Criminal Appeal No. 448-SB of 1997 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Appeal No. 448-SB of 1997 Date of Decision: 21.4.2008 Bhajan Singh and Others …Appellants Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: None for the appellant. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. Bhajan Singh son of Karnail Singh, Teja Singh son of Jora Singh, Charan Singh son of Bharpur Singh and Seera Singh son of Sukhdev Singh along with one Zora Singh who is said to have died during the trial were tried in case FIR No. 91 dated 17.8.1989 registered at Police Station Sardulgarh under Sections 307, 326, 325, 120-B IPC. FIR Ex.PA/1 was lodged at the instance of one Baljinder Singh who stated that he is resident of Sardulgarh and is an agriculturist. On 17.8.1989 at about 7.00 A.M. when he along with his father Balbir Criminal Appeal No. 448-SB of 1997 2 Singh, Billu Singh son of Rup Singh and Jagsir Singh son of Gurtej Singh were going to Bus Stand Sardulgarh near the Gurudwara Sahib, Bhajan Singh armed kulhari, Charan Singh armed with gandasa, Seera Singh armed with dang and Teja Singh son of Jora Singh armed with gandasi came out of School. They were raising lalkaras. Bhajan Singh gave a lalkara that Balbir Singh should not be allowed to escape alive and should be taught a lesson for abusing after taking liquor. On that Bhajan Singh gave two kulhari blows on the head of Balbir Singh, consequently he fell down on the ground while he was lying fallen Charan Singh and Teja Singh gave gandasa blows on his head. Bhajan Singh gave a kulhari blow in his left hand. Charan Singh gave gandasa blow twice which hit on the left leg and right arm of Balbir Singh. Seera Singh also gave a dang blow on his back. On raising of alarm, all the four accused decamped from the spot along with their respective weapons. The cause of grudge stated by the complainant is that his father Balbir Singh under the influence of liquor was habitual of giving abuses and the accused party was under the impression that he was abusing them. It was also stated in the FIR that Zora Singh is inimical towards the complainant. Zora Singh was sought to be tried with the aid of Section 120- B IPC. He is stated to have died during the trial. Bhajan Singh, Charan Singh, Seera Singh and Teja Singh, all were arrested on 24.8.1989. A perusal of the file shows that Bhajan Singh, Charan Singh and Teja Singh came out of the jail on bail on 17.10.1989 as they had undergone about two months, whereas Seera Singh came out of bail on Criminal Appeal No. 448-SB of 1997 3 21.9.1989 and he had undergone one month. Appellants have been convicted by the Court of learned Additional Sessions Judge, Bathinda, under Section 324, 323 and 34 IPC and sentenced as under:- “I have heard the convicts and their counsel on the quantum of sentence. I have also recorded their statements separately in this regard. Convicts states that they are first offenders and facing the trail since long, so lenient view may be taken in the matter of sentence. Keeping in view of the circumstances and nature of the injuries, I sentence the convicts as under:- Convicts Bhajan Singh, Charan Singh, Teja Singh to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- each or in default of payment of fine to suffer further R.I. for a period of three years under S. 324/34 IPC. Convict Seera Singh to undergo R.I. for a period of one year and to pay a fine of Rs.1,000/- or in default of payment of fine to suffer further R.I. for a period of three months while convicts Bhajan Singh, Charan Singh and Teja Singh to undergo R.I. for a period of one year each U/s 323/34 IPC. Both the sentences shall run concurrently. Fine, if realized a sum of Rs.3,000/- be given to the injured Balbir Singh by way of compensation after the Criminal Appeal No. 448-SB of 1997 4 expiry of period of appeal/revision, if any or result thereof”. Aggrieved against the same appellant had filed Criminal Appeal No. 448-SB of 1997. After investigation of the FIR, challan was submitted. All were charged for the offences under Section 120-B IPC along with Zora Singh. Bhajan Singh was substantively charged for an offence under Section 326 IPC for causing grievous injury to Balbir Singh, whereas others were charged with the aid of Section 34 IPC. Charan Singh was also substantively charged for an offence under Section 326 IPC for causing grievous injuries to Balbir Singh and others were charged with the aid of Section 34 IPC. All the appellants were also charged for an offence under Section 307 IPC. Complainant Baljinder Singh appeared as PW.4 and Balbir Singh, injured, as PW.5. Billu Singh, another eye witness appeared as PW.6. Besides these eye witnesses, prosecution examined PW.10 Balwinder Singh, who is witness to the recovery of weapons