Crl. Rev. No. 1071 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HAYRANA AT CHANDIGARH Crl. Rev. No. 1071 of 2009 Date of decision: May 20, 2009 Sukhchain Singh and others ….. Petitioners Versus State of Punjab ….. Respondent Present: Mr. T.S. Sanga, Senior Advocate with Mr. Narinder Singh, Advocate for the petitioners. Mr. Sudhir Nehra, Addl. A.G., Punjab. *** S.S. SARON, J. The petitioners have filed this revision petition against the judgment and order dated 2.4.2009 passed by the learned Additional Sessions Judge, Mansa, whereby their appeal against the judgment and order dated 26.5.2004 passed by the learned Judicial Magistrate Ist Class, Mansa against their conviction and sentence for the offences under Sections 325, 324, 323, 148/149 Indian Penal Code (“IPC” – for short) has been dismissed. On 29.2.1997, information was received from SHO Police Station City Mansa that Sukhchain Singh (petitioner No.1), Roop Singh (petitioner No.3), Gurdip Kaur, Balam Singh, Bahal Singh, Gobinder Singh and Kartar Singh residents of village Borawala were admitted in Civil Hospital, Mansa in an injured condition. On receiving the said information, SI Jalour Singh along with other police officials after obtaining medico- Crl. Rev. No. 1071 of 2009 2 legal reports from MHC, Police Station City Mansa went to Civil Hospital, Mansa. A written request was made for obtaining the opinion of the doctor regarding the fitness of injured Roop Singh, Sukhchain Singh, Gurdip Kaur, Balam Singh, Gobinder Singh and Bahal Singh. The doctor declared that except for Kartar Singh injured the other injured were fit for making their statements. Accordingly, the statement of Bahal Singh was recorded who stated that they were two brothers and Kartar Singh was elder to him. They were residing together in one house. In their residential house about 5 days back, a new door was opened as the brothers were deciding to partition the house by having separate residences. They had, therefore, constructed a new door. At that time, Sukhchain Singh (petitioner No.1) who was their neighbour had raised objection to the opening of another door. On 27.2.1997 at about 8.00 p.m., Bahal Singh (complainant) and his brother Kartar Singh and his son Balam Singh were talking with each other in the street. In the meantime, Sukhchain Singh (petitioner No.1) armed with ‘gandasa’, Satgur Singh (petitioner No.2) armed with ‘gandasa’ and Darshan Singh (petitioner No.3) armed with ‘dang’ all sons of Hakam Singh; Sukhdev Kaur wife of Hakam Singh armed with ‘danda’, Roop Singh (petitioner No.4) armed with ‘dang’ and Gurcharan Singh (petitioner No.5) armed with ‘dang’ raising lalkaras from the side of the house of Sukhchain Singh (petitioner No.1) came at the place of the occurrence. Sukhdev Kaur raised a lalkara to teach Bahal Singh (complainant) and Kartar Singh a lesson for erecting a new door in the street. On saying so, Sukhchain Singh (petitioner No.1) inflicted a ‘gandasa’ blow on the complainant which hit him on his neck from its sharp side, then Satgur Singh (petitioner No.2) gave a ‘gandasa’ blow with its reverse side to Bahal Singh which hit him on his left hand, then Darshan Singh (petitioner No.3) Crl. Rev. No. 1071 of 2009 3 gave two ‘dang’ blows which hit the complainant on his right arm and right wrist. Roop Singh (petitioner No.4) gave two ‘dang’ blows which hit on the head and on the left ear of the complainant Bahal Singh. The complainant then raised an alarm of ‘Mar Ditta Mar Ditta’. On hearing the alarm, his granddaughter Gurdip Kaur daughter of Balam Singh, Joginder Singh son of Kartar Singh and Gobinder Singh son of Kartar Singh came running from their house and they saw the occurrence and raised an alarm of ‘Mar Ditta Mar Ditta’. At that time, the electricity bulb was on. The assailants also caused injuries to the complainant’s granddaughter namely Gurdip Kaur, his brother Kartar Singh and his nephews Gobinder Singh and Balam Singh. The motive for the same was that the complainant Bahal Singh and his brother Kartar Singh had made and opened a door in the street and the accused wanted that the door should be closed with the result that they in connivance with each other had caused injuries to the complainant and his other family members. Swaran Singh after making arrangement of a vehicle got them admitted in the Civil Hospital, Mansa where Bahal Singh complainant was under treatment. The statement of the complainant was recorded on which SI Jalour Singh made his endorsement. A ruqa (memo) was sent for registration of FIR which was registered. Then SI Jalour Singh went to the place of occurrence and carried out