Crl. Rev. No.2264 of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.2264 of 2006 Date of Decision: 8 - 12 - 2011 Guni Parkash and another .....Petitioners v. State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Bipan Ghai, Sr. Advocate with Mr.Mandeep Kaushik, Advocate for the petitioners. Mr.Anupam Sharma, AAG, Haryana. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Guni Parkash and his brother Mahi Pal, sons of Thath Singh were tried in a case arising out of FIR No.85 dated 6.4.1995 registered at Police Station Pundri under Sections 332, 353, 506/34 IPC. The Court of Judicial Magistrate Ist Class, Kaithal, vide its judgment dated 27.10.2003 held the petitioners guilty of offence under Sections 332, 353, 506 read with Section 34 IPC and vide a separate order dated 28.10.2003 sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- each under Section 332/34 IPC. In default of payment of fine, they were to further undergo rigorous imprisonment for a period of one month. They were further sentenced to Crl. Rev. No.2264 of 2006 [2] undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- each under Section 353/34 IPC. In default of payment of fine, they were to undergo further rigorous imprisonment for 15 days. The petitioners were also sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- each under Section 506/34 IPC. In default of payment of fine, they were to undergo further rigorous imprisonment for 15 days. All the sentences were ordered to run concurrently. Aggrieved against the same, the petitioners filed an appeal. The Appellate Court below upheld the conviction of the petitioners. However, it reduced the sentence of imprisonment to the half. Therefore, the petitioners were sentenced to undergo rigorous imprisonment for six months under Section 332/34 IPC. They were sentenced to undergo rigorous imprisonment for three months under Section 353/34 IPC and to undergo rigorous imprisonment for three months under Section 506/34 IPC. However, the sentence of fine was maintained. Criminal proceedings were set into motion on the basis of a ruqa Ex.PW8/A sent by ASI Ram Pal. On the basis of ruqa, formal FIR Ex.PB was registered. PW8 ASI Ram Pal in the ruqa stated that he along with companion police officials was on Government duty for making security arrangement for V.I.P visit. When he was going from Bus Stand of Village Pharal towards a street leading to school, he saw that 2/3 persons were giving fist blows to a person and were also abusing him. When he reached there, that person who was being given fist blows, was found to be Constable Sube Singh, who had visited the spot to obtain secret information in connection with V.I.P. duty. With the help of police officials, ASI Ram Pal PW8 got Sube Singh separated from the persons who were giving him Crl. Rev. No.2264 of 2006 [3] fist blows and learnt their names as Guni Parkash and Mahi Pal sons of Thath Singh. Other 4/5 persons went towards their houses. When ASI Ram Pal was having conversation with Constable Sube Singh, then accused along with 4-5 persons reached at the spot armed with lathies and gandasies. They raised a lalkara and made an attempt to assault ASI Ram Pal, who saved his life with the help of other police officials. The above-said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. On 26.4.1997, the petitioners were charged for offence under Section 332 read with Section 34 IPC, Section 353 read with Section 34 IPC and Section 506 IPC. The first charge stated that the petitioners voluntarily caused hurt to PW Ram Pal ASI and thereby committed an offence under Section 332 read with Section 34 IPC. They further voluntarily assaulted ASI Ram Pal while he was discharging his official duty and committed an offence under Section 353 read with Section 34 IPC. Lastly, they with common intention committed criminal intimidation by threatening ASI Ram Pal and thereby committed an offence under Section 506 IPC. The accused pleaded not guilty and claimed a trial. Prosecution commenced its evidence and examined Dr.S.S.Dahia as PW1, who on 6.4.1995 had examined Sube Singh. He found six injuries on his person which were contusions and swelling. According to opinion of the doctor, all the injuries were caused by blunt weapon and were simple in nature. HC Sube Singh injured appeared as PW7 and stated that on 6.4.1995, he was posted at Police Station Pundri. He had gone to Village Pharal where Power Minister Virender Singh had to come and workers of Crl. Rev. No.2264 of 2006 [4] the Kissan Union had made preparations to Gherao him. He was posted there on secret duty. When he was standing near the Primary school, then petitioners abused