Crl. Rev. No.570 of 2002 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.570 of 2002 Date of Decision: 10 - 5 - 2010 Harvinder Singh and others .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Jaspreet Singh, Advocate for the petitioners. Mr.Mehardeep Singh, DAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. The present revision petition has been preferred by Harvinder Singh son of Sajjan Singh, his brother Lakhvir Singh, Tarsem Singh son of Ajaib Singh and Ujagar Singh son of Sarwan Singh. They were named as accused in case FIR No.23 dated 5.4.1992 registered at Police Station Bassi Pathana under Sections 326, 324, 323 and 34 IPC. The Court of Judicial Magistrate Ist Class, Fatehgarh Sahib vide its judgment dated 18.8.2000 found petitioner Harvinder Singh guilty of offence under Section 326 IPC, whereas his co-accused were held guilty with the aid of Section 34 IPC. Tarsem Singh was held guilty of offence under Section 324 IPC, whereas his co-accused were held guilty with the Crl. Rev. No.570 of 2002 [2] aid of Section 34 IPC. Lakhvir Singh and Ujagar Singh were substantively held guilty for offence under Section 323 IPC, whereas others were held guilty with the aid of Section 34 IPC. Accordingly, the trial Court sentenced petitioner Harvinder Singh to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.500/- or in default of payment of fine to further undergo rigorous imprisonment for 6 months for the offence punishable under Section 326 IPC. He was also sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.200/- or in default to further undergo rigorous imprisonment for 4 months for the offence punishable under Section 324/34 IPC. He was also sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.200/- and in default to further undergo rigorous imprisonment for 2 months for offence punishable under Section 323/34 IPC. Similarly, petitioner Tarsem Singh was sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.400/- or in default to further undergo rigorous imprisonment for 4 months for the offence punishable under Section 324 IPC. He was also sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.400/- or in default to further undergo rigorous imprisonment for 6 months for offence punishable under Section 326/34 IPC. He was also sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.200/- or in default to further undergo rigorous imprisonment for two months for offence punishable under Section 323/34 IPC. Petitioner Lakhvir Singh and Ujagar Singh were sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.200/- or in default to further undergo rigorous imprisonment for 2 months each for offence punishable under Section 323 IPC. They were also sentenced to undergo rigorous Crl. Rev. No.570 of 2002 [3] imprisonment for 3 years and to pay a fine of Rs.400/- or in default to further undergo rigorous imprisonment for 6 months each for offence punishable under Section 326/34 IPC. They were also sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.200/- or in default to further undergo rigorous imprisonment for 4 months each for offence punishable under Section 324/34 IPC. They were also sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.200/- or in default to further undergo rigorous imprisonment for 2 months each for offence punishable under Section 323/34 IPC. All the sentences of substantive imprisonment were ordered to run concurrently. Aggrieved against the conviction and sentence, the petitioners had filed an appeal. The appeal was dismissed, the conviction was upheld and the sentence was maintained. Khem Singh PW1 made a statement Ex.PA before ASI Hakikat Singh PW4 stating that he was a resident of Village Mustafabad and was posted as a Junior Assistant in the Irrigation and Power Department at Chandigarh. On 4.4.1992 at about 7.30 P.M., he had gone to the fields to ease himself. When he reached near the fields of Narata Singh Lamberdar, he was encircled by Harvinder Singh son of Sajjan Singh, Tarsem Singh son of Ajaib Singh, Lakhvir Singh son of Sajjan Singh and Ujagar Singh son of Sarwan Singh. Harvinder Singh raised a lalkara that today complainant will not be left. Saying so Harvinder Singh gave a Gandasi blow which hit his nose, due to which he fell down. When he was lying fallen on the ground, Tarsem Singh gave two Sua blows on his right leg. Thereafter Lakhvir Singh gave a Sotti blow causing injury on the left leg. Ujagar Singh gave a Sotti blow on the left and right thigh. Lakhvir Singh gave another Sotti Crl. Rev. No.570 of 2002 [4] blow below the right eye. They caused further injuries. Complainant raised a noise `Mar Ditta, Mar Ditta' which attracted his father Chanan Singh and brother Harnek Singh. On seeing coming the witnesses, all the accused ran away from the spot alongwith their respective weapons. The cause of grudge was that the complainant was having a dispute over a piece of land with Swaran