at the instance of the appellants. PW.11 Jagjit Singh, Deputy Superintendent of Police, had recorded statement of Baljinder Singh Ex.PA on the basis of which FIR Ex.PA/1 was recorded. Sukhdev Singh, Assistant Sub Inspector, had died. Therefore, PW.11 Jagjit Singh, Deputy Superintendent of Police, also identified his signatures and proved the investigation carried out by Sukhdev Singh, Criminal Appeal No. 448-SB of 1997 5 Assistant Sub Inspector, deceased. PW.12 Bagga Singh, Head Constable, has tendered his affidavit Ex.PW.12/A. I have not discussed the medical evidence of the witnesses as in the impugned judgment, learned Additional Sessions Judge has not only noticed the medical evidence but has also discussed the same and has returned a finding that no offence under Sections 326 & 307 IPC is made out. No appeal has been preferred by the State of Punjab against the acquittal of appellants for an offence under Sections 307 & 326 IPC. Therefore, It would be appropriate here to reproduce medical evidence and discussion thereupon by learned Additional Sessions Judge in the impugned judgment:- “The blow of dang will cause either contusion or bruise. Bruise do not appear for number of days. This view is further supported by Parikh's Text Book of Medical Jurisprudence and Toxicology and at page No. 239 Fifth Edition 1990 which deals with bruises and contusions. In this chapter it is mentioned: “A superficial bruise usually appears red and swelling may come on almost at once. A deep bruise may take one or two days to appear. Therefore, living person, who have been assaulted should have a second examination after an interval Criminal Appeal No. 448-SB of 1997 6 of one or two days when they may show bruising which has only been indicated originally by tenderness on presence or slight swelling”. In the present case, the injured has been examined twice/thrice on the same day i.e. 17.8.1989 at Bathinda, as well as C.M.C. Ludhiana. No second examination of the injured had taken place on the second/third day as mentioned above. So for the reasons mentioned in the foregoing discussion, I have no doubt that the doctors failed to identify the injuries on the back of injured Balbir Singh which might have appeared on the second or third day as the same were inflicted with dang possessed by accused Seera Singh. 14. Lastly, it has been contended by the ld. defence counsel that in view of the medical evidence the present case does not fall within the mischief of S. 307/326 & 120-B IPC. I agree with this submission of the ld. defence counsel that the offence does not fall under S. 120-B IPC. Prosecution has not examined any witness to prove the prior agreement or meeting of mind before causing injuries to the injured Balbir Singh. Moreover, Zora Singh accused related with conspiracy has died. Criminal Appeal No. 448-SB of 1997 7 Further to prove offence under S. 307 and 326 IPC, then prosecution has examined three doctors i.e. PW.1, PW.3 and PW.7. PW.7 Dr. Tirath Ram Goyal, the then Medical Officer, Civil Hospital, Bathinda first of all examined Balbir Singh injured on 17.8.89 and found the following injuries:- 1. Lacerated wound 15 cm X 1 cm on the forehead 3 cm above the eye brow. It was bone deep. Fresh bleeding was present and X-ray was advised. 2. Lacerated wound 7 cm X 1 cm on the left parietal region oblique in direction. It was bone deep. Fresh bleeding was present. It was 7 cm from the left pinna and X-ray was advised. 3. Lacerated wound 8 cm X 1 cm on the occipital region. It was transverse in direction. It was bone deep and fresh bleeding was present. X-ray was advised. 4. Incised wound 7 cm X 1 cm on the inner side of right hand extending from palmer surface to Criminal Appeal No. 448-SB of 1997 8 the dorsal surface. It was bone deep. Fresh bleeding was present. X-ray was advised. 5. Incised wound 4 cm all around the terminal phalanx of left little finger the terminal phalanx was hanging with a skin tag. Underlying bone was fractured and fresh bleeding was present. 6. Lacerated wound 1 cm X 0.5 cm on the front and upper part of left leg. Fresh bleeding was present. It was bone deep and X-ray was advised. This witness declared injury No.5 as grievous and incised injuries could be caused by the sharp edged weapon like gandsa, kulhari and the other injuries could be caused by a blunt weapon including back side of gandasa. PW.1 Dr. Monika Arora of CMC Ludhiana deposed that she medically examined the injured Balbir Singh on 17.8.89 and she noted the following injuries in her preliminary examination:- 1. Contusion over left lumber area: Left blue eye: Head Injury Criminal Appeal No. 448-SB of 1997 9 1. Lacerated wound over forehead; 2. Laceration over left parietal area; 3. Laceration right parietal area. Laceration over right hand (Ulnar border). Puncture wound left shin (anteriorly) with fracture bones. Left 5th finger – Laceration (open fracture of middle phalanx. She also deposed that injured was referred to Neuro Surgery/Ortho/General surgery. PW.3 Dr. Dharminder Mohan, House doctor Neurosurgery department of C.M.C. Ludhiana deposed that she found the following on the person of injured Balbir Singh:- On examination patient was conscious, fully oriented, vital stable, CCS 15/15, Pupils B/L normally reacting, Motor system normal: DIR's normal, Laceration of scalp-Frontal area 19 cms long. Left parietal area 8 cm long; Right parieal 4 cms long; Occipital area 14 X 10 X 4 cms long. Fracture left leg, Fracture left little finger. Fracture 5th Metacarpal right; Base line investigations were normal. 15. In his cross-examination PW.7 Dr. Tirath Criminal Appeal No. 448-SB of 1997 10 Ram Goyal admitted that injuries No.1 and 2 could be sustained by fall. Similarly injury No.3 could also be sustained by fall while injury No.4 and 5 could be self suffered. Although in his evidence he has mentioned that after x-ray report injuries No.4 and 6 were found grievous, but the said X-ray report has not been placed on file by the prosecution. Similarly PW1 who conducted the preliminary examination deposed that injured was referred to Neuro Surgeon/Ortho/General surgery. In her cross- examination she has admitted that injured was conscious at the time of admission and remained conscious till he was referred to Ortho/general surgery. PW1 has further admitted that she did not see any X-ray before or after the examination of the injured and the fractures mentioned by her on the left shin was suspected by her. Similarly the other fracture of the fifth digital phalanx was also observed on the basis of physical examination where there was no x-ray report to corroborate the same. Dr. Dharminder Mohan PW3 also mentioned fracture on the left and that of little finger, but his observation was based on the examination conducted by Dr. Rajiv Seth and Dr. Jyad Mukherji his seniors who have not been examined in the Court by the prosecution. In his cross-examination Criminal Appeal No. 448-SB of 1997 11 he has also admitted that injured remained conscious throughout and was discharged on 21.8.89 i.e. four days after the date of admission. There was no fracture of the scalp. He has also deposed that he did not examine the patient and simply discharged the patient. He further stated that he do not have x-ray report with him and not brought the radiographs with him. He further deposed that he was junior to Dr. Rajiv Seth and Dr. Jyad and has two years experience. So from all the medical evident it is clear that no x-ray was done or at least no x-ray report or skiagrams have been produced by the prosecution to prove the nature of injuries on the person of injured. From the above evidence it is clear that injuries were declared grievous without any x-ray examination. PW1 only referred the patient while PW3 was junior doctor having two years experience and simply discharged the injured. Even PW.7 Dr. Tirath Ram Goyal who first of all examined the patient failed to bring any evidence regarding x-ray of the patient. PW1 has mentioned the fractures on the basis of visibility with a naked eye. In these circumstances, the contention of the ld. defence counsel has sufficient force. It is quite possible that underneath the bone might be having scratch or superficial cut. Criminal Appeal No. 448-SB of 1997 12 No x-ray was done to prove the depth of cut on the finger or on the shin. The observation with a naked eye cannot be accepted when a surer opinion could be given after getting injuries x-rayed. In case Jassa Singh and others Vs. State of Punjab 1983(1) Recent Criminal Reports 406, the injuries were declared grievous on the basis of probing the same with finger only and no x-ray examination was done to ascertain the depth of the bone cut. It was held that the doctor himself could not deny that the depth of the cut could not be given, in the examination by a naked eye especially when surer opinion could be obtained after getting the injury x-rayed. It has come in evidence that scalp of the injured was neither cut nor fractured. The depth of the injury was minimal. It is highly improbable that the injury would have worsened the condition of the injured to such an extent that it would have prove dangerous to life as the injured remained conscious throughout hospitalization and was discharged on the fourth day. Prosecution has failed to prove if the axe or sharp edged weapon used by the accused was in fact used from its sharp side. Normally when the witness says that an axe or gandasa is used there is no warrant for supposing that what the witness Criminal Appeal No. 448-SB of 1997 13 means