IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 1779-SB of 2002 Hardev Singh … Appellant Versus State of Punjab … Respondent 2. Criminal Appeal No. 1883-SB of 2002 Gurmel Singh … Appellant Versus State of Punjab … Respondent 3. Criminal Appeal No. 1834-SB of 2002 Gurmel Singh … Appellant Versus State of Punjab … Respondent Date of decision: 22nd April, 2010 CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. M.P.S. Mann, Amicus Curiae with Mr. Jonny Goel, Advocate for the appellants. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) By this common order, Criminal Appeal No.1779-SB of 2002 preferred by Hardev Singh and Criminal Appeal No.1883-SB of 2002 preferred by Gurmel Singh shall be decided together. Gurmel Singh has Criminal Appeals No.1779-SB, 1883-SB and 1834-SB of 2002 preferred two appeals. Another appeal filed by him is Criminal Appeal No.1834-SB of 2002. Both the appeals preferred by him have been clubbed. Hardev Singh and Gurmel Singh were nominated as accused in case FIR No.117 dated 25.07.1998 registered at Police Station Sadar, Muktsar under Section 307/34 IPC. The appellants were tried by the Court of Additional Sessions Judge, Faridkot. The trial Court charged Gurmel Singh for offence punishable under Section 307 IPC whereas, Hardev Singh was charged with an aid of Section 34 IPC. The charge stated that on 24th July, 1998 in the area of village Fattanwala at about 11.00 p.m. (during night) both the accused in furtherance of their common intention, caused grievous injury to Jaskaran Singh. Since the injury was attributed to Gurmel Singh, substantive charge under Section 307 IPC was framed against him, whereas Hardev Singh was charged with an aid of Section 34 IPC. The trial Court vide its impugned judgment dated 29th October, 2002 acquitted the accused for offence under Section 307 IPC, but found the appellants guilty of an offence punishable under Section 326 IPC. Gurmel Singh was substantively convicted and sentenced under Section 326 IPC to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for six months, whereas Hardev Singh alias Gheela with an aid of Section 34 IPC was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for six months The criminal proceedings were set into motion against the appellants on the basis of statement Ex.PA made by Jaskaran Singh, which led to the registration of formal FIR Ex.PA/2. The complainant 2 Criminal Appeals No.1779-SB, 1883-SB and 1834-SB of 2002 Jaskaran Singh stated that he was resident of village Fattanwala and was doing agricultural work. He had kept his residence in his fields. On 25th July, 1998 at about 11.00 p.m. the complainant along with his brother Sukhmander Singh was irrigating fields from the tubewell, which was operated by electric motor. Adjoining to the fields of the complainant, there were fields of Sukhdev Singh appellant, which Gurmel Singh appellant had taken on lease. The accused appellants also used to irrigate their fields through tubewell, as the canal minor, from which the fields were irrigated, at that time was lying dry. At about 11.00 p.m., the water started flowing in the minor canal and the complainant started irrigating his fields from the canal minor, at which the appellant stated that it was their turn and they should be allowed to irrigate their fields, as the turn of the complainant to draw water from the canal minor was not due. When Gurmel Singh made an attempt to irrigate his fields, it was objected by the complainant. At that time, the appellant Hardev Singh raised a lalkara, upon which Gurmel Singh gave a gandasa blow from the right side on the head of Jaskaran Singh complainant. When Gurmel Singh intended to cause another injury, he was restrained by Sukhmander Singh brother of the complainant. The complainant raised a noise, upon which both appellants ran away from the spot along with their weapons. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The case along with the appellants was committed and entrusted to the Court of Additional Sessions Judge, Faridkot. As stated earlier, the appellants were charged. They pleaded not guilty and claimed trial. Jaskaran Singh was medico legally examined by Dr.Sukhpal Singh PW-4, who found an incised wound 8 cm x 1.2 cm bone deep on the left side of the forehead of the complainant Jaskaran Singh. This injury was declared grievous. 