investigations. The site plan of the place of occurrence was prepared and the statements of the witnesses were recorded. The medical report of the injured was taken in possession. After completion of investigation, charge report (challan) was filed. The learned Judicial Magistrate Ist Class, Mansa finding a prima facie case for the offences under Sections 324, 323, 325, 148/149 IPC to be made out charged the accused accordingly. They pleaded not guilty to the charges. The prosecution in order to prove its case examined Dr. Purshotam Crl. Rev. No. 1071 of 2009 4 Goel, Medical Officer, Civil Hospital Mansa (PW1) who examined Bahal Singh complainant aged 70 years and found as many as seven injuries on his person. Besides, he examined Gobinder Singh son of Kartar Singh and six injuries were found on his person. Balam Singh son of Kartar Singh was also examined and six injuries were found on his person. Gurdip Kaur daughter of Balam Singh was examined and two injuries were found on her person and Kartar Singh son of Mal Singh aged 70 years was also examined and six injuries were found on his person. The prosecution, however, had failed to conclude its evidence, despite several adjournments including one of last opportunity that were granted. As such the evidence of the prosecution was closed by order dated 7.7.2003. The statement of the accused were recorded under Section 313 of the Code of Criminal Procedure (“CrPC” – for short) in which the incriminating evidence appearing against the accused was put to them. In defence, the accused examined Naib Singh (DW1) and Sajjan Singh (DW2) and closed their evidence. The learned trial Court considered the contentions raised by the prosecution and the accused. It was observed that PWs Kartar Singh, Bahal Singh, Gobinder Singh and Gurdip Kaur had clearly stated that the incident occurred at 8.00 p.m. on 27.2.1997. The injured were taken to the hospital on 28.2.1997 at 3.30 a.m. This was clear from the medical reports of the injured persons. As such, it was observed that there was no unexplained delay in the registration of the case (FIR) which may create doubt about the prosecution version. Besides, the prosecution witnesses namely Bahal Singh, Gobinder Singh, Kartar Singh, Balam Singh and Gurdip Kaur are stamp witnesses and they had fully corroborated the prosecution version regarding the manner in which the injuries were caused on their person by the accused. The ocular version was corroborated by the medical evidence Crl. Rev. No. 1071 of 2009 5 which was on record in the form of medico-legal reports and X-ray reports. The testimony of the injured, it was observed, cannot be discarded merely on the ground that there was no independent corroboration. The accused had not complained about their false implication. Besides, the discrepancies as raised by the learned counsel for the accused were observed to be minor in nature and these had occurred with the passage of time. The prosecution version, it was observed, cannot be disbelieved merely because no blood- stained cloth or earth was taken in possession. On the basis of the evidence and material on record, the accused were held guilty for the offences punishable under Sections 148, 324, 324/149, 325, 325/149 and 323 IPC. They were sentenced for varying terms for the offences under Sections 148, 324, 324/149, 325, 325/149 and 323 IPC. All the accused were sentenced to rigorous imprisonment for one year for the offence under Section 325 or Section 325/149 IPC as the case may be and for lesser term for the other offences, which were, however, ordered to run concurrently. The accused aggrieved against the order of the learned trial Magistrate preferred an appeal which has been dismissed by the learned Additional Sessions Judge, Mansa qua the petitioners. Sukhdev Kaur accused/non-petitioner was ordered to be released on probation for a period of one year on her furnishing probation bonds in the sum of Rs.10,000/- with an undertaking to keep peace and be of good behaviour during the period of one year and to appear and receive the sentence whenever called upon to do so during the said period. The petitioners aggrieved against the order of the Court of learned Additional Sessions Judge have preferred this revision petition. The learned Senior counsel appearing for the petitioners has submitted that there is a delay in the registration of the FIR inasmuch as the incident occurred on 27.2.1997 at about 8.00 p.m., whereas the FIR has Crl. Rev. No. 1071 of 2009 6 been registered on 28.2.1997 at about 12.05 p.m. It is submitted that even in the belated version, the prosecution has not explained the injuries on the