Criminal Appeal No. 387-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 387-SB of 1997 Date of Decision: 01.02.2010 Ram Bhaj son of Baldeva r/o village Sangli, Distt. Rohtak. ... Appellant Versus State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. J.V. Yadav, Advocate, for the appellant. Mr. Kshitij Sharma, AAG, Haryana, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction, dated 30.04.97, and the order of sentence, dated 10.05.97, rendered by the Court of Additional Sessions Judge, Rohtak, vide which, it convicted the accused, for the offence, punishable under Section 307 of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs. 3,000/-, and, in default thereof, to further undergo rigorous imprisonment, for a period of one year. Criminal Appeal No. 387-SB of 1997 2 2. The case of the prosecution runs, in the manner, that on 13.06.92, at about 3.00 PM, about 50-60 persons of the village, had gone, to the village pond, for the construction of metalled platform (Ghat). The name of the pond is Gorewal. The house of Baldeva, accused (since acquitted), abuts that line, where the metalled platform, was to be constructed. The villagers, asked Baldeva, to remove the earth, supporting the wall of his house, but, he had been putting them off, on one pretext or the other. Baldeva, accused (since acquitted), armed with lathi came there. Dharambir, accused (since acquitted), armed with a jaili also came there. Baldeva, exhorted that, he shall teach a lesson for removing the earth. Ram Bhaj, accused (now appellant), armed with gandasi, Hawa Singh, accused (since acquitted), armed with gandasi, Balraj and Rajender, accused (since acquitted), armed with lathi each reached there. Baldeva, gave a lathi blow, on the right leg of Jagdish and Dharambir, gave a jaili blow, on his left hand. Hari Chand, Hukam Chand and many other persons came to rescue him. Hari Chand, was given gandasi blow, by Ram Bhaj, on the temporal region. Hawa Singh accused (now acquitted), gave a gandasi blow, on the head of Hari Chand. Ram Phal and Chand Ram, rescued them. Jagdish, and, Hari Chand, were taken to Medical College & Hospital, Rohtak. On the basis of the statement of Jagdish, the first information report, was registered. The accused were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court of the Committing Criminal Appeal No. 387-SB of 1997 3 Magistrate, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. After the case was received by commitment, in the Court of Sessions, charge under Sections 148, 307 read with Section 149, 323 read with Section 149, and 325 read with Section 149 of the Indian Penal Code, was framed, against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. S.C. Naval (PW1), who medico-legally examined Hari Chand son of Khem Chand, and found as many as eight injuries, on his person, Hukam Chand son of Harphul Singh, and found as many as five injuries, on his person, and, Jagdish, and found as many as two injuries, on his person. Injury No. 1, on the person of Hukam Chand, was declared grievous in nature. Injury No. 2, on the person of Jagdish, was opined, to be grievous in nature. Injuries No. 1 and 2, on the person of Hari Chand, as per the report PD/2 of the Surgeon, were declared to be dangerous to life. 6. Dr. V.S. Rathe (PW2), declared Hari Chand, unfit to make statement, on 27.06.92, at about 6.45 PM. Similarly, Dr. Anand Rai Bansal, declared Hari Chand, unfit to make statement, on 29.06.92, vide opinion PH/3. Dr. P.K. Gupta, opined that Jagdish, was fit to make statement, on 13.06.92, at about 8.45 PM. 7. Dr. Randhir Singh Kundu (PW3), gave the opinion exhibit Criminal Appeal No. 387-SB of 1997 4 PH/7, PH/8, PH/9, and, PH/10, whereas, Dr. Ish Chadha (PW4), gave the opinion PH/13, PH/14, and, PH/16. 8. Dr. Sudhir Goel (PW5), medico-legally examined Jagdish son of Ram Kishan, and found fracture of 4th metacarpal of his left hand. He also medico-legally examined Hukam Chand son of Harphul, and found fracture of lateral epicondyle left humerus. He also medico- legally examined Baldeva and Ram Bhaj. 9. Dhani Ram Saini, Draftsman (PW6), proved the scaled plan PL. 10. Jagdish (PW7), is the injured, in this case. Hari Chand (PW8), and, Hukam Chand (PW9), are the injured, in this case. They deposed, in terms of the prosecution version, in all material particulars. 11. Mange Ram, Inspector (PW10), proved his report PN. 12. Ram Phal, (PW11), also deposed with regard to the injuries, having been caused, on the person of the injured. 13. Dr. Nidhi Mittal, Consultant Radiologist (PW12), radiologically examined Hari Chand, and found fracture of right side temporal parietal bone and gave report PO. 14. Satbir Singh, Head Constable (PW13), was handed over the ruqa, by the Moharrir Head Constable. 15. Kaptan Singh, Assistant Sub Inspector (PW14), partly investigated the case. 16. Dr. S.P. Yadav, Associate Professor (PW15), proved his operations notes. Thereafter, the prosecution closed its evidence. Criminal Appeal No. 387-SB of 1997 5 17. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They stated that, in fact, the complainant and the members of his party caused injuries, on their person, and, in self-defence, they caused injuries, on the person of the complainant and the members of his party. They also examined Dr. A.P. Sharma, Medical Officer (DW1), who declared the injuries, on the person of Ram Bhaj, as simple in nature. He also medico-legally examined Hawa Singh and Rajender. 18. Dr. Sudhir Goyal, Private Practitioner (DW2), medico- legally examined Ram Bhaj son of Baldeva and found fracture of his third metacarpal right hand. He also medico-legally examined Hawa Singh son of Lehri Singh, and found fracture of left side lower end ulna. He also medico-legally examined Baldeva son of Shiv Lal, and found fracture of terminal phalanx left thumb. Thereafter, the accused, closed their defence evidence. 19. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced Ram Bhaj, accused, as stated above, whereas, it acquitted the remaining accused. 20. Feeling aggrieved, the instant appeal, has been filed by Ram Bhaj, appellant. 21. I have heard the Counsel for the parties, and, have gone the Criminal Appeal No. 387-SB of 1997 6 evidence and record of the case, carefully. 22. The Counsel for the appellant, submitted that, no offence, punishable under Section 307 of the Indian Penal Code, was constituted, from the evidence, produced by the prosecution, but, the trial Court, fell into a grave error, in recording conviction and awarding sentence, for the said offence, to Ram Bhaj, accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. For ascertaining, as to whether, an offence, punishable under Section 307 of the Indian Penal Code, is made out or not, the Court is required to take into consideration, the nature and the number of injuries, caused by the accused; the parts of the body of injured, on which, the injuries, were caused; the weapons of offence, wielded by the accused; and his intention to cause the injuries. Dr. S.C. Naval, PW1, in clear-cut terms stated, that the Surgeon, gave his report PD/2, and opined, that injuries No. 1 and 2, i.e. incised wound of the size of 10 x 1 x 1 cm, on the right parietal region and bleeding from the ear of Hari Chand, were dangerous to life and could result in his death, if the timely medical aid, had not been provided. In the face of the medical opinion of the Surgeon, it could not be said, that the offence, punishable under Section 307 of the Indian Penal Code, was not made out. Ram Bhaj, accused, chose the head of Hari Chand, as the site, on which, he caused injuries, which were declared dangerous to life. The very intention of Ram Bhaj, appellant, in causing such injuries, on the person of Hari Chand, injured, could very well be gauged. In State of Criminal Appeal No. 387-SB of 1997 7 Maharashtra Vs. Balram Vama Patil (AIR 1983 S.C. 305), it was held that to convict under Section 307 of the Indian Penal Code, it is not necessary, to show that the bodily injury capable of causing death was inflicted, but what the Court has to see, is as to whether, the act irrespective of its result, was done with the intention or knowledge and, under such circumstances, mentioned in this Section. Attempt need not be an ultimate act. It is sufficient, if there is an intent, coupled with some over-tact in execution thereof. The submission of the Counsel for the appellant, that no offence, punishable under Section 307 of the Indian Penal Code, was constituted, being without merit, must fail, and the same stands rejected. 23. It was further submitted by the Counsel for the appellant, that, in fact, the complainant and the members of his party, were aggressors, whereas, the accused, was aggressive. He further submitted that the Court below, did not take into consideration, this aspect of the matter, and, thus, fell into a grave error, in recording conviction and awarding sentence, to the appellant. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. In para No. 24 of its judgement, the trial Court, took into consideration, the injuries, caused on the person of the members of the accused party and the injuries caused on the complainant and the members of his party as well as the prosecution and defence evidence. The Court below, thus, came to the conclusion, that it was a case of free-fight, and the accused, could only be held liable for their individual acts. The Court below, did Criminal Appeal No. 387-SB of 1997 8 not agree with the submission of the Counsel for the accused, that the complainant and the members of his party were aggressors. The Counsel for the appellant, at the time of arguments also submitted, that a cross-case, was registered, against the complainant and the members of his party, which was still pending. It was a case, in which, both the parties, took law into their own hands, and caused injuries, on the person of each other. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 24. It was next submitted by the Counsel for the appellant, that the substantive sentence, awarded to the appellant, being highly excessive be suitably reduced, as he has been facing the agony of protracted criminal proceedings since 13.06.92, the date, when the first information report, was registered, against him. The submission of the Counsel for the appellant, in this regard, appears to be correct. Since the appellant, has been facing the protracted criminal proceedings, for the last more than 17 years, he must have learnt a lesson by now. The substantive sentence, awarded to the appellant, appears to be excessive. The ends of justice shall be met, if the substantive sentence, awarded to the accused, by the trial Court, is suitably reduced. The submission of the Counsel for the appellant, to this extent, is accepted. 25. For the reasons recorded above, the appeal, is partly accepted. The judgement of conviction is maintained. The order of substantive sentence, is modified, in the manner, that the appellant, Criminal Appeal No. 387-SB of 1997 9 shall undergo rigorous imprisonment, for a period of 07 years, instead of 10 years, awarded by the trial Court. The sentence of fine, and, in default of payment thereof, however, shall remain unaltered. 26. The Chief Judicial Magistrate, is directed to comply with the judgement, in accordance with the provisions of law, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, promptly, on receipt of a copy of the judgement. 01.02.2010 (SHAM SUNDER) AMODH JUDGE