3 Criminal Appeals No.1779-SB, 1883-SB and 1834-SB of 2002 Dr.Rupinder Kaur Sandhu PW-6 had conducted radiological examination of Jaskaran Singh and found fracture of skull on the left side. Dr.Naveen Manchanda PW-10 on 25th July, 1998 was posted in CMC Ludhiana and was a resident doctor in Neuro-Surgery Department. He found following injuries on the person of Jaskaran Singh: 1. Sutured wound 12 cms long on the left frontoparietal area. 2. The C.T. Scan showed generalized brain oedema, fracture of frontal bone with fractured fragments in the frontal lobe of left side. 3. The operative findings were, depressed fracture on left frontal bone, with bone fragments, embedded in the brain. Dural tear underlying the depressed fracture. Brain matter issuing out through the wound. These injuries were opined to be dangerous to life. As stated earlier, the appellants have been acquitted for offence punishable under Section 307 IPC. No State appeal has been preferred. Jaskaran Singh complainant appeared as PW-1 and reiterated as to what was stated in the statement Ex.PA recorded by the police. Sukhmander Singh, brother of the complainant, appeared as PW-2 and corroborated testimony of his brother. ASI Kewal Singh PW-3 had arrested the appellants and gandasa Ex.P1 was recovered at the instance of Gurmel Singh appellant. Malkiat Singh Patwari PW-5 proved scaled site plan Ex.PJ of the spot. 4 Criminal Appeals No.1779-SB, 1883-SB and 1834-SB of 2002 ASI Balbir Singh PW-7 proved recording of statement Ex.PA of the complainant Jaskaran Singh and registration of formal FIR Ex.PA/1. This witness had also recorded statement of other witnesses under Section 161 Cr.P.C. HC Surinder Singh PW-8 proved DDR No.15 dated 11th August, 1998. Thereafter, prosecution closed its evidence. Statements of the appellants under Section 313 Cr.P.C. were recorded and all incriminating circumstances were put to them. They denied the same and pleaded false implication. In defence, Sukhdev Singh appeared as DW-1 and stated that the appellants Hardev Singh was his brother. There was a weekly settled water turn in the village. This settlement was arrived at by the Committee. This witness submitted original Warabandi for the year 1998 as Ex.D1. Paljit Singh DW-2 stated that as per the Warabandi, the turn of the complainant to draw water was not due. Piara Singh DW-3 also stated the reasons for false implication. Mr. M.P.S. Mann, Amicus Curiae assisted by Mr. Jonny Goel, Advocate appearing for the appellants, has made following submissions: (a) In the occurrence, Hardev Singh had caused no injury. He is only said to have raised a lalkara. No overt role was assigned to him. It is submitted that there is a general tendency in this part of the country to inflate the number of accused. (b) There was no previous enmity between the complainant and the accused party. The occurrence had ensued on the spur of a moment without any premeditation, when both the parties asserted their right to draw water from the minor canal. It is 5 Criminal Appeals No.1779-SB, 1883-SB and 1834-SB of 2002 stated that therefore, Section 34 IPC is not attracted on the facts of the case and Hardev Singh cannot be convicted with the aid of Section 34 IPC. (c) Gurmel Singh had caused only one injury in the occurrence. He had not repeated any blow. When the occurrence had ensued on the spur of a moment, possibility that before the injury was caused, some hot words were exchanged, cannot be ruled out. Thus, offence will not fall under Section 326 IPC but under Section 335 IPC. Mr. Mehardeep Singh, Deputy Advocate General, Punjab has stated that the trial Court has relied upon the testimonies of Jaskaran Singh PW-1 and Sukhmader Singh PW-2 and has rightly convicted the accused. I have given my thoughtful consideration to the rival submissions made before me. A perusal of the FIR and the testimonies of the witnesses reveals that on the night of occurrence at about 11.00 p.m. both, the complainant and the appellants, were irrigating their fields. The minor canal, which was lying dry, suddenly started flowing with water and both the farmers in the dire need of water to irrigate their fields, asserted their right to draw water from the canal. From the defence evidence, it has been proved that turn of the complainant party to draw water was not due, therefore, when they were trying to draw water, they were rightly restrained by the appellants. The possibility that this led to some altercation and exchange of hot words, cannot be ruled out. Therefore, there is merit in the contention that the occurrence was a sudden affair. Therefore, Section 34 IPC is not attracted on the facts of the present case. 6 Criminal Appeals No.1779-SB, 1883-SB and 1834-SB of 2002 Appellant Hardev Singh has caused no injury in the occurrence. Thus, the appeal of Hardev Singh is accepted and he is acquitted of the charges. There was no grave provocation extended by the complainant party, therefore, offence under Section 335 IPC is not made out. The trial Court has rightly convicted Gurmel Singh for an offence punishable under Section 326 IPC. However, this Court cannot ignore the fact that Gurmel Singh had caused solitary blow in the occurrence. In the present case, occurrence had taken place in the year 1998. Appellant Gurmel Singh is already in corridors of the Courts for the last about 12 years. He has suffered mental pain and agony of a protracted trial. Taking this as a mitigating circumstance, the sentence awarded upon appellant Gurmel Singh is reduced from four years to two years rigorous imprisonment. With the observations made above, all the above mentioned three appeals are disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE April 22, 2010 rps 7