him and gave slaps and fist blows. At that time, ASI Ram Pal arrived there and due to his intervention, he was separated. He further stated that after some time accused armed with lathies and gandasies arrived there and gave threat to cause injuries to police officials. In cross- examination, this witness stated that when he had gone at the spot to collect the secret information, nobody was accompanying him. He further stated that ASI Ram Pal reached at the spot after one hour of the occurrence. He further stated that on the day of occurrence, workers of Bhartiya Kissan Union had participated in an agitation against the Government in support of their demands but he was not aware that on that day they were arrested or not. PW8 ASI Ram Pal reiterated as to what was stated by him in the ruqa. In cross-examination, he stated that at the time when Sube Singh was given injuries, he was not in police dress, as SA always remain in a civil dress. I have heard Mr.Bipan Ghai, Senior Advocate assisted by Mr.Mandeep Kaushik, Advocate appearing for the petitioners and Mr.Anupam Sharma, Assistant Advocate General, Haryana. In the present case, as per prosecution story, occurrence had taken place in two parts. Firstly, petitioners had given fist blows to Sube Singh and abused him. It is stated that ASI Ram Pal got separated Constable Sube Singh from the petitioners. Thereafter, the petitioners again arrived there with lathies and gandasies along with other persons. At that time, they had made an attempt to cause injuries to the police party and due Crl. Rev. No.2264 of 2006 [5] to the tactful handling by ASI Ram Pal, no person was injured. Thus, in the second part of the occurrence, no injury has been caused to anybody. The only person injured was Constable Sube Singh. Therefore, second part of the story seems to be improbable, unconvincing and an exaggeration, simply because only Constable Sube Singh was given fist blows and abuses in first part of the occurrence. When the police party led by ASI Ram Pal had separated Constable Sube Singh from the accused, therefore, there was no occasion for the accused to go back and come armed. Even if, it is believed for the sake of argument that they had come back with arms, then why have they not caused any injurTaking probabilities into consideration, this Court will disbelieve the second part holding that due to consultations and to aggravate the sentence, the story regarding second part was concocted. Having held that second part of the prosecution version had not taken place, this Court has to decide as to which offence the petitioners had committed. Admittedly, Constable Sube Singh was not in police uniform. He was in civil dress. Therefore, petitioners never knew that he was a public servant. Hence, they gave him fist blows believing him to be an ordinary person from public. Constable Sube Singh in cross-examination has stated that he never knew the accused earlier. To attract Sections 332 and 353 IPC, it is imperative that accused must have the knowledge that the person to whom they are giving the injuries is a public servant. The prosecution has failed to prove that the accused had the knowledge that Constable Sube Singh was a public servant. That being so, offence, if any, will not fall under Sections 332 and 353 IPC but will fall under Section 323 IPC. Thus, this Court acquit the petitioners Crl. Rev. No.2264 of 2006 [6] for offence under Sections 332 and 353 IPC. However, they are held guilty of offence under Section 323 IPC. The lower Appellate Court has awarded the petitioners three months rigorous imprisonment for offence under Section 353 IPC. Section 323 IPC is lesser offence than Section 353 IPC, as Section 353 IPC prescribes maximum sentence which may extend to two years, whereas under Section 323 IPC, the maximum sentence which can be awarded is one year. Counsel for the State has placed on record affidavit dated 6.12.2011 of Sanjeev Kumar, Deputy Superintendent, District Jail, Karnal, according to which the petitioners had undergone 1 month and 23 days of actual sentence. Occurrence in the present case had taken place in the year 1995. A period of more than 16 years has already elapsed. Therefore, for the reasons stated above and taking into consideration nature of offence, sufferance of protracted trial, this Court is of the view that the sentence already undergone by the petitioners will suffice the purpose. Hence, the sentence awarded to the petitioners under Section 323 IPC is reduced to the period already undergone. With the aforesaid observations, the present revision petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) December 8, 2011 JUDGE RC