persons of Roop Singh (petitioner No.4) and Sukhchain Singh (petitioner No.1). Roop Singh (petitioner No.4) had seven injuries on his person and ruqa (memo) was also sent to the Police Station but no action was taken on the same. Therefore, according to the learned Senior counsel, the prosecution suppressed the genesis of the occurrence. Both the parties are neighbours and they had fought over a petty issue regarding opening of a door in the street by the complainant. It is further submitted that in the FIR no role is attributed to Gurcharan Singh (petitioner No.5). Petitioners No.1 to 4 are residents of Borewal. Roop Singh (petitioner No.2) belongs to the in-laws of Sukhchain Singh (petitioner No.1). Gurcharan Singh (petitioner No.5) belongs to village Bappian and is a distant cousin of petitioners No.1 to 3 and he has been falsely implicated. Gurcharan Singh (petitioner No.3) has been substantively convicted under Section 323 IPC for causing simple injury to Gurvinder Singh (PW4). Therefore, it is submitted that the petitioners are liable to be acquitted and in any case benefit of probation is liable to be given to them. It is submitted that in any case no special reasons have been mentioned for not granting the concession of probation to the petitioners. The learned appellate Court had released Sukhdev Kaur on probation as she was an old lady of 75 years. However, the other accused who are petitioners were also liable to be given the said benefit. It is submitted that Gurcharan Singh is 40 years of age and is an Assistant Lineman in the Punjab State Electricity Board and he has been named as an accused because of his being a Government employee. In case his conviction is maintained, he is likely to loose his job. Crl. Rev. No. 1071 of 2009 7 In response, learned counsel for the State has submitted that the learned Courts below have found cogent and convincing evidence on record for convicting and sentencing the petitioners. The order as passed is not liable to be interfered with and nor does it warrant any interference by this Court. It is submitted that this Court in exercise of its revisional jurisdiction is not to re-appreciate the evidence and material on record and thereby come to a conclusion different from that which has been reached at by the learned Courts below. Therefore, it is submitted that the impugned judgment and order of the learned Additional Sessions Judge, Mansa is liable to be maintained and upheld. I have given my thoughtful consideration to the matter. The complainant Bahal Singh and his brother Kartar Singh had opened another door in the street as they were deciding to separate their residence. Sukhchain Singh (petitioner No.1) was averse to the idea of opening of a door by Bahal Singh and his brother Kartar Singh. On 27.2.1997 at about 8.00 p.m., Bahal Singh complainant, his brother Kartar Singh and his son Balam Singh were standing and conversing with each other in the street. In the meantime, the petitioners and Sukhdev Kaur wife of Hakam Singh came in the street duly armed. Sukhdev Kaur raised a ‘lalkara’ to teach a lesson to the complainant for opening another door in the street. On saying so, Sukhchain Singh (petitioner No.1) gave a ‘gandasa’ blow which hit Bahal Singh – complainant on his neck from its sharp side. Satgur Singh (petitioner No.2) gave a ‘gandasa’ blow to Bahal Singh which hit him from its reverse side of his left hand and then Darshan Singh (petitioner No.3) gave two ‘dang’ blows to Bahal Singh which hit him on his right arm and right wrist. Then Roop Singh (petitioner No.5) gave two ‘dang’ blows to Bahal Singh which hit on his head and on his left ear. Bahal Singh then Crl. Rev. No. 1071 of 2009 8 raised an alarm of ‘Mar Ditta Mar Ditta’ and on hearing his alarm, his granddaughter Gurdip Kaur daughter of Balam Singh and Joginder Singh son of Kartar Singh, besides, Gobinder Singh son of Kartar Singh came running from the house and they saw the occurrence. The assailants caused injuries to Gurdip Kaur the granddaughter of Bahal Singh, Kartar Singh brother of Bahal Singh and Gobinder Singh and Balam Singh nephews of Bahal Singh. The injured were taken to the hospital and all the injured were examined by Dr. Purshotam Goel, Medical Officer, Civil Hospital, Mansa (PW1). He found seven injuries on the person of Bahal Singh aged 70 years, besides, six injuries were found on the person of Gobinder Singh son of Kartar Singh and Balam Singh son of Kartar Singh had suffered six injuries. Gurdip Kaur daughter of Balam Singh received two injuries. Besides, Kartar Singh son of Mal Singh aged 70 years suffered six injuries. Both the Courts below