x-ray. This also makes the sort of the complainant as doubtful.” A finding was also recorded that it was the accused party therein which had been found to be owner in possession of the piece of land under reference and it was complainant party therein which went over to disturb their possession upon it. Learned Court observed that “in these circumstances, the very basis of the complaint was not proved by the complainant on the file.” Learned counsel for the petitioner could not invite my attention to any material obtaining on the file on the basis thereof, he could either find a fault with the factual premise noticed by the learned Trial Judge or in the manner of appreciation of evidence by that Court. The revision petition is dismissed accordingly. September 17, 2008 (S. D. ANAND) Pka JUDGE