Crl. Revision No.1124 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.1124 of 2005 Date of Decision: March 18, 2011 Hardev Singh and another … Petitioners Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE GURDEV SINGH Present: Mr. P.S. Sullar, Advocate, for the petitioners. Ms. Gagan Mohini, AAG, Punjab. GURDEV SINGH, J. (Oral) The petitioners/accused, Hardev Singh and Gursharan Singh, were convicted for the offences under Sections 332, 353, 506 and 186 read with Section 34 IPC by the learned Chief Judicial Magistrate, Fatehgarh Sahib, vide judgment dated 12.01.2002 and were sentenced as under: - Sr. No. Under Section Sentence Imposed Fine 1. 353/34 IPC To undergo rigorous imprisonment for a period of one year. 1000/- 2. 332/34 IPC To undergo rigorous imprisonment for a period of one year. 1000/- 3. 506/34 IPC To undergo rigorous imprisonment for a period of one year. Nil 4. 186/34 IPC To undergo rigorous imprisonment for a period of three months. Nil The petitioners/accused preferred an appeal against the conviction and sentence but the same was dismissed by Additional Sessions Judge, Fatehgarh Sahib, vide judgment dated 27.05.2005. Now they have Crl. Revision No.1124 of 2005 2 preferred the present revision petition against the conviction and sentence. Facts, in brief, are that there was a sanctioned watercourse in the land of the accused, which was dismantled by them and an order was passed in case No. 4 of 1996 by the Superintendent Engineer, Canal Department, Patiala, for the restoration of that water course. The officials of the Canal Department went to the spot for restoration of the watercourse, but were not allowed to do so by the accused. Thereafter, the orders were obtained from District Magistrate, Fatehgarh Sahib, for restoring the watercourse with the help of police force. Bhupinder Singh Patwari PW-3, Gurnam Singh Ziledar PW-8, accompanied by Jawala Singh Lambardar, Surjit Singh Panch, Makhan Singh Lambardar, Rajinder Singh, Gurdev Singh, Mewa Singh, Avtar Singh and Manmohan Singh, went to the land of the accused on 21.10.1996 at about 10.30 a.m. At that time, Bir Singh accused, with his two sons; namely, Hardev Singh and Gursharan Singh, was also present. They were made aware of the orders passed by the District Magistrate and the restoration of the watercourse. They were asked if there was any stay order in their favour but they failed to produce any such order. When the proceedings were started for restoring the watercourse, the accused started abusing and threatened Patwari and Ziledar. Gursharan Singh started his tractor make of HMY-3511, bearing registration No.PJV-4114, and tried to run over the Patwari, who tried to save himself by running and in the process fell down. That accused passed over the right side rear wheel of the tractor over his knee. That accused again tried to run over him by reversing the tractor but the back wheel thereof broke down. That accused was over powered by the police force. About this occurrence, Patwari made his statement PW-3/A before Sadha Crl. Revision No.1124 of 2005 3 Singh, ASI and on the basis thereof FIR Ex.P-7/B was recorded against the accused. Bhupinder Singh Patwari was medico legally examined by Dr. Bhushan Malhotra PW-2, who found one injury on his person, which was described in the MLR report Ex.PW-2/A. In the course of investigation, the other accused were arrested, relevant documents were taken into possession and statements of witnesses were recorded. After completion of the investigation, the challan was put in before Chief Judicial Magistrate, who found sufficient grounds for presuming that that the accused committed the aforesaid offences. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined Surjit Singh PW-1, Dr. Bhushan Malhotra PW-2, Bhupinder Singh PW-3, Lakhwinder Singh PW-4, C Daswinder Singh PW-5, Paramjit Singh, Ahlmad PW-6, ASI Sadha Singh PW-7 and Gurnam Singh Ziledar PW-8. During the trial, Bir Singh accused died and the proceedings against him stood abated. After closing of the evidence of the prosecution, the other accused were examined and their statements were recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. They pleaded that ASI Bagh Singh, who was related to Manmohan Singh, was posted at Police Station Sirhind and Gurdayal Singh, S.P. (D) was posted in Fatehgarh Sahib and on account of close relationship of Manmohan Singh with those police officers false case was registered against them. No watercourse ever existed in their land and, as such, there was no question of restoring the same. It was also stated by Crl. Revision No.1124 of 2005 4 Gursharan Singh that he was not present at the time of alleged occurrence. They were called upon to enter on their defence. They examined Joginder Kumar DW-1, Jaswinder, Receipt and Despatch Clerk DW-2, Kirpal Singh DW-3 and Jagdish Rai, Junior Statistical Assistant, DW-3 in their defence evidence. The charge was re-framed against Hardev Singh and Gursharan Singh accused by learned Chief Judicial Magistrate on 11.01.2002 on the ground that the offence under Section 323 IPC stood covered by the offence under Section 332 IPC. Those accused did not plead guilty and the Court proceeded with the trial by observing in the order that only the offence under Section 323/34 IPC had been deleted and no fresh charges have been framed and there was no need to re-examine the witnesses. After going through the evidence so produced on the record and hearing the Assistant P.P. for the State and learned counsel for the accused, the learned Chief Judicial Magistrate convicted and sentenced the accused, as aforesaid. I have heard learned counsel for both the sides. Learned counsel for the accused tried to assail the findings of conviction recorded by the trial court and upheld by the appellate court on the grounds that such a conviction could not have been recorded on the basis of