Singh which was subject matter of a court case. Due to this, all the accused after consultations and with common intention had caused the injuries. The above-said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The Court of Sub Divisional Judicial Magistrate, Fatehgarh Sahib on 13.3.1993, charged the petitioners for various offences having caused injuries to Khem Singh. Khem Singh injured appeared as PW1. He reiterated as to what was stated in his statement Ex.PA, on the basis of which formal FIR Ex.PA/2 was registered. The testimony of Khem Singh PW1 was corroborated by his father Chanan Singh who appeared as PW2. Harnek Singh brother of PW1 Khem Singh complainant was given up as won over by the accused. Complainant-injured Khem Singh was examined by Dr.V.K.Sethi, PW3, on 4.4.1992 at 11.30 P.M. and he found the following injuries on his person:- 1. An incised wound 3.5 cm x 0.5 cm situated transversal in nose. X-ray was advised. 2. An abrasion 0.5 cm x 0.5 cm in nose situated above right nostril. 3. Upper medical incisor two teeth are shaky. There is slight laceration of the gum. Orodental hygiene poor. All teeth Crl. Rev. No.570 of 2002 [5] present X-ray was advised. 4. An incised wound 2.0 cm x 0.5cm on medical side of middle part of right leg. X-ray was advised. 5. An incised wound 1.5 cm x 0.5 cm in medial side of middle part of right leg. X-ray was advised. 6. Bruise 0.5 cm x 2.0 cm on medical side of left elbow. 7. Swelling bruise of upper & lower & lower eye lids of right eye. Blood under conjuncture present. 8. Bruise red in colour 14.0 cm x 2.5 cm on front of right thigh. 9. Bruise red in colour 11.0 cm x 2.5 cm in front of left thigh. 10. An abrasion 1.0 cm x 0.7 cm in front of upper part of right leg. 11. Bruise red in colour 7.0 cm x 2.0 cm in back of left shoulder. 12. Incised wound 2.0 cm x 2 mm partial skin deep on back of right ear. Injury No.1 was declared as grievous. Since PW3 Dr.V.K.Sethi was conversant with the handwriting of Dr.H.S.Sandhu, Radiologist, he proved his opinion and skiagrams. In cross-examination he stated that injury No.11 can be caused by friendly hand but cannot be self inflicted. Possibility of injury Nos.1 to 10 by striking on a hard surface cannot be ruled out. This witness in cross-examination further stated that as per the skiagrams Exs.P2 and P3 and report Ex.PW3/D, there was a fracture on nosel bone. Therefore, injury was declared as grievous. It was further admitted that Dr.Harkirtan Paul Singh Sandhu, S.M.O., Civil Hospital, Fatehgarh Sahib had asked the witness to obtain opinion from Rajindra Hospital, Patiala regarding injury on the nose. The witness had consulted the doctor but no opinion was given. Dr.Harkirtan Paul Singh, S.M.O. PW5 stated that on 5.4.1992, he was posted as S.M.O. Incharge, Civil Hospital, Fatehgarh Sahib. From Crl. Rev. No.570 of 2002 [6] the x-ray examination of Khem Singh, no fracture on upper jaw or right leg was found. X-ray regarding nose was referred to Rajindra Hospital, Patiala for opinion of the Radiologist. Statements of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to them. They pleaded not guilty and claimed innocence. They examined Constable Kamaljit Singh as DW1, Navdeep Gupta, Handwriting and Finger Print Expert as DW2. They also produced certain documents in their defence. It may be mentioned here that accused-petitioners were further examined under Section 313 Cr.P.C. After recalling of Dr.V.K.Sethi, PW3, as well as after examination of Harkirtanpaul Singh, PW5, thereafter, they closed the defence evidence. Mr.Jaspreet Singh, counsel appearing for the petitioners has stated that in the present case no blood stained clothes of the injured were taken into possession by the Investigating Agency. Further more, no independent witness has been examined. The version given by PW1 Khem Singh is supported by none else but his own father Chanan Singh PW2. It was further submitted that non-examination of Harnek Singh on the false pretext that he was won over by the accused should be construed against the prosecution, as the accused have been denied an opportunity to cross- examine Harnek Singh. It was submitted that there is no definite opinion regarding injury No.1 being grievous. Counsel relied upon the testimony of PW5 Dr.Harkirtan Paul Singh and submitted that S.M.O. had referred injury No.1 for opinion of the Radiologist at Rajindra Hospital, Patiala. This course was also suggested to Dr.V.K.Sethi PW3 who had obtained no opinion from Rajindra Hospital, Patiala. Thus, it was submitted that it will not be safe to hold that injury No.1 suffered by Khem Singh PW1 on his Crl. Rev. No.570 of 2002 [7] nose was grievous in nature, especially when from the clinical examination, no fracture is visible. Mr.Mehardeep Singh, Deputy Advocate General, Punjab appearing for the State has submitted that both the Courts below have rightly held the petitioners guilty of