have held on the basis of evidence and material on record that the prosecution case to be proved on the statements of injured witnesses who it was observed were stamp witnesses. The findings and conclusions have been concurrently reached at by the learned Courts below. The contention of the learned Senior counsel for the petitioner that there is a delay of registration of FIR is hardly of any significance. The incident occurred on 27.2.1997 at about 8.00 p.m. and the FIR has been registered on the next day i.e. 28.2.1997 at about 12.05 p.m. Keeping in view the nature of injuries that have been suffered by the complainant side, it cannot be said that the injuries have been fabricated so as to falsely implicate the petitioners. The depositions of the stamp witnesses, it was held, have inspired confidence. The delay even, if any, in registering FIR cannot, in the facts and circumstances of the case, be said to be fatal to the prosecution case. It is well-known that prompt lodging of a FIR is not an unmistakable Crl. Rev. No. 1071 of 2009 9 guarantee for the truthfulness of the prosecution version and neither is delay always fatal. It depends on the facts and circumstances of each case. In fact in the present case the injured were admitted in the hospital in early hours of 28.2.1997. It has come on record that Dr. Parshotam Goyal (PW1) examined the injured Gobinder Singh at 3.45 a.m., besides, Bahal Singh was examined at 5.15 am. The police was also informed and the FIR was registered at 12.05 pm on 28.2.1997. In the circumstances, it cannot be said that there was such delay which would affect the case of the prosecution. In fact in view of the nature of injuries and the consistent testimony of the injured witnesses who are stamp witnesses, it cannot be said that the prosecution case is false. As regards the injuries on the person of Roop Singh (petitioner No.4) and Sukhchain Singh (petitioner No.1) it may be noticed that the said injuries even though not explained, however, in view of the nature and extent of injuries suffered by the complainant side it cannot in the facts and circumstances be said that non-explanation of injuries suffered by Roop Singh (petitioner No.4) and Sukhchain Singh (petitioner No.1) would affect the prosecution case. This is moreso for the reason that the accused had come to the house of the complainant and caused injuries, which as already noticed were grave and serious. Therefore, petitioners No.1 to 5 are not entitled for the benefit of probation as they have been ascribed a specific role of having caused injuries on the persons of the complainant side and that too for trivial reason of opening a door in the street by the complainant. However, petitioner No.5-Gurcharan Singh has not been attributed any role in the occurrence. He is merely alleged to be carrying a ‘dang’. He belongs to village Bappiana and is a distant cousin of petitioners No.1 to 3 who are brothers being the sons of Hakam Singh. Besides, petitioner No.5 has been Crl. Rev. No. 1071 of 2009 10 substantively convicted for the offence under Section 323 IPC for causing a simple injury to Gurvinder Singh (PW4). He is also an Assistant Lineman in the Punjab State Electricity Board. Therefore, in case of his being imprisoned, he is likely to loose his job. In case of grant of benefit of probation, his case for retention in service would be liable to be considered by the concerned authorities of the Electricity Board in accordance with law. Keeping in view the nature of allegations against petitioner No.5 – Gurcharan Singh and the fact that he is an Assistant Lineman in the Punjab State Electricity Board, it would be just and expedient to grant the benefit of probation to him. Insofar as the other petitioners are concerned, no special circumstances are made out for granting them the benefit of probation. Accordingly, the criminal revision petition qua petitioners No.1 to 5 is dismissed. However, the sentence imposed by the learned Courts below on Gurcharan Singh (petitioner No.5) is set aside and he is ordered to be released on probation for a period of one year on his furnishing probation bonds in the sum of Rs.10,000/- with one surety in the like amount and an undertaking to keep peace and be of good behaviour during the said period. Besides, to appear and receive the sentence whenever called upon to do so during the said period. With the modification in the order of learned lower appellate Court to the extent that the sentence of Gurcharan Singh (petitioner No.5) is set aside and he be released on probation, the criminal revision petition stands dismissed. (S.S. SARON) JUDGE May 20, 2009 amit