the statements of the alleged eyewitnesses, who made contradictory statements on the material points and from that evidence it does not stand proved that all the accused were sharing a common intention. The contradiction pointed out by him is about the presence of all the accused at the commencement of the occurrence. He also submitted that if the conviction is to be maintained, then the accused may be released on probation as they are not previous convicts and had been standing their trial Crl. Revision No.1124 of 2005 5 since the year 1996. On the other hand, it was submitted by the learned State counsel that there is no such contradiction and there is only minor discrepancy in the statements of the eyewitnesses. It is very much clear from those statements of witnesses that all the accused were sharing a common intention and it was in furtherance of their common intention that Gursharan Singh accused voluntarily hurt to Bhupinder Singh Patwari in order to deter him from discharging his official duty. There is no ground for setting aside the conviction of the accused or releasing them on probation. The re-appreciation and re-appraisal of the evidence, while exercising the revisional jurisdiction, is permissible, only if this Court comes to the conclusion that the findings recorded by the trial court or the appellate court are perverse or illegal or are based on the mis-reading of evidence. Keeping that proposition in mind, I have gone through the statements of the prosecution witnesses. There are only minor discrepancies, which are bound to occur even in the statements of the most truthful witnesses, when they are examined in the court after the lapse of much time of the occurrence itself. It was stated by Bhupinder Singh, Patwari PW-3, that Bir Singh was present in the field whereas Hardev Singh and Gursharan Singh had accompanied them, whereas, according to Surjit Singh PW-1, Gursharan Singh was already driving the tractor in the fields. Except this contradiction all these witnesses have made consistent statements. They cannot be disbelieved merely on the ground of said contradiction, as nothing could be elicited during their cross-examination, so as to show that they are witnesses not worthy of belief. Crl. Revision No.1124 of 2005 6 All the developments had taken place after the accused were made aware of the fact that Bhupinder Singh Patwari and Gurnam Singh, Ziledar, had come to the spot for restoration of the watercourse. The common intention can develop at the spur of the moment. In order to attract Section 34 IPC, it is necessary on the part of the prosecution to establish that each one of the accused shared common intention, which must be prior in time to the actual assault and any of them had done the act in furtherance of the common intention. That fact can be proved by direct and circumstantial evidence. There must be a plan or meeting of mind of all the assailants to commit the offence, may it be pre-arranged or at the spur of the moment, but it must necessarily be before the commission of the crime. In the present case, it is very much clear from the statements of the prosecution witnesses that common intention had developed between all the accused at the spot itself before the commission of the offence. It was with a view to restrain the officials of the canal department from restoring the watercourse that Gursharan Singh accused voluntarily caused hurt to Bhupinder Singh, Patwari, by running over him under the tractor. They also obstructed those public servants from discharging their official duties by criminally intimidating them and otherwise also. Therefore, they committed the offences under Section 332 read with Sections 34, 186 and 506 IPC. Offence under Section 332 IPC is more grave as compared to the offence under Section 353 IPC. The second offence deals with the assault or use of criminal force, which is always prior to the causing of the actual hurt. Once the accused have been convicted under Section 332 IPC, they could not have been convicted under Section 353 IPC and accordingly, they are acquitted of that offence. Crl. Revision No.1124 of 2005 7 At no stage, it was the case of the prosecution that the accused were previous convicts. Only simple hurt was caused by one of the accused in furtherance of the common intention. The accused are standing their protracted trial for the last more 12 years. The offences for which they have been convicted are punishable with imprisonment upto two years. As per custody certificate placed on record, Hardev Singh-accused has already undergone sentence of imprisonment for a period of one month and 19 days. When the accused were heard at the time of imposing of the sentence by the trial court, they brought on record the mitigating circumstances. Keeping in view all these facts and the nature of the offences, I think it proper and expedient to release them on probation instead of sentencing them at once to any punishment. Accordingly, this revision is partly allowed. The sentence so imposed upon the accused is set aside and they are ordered to be released on probation under Section 360 of Cr.P.C. on their executing personal bonds in the sum of `10,000/- each with one surety each in the like amount in each case for a period of two years to appear and receive the sentence as and when called upon to do so during that period and to keep peace and be of good behaviour in the meanwhile. They are directed to pay `5,000/-, each, as costs of the proceedings. The fine, if already deposited, shall be adjusted towards those costs. The bonds are to be furnished and costs are to be paid/deposited before the trial court within three months of passing of this order, failing which this revision shall be deemed to have been dismissed. Records of the trial court be returned forthwith. March 18, 2011 (GURDEV SINGH ) Rajan/prem JUDGE Crl. Revision No.1124 of 2005 8