offence. The trial Court placed implicit reliance on the testimonies of PW1 Khem Singh and his father Chanan Singh PW2. The trial Court also considered the testimony of Kamaljit Singh DW1 who brought Roznamcha and Navdeep Gupta DW2. The trial Court while rejecting the contention that injury No.1 was not grievous observed as under:- “22. The other argument raised by ld. defence counsel that Dr.V.K.Sethi (P.W.3) failed to consult the doctors of Rajindra Hospital, Patiala before giving his opinion about x-ray regarding injury No.1, again this argument is devoid of any merit. Dr.V.K.Sethi had conducted medico legal examination. He had advised X-ray examination for injuries No.1,3,4 and 5. The x-ray examination was done on 5.4.1992 by Dr.Harkirtanpaul Singh (P.W.5). He failed to give any opinion with regard to nature of injury No.1. It appears that thereafter a request was made by the police for giving opinion with regard to injury No.1. The said request was made before the Senior Medical Officer, Civil Hospital, Fatehgarh Sahib who then asked Station House Officer, P.S. Bassi Pathana, to get opinion from Patiala. X-ray film relating to injury No.1 was also sent to the police. It is apparent from Ex.P.W.4/G that ASI Hakikat Singh then went to Rajindra Hospital, Patiala and reported to Crl. Rev. No.570 of 2002 [8] the Medical Superintendent who directed the Professor/Dr. Incharge of Radiology Department to give necessary opinion. This endorsement is dt. 22.5.1992 and thereafter, Senior Medical Officer, Civil Hospital, Fatehgarh Sahib asked Dr.Sethi to give his opinion after consulting the doctors of Rajindra Hospital, Patiala. This direction was made on 10.6.92 and it is thereafter that Dr.Sethi gave his opinion on 10.6.1992 which has been proved on file as Ex.P.W.3/D. He opined that there was fracture of nasal bone which he has described to be grievous in nature in his further examination made in the court on 9.3.2000. In his cross examination, conducted on 27.5.2000 he has stated that he had consulted the doctors of Rajindra Hospital, Patiala but no opinion was given by the said doctors. Thus no fault can be found with the opinion given by Dr.V.K.Sethi.” Both the Courts below have relied upon the testimony of Dr.V.K.Sethi who had examined the skiagrams and opined that injury No.1 was grievous. Therefore, this Court affirms these findings. Khem Singh PW1 had received 12 injures in the occurrence. Being injured, he will be the last person to absolve the real assailants. Therefore, the argument that the blood stained clothes of Khem Singh were not taken into possession will not weaken the case of the prosecution. The occurrence had taken place at 7.30 P.M. Chanan Singh PW2, father of Khem Singh PW1 was expected to be present in the village. Therefore, his presence cannot be doubted. Statement of Khem Singh PW1 was recorded in the morning of next day at 10.00 A.M. at Civil Hospital, Crl. Rev. No.570 of 2002 [9] Fatehgarh Sahib. Delay, if any, is of 15 hours. The first anxiety of the family members is to take the injured to the hospital. From the medico legal report Ex.PW3/B, it is evident that injured had reached the hospital on 4.4.1992 at 11.30 P.M. Thus, in the present case where the injured had deposed against the petitioners, the delay cannot be taken into consideration to throw out the prosecution case. Hence, the conviction recorded by both the Courts below is upheld. In the present case, the occurrence had taken place in the year 1992. A period of more than 18 years has elapsed. The petitioners are in the corridors of the Courts for the last 18 years. They had suffered mental pain and agony of the protracted trial. Taking this factor into consideration as a mitigating circumstance, this Court is of the view that reduction in the sentence is justifiable. Therefore, the sentence of 3 years rigorous imprisonment awarded to petitioner Harvinder Singh under Section 326 IPC is reduced to 1½ years rigorous imprisonment. The sentence of 2 years awarded to him under Section 324/34 IPC is reduced to 1 year rigorous imprisonment. The sentence of 2 years rigorous imprisonment awarded to petitioner Tarsem Singh under Section 324 IPC is reduced to 1 year rigorous imprisonment. The sentence of 3 years awarded to him under Section 326/34 IPC is reduced to 1½ years rigorous imprisonment. The sentence of 3 years rigorous imprisonment awarded to petitioners Lakhvir Singh and Ujagar Singh under Sections 326/34 IPC is reduced to 1½ years rigorous imprisonment. The sentence of 2 years rigorous imprisonment awarded to them under Section 324/34 IPC is reduced to 1 year rigorous imprisonment. All the sentences shall run concurrently. However, the sentence of fine and default clause is maintained. Crl. Rev. No.570 of 2002 [10] With the aforesaid modification in the sentence, the present revision petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) May 10, 2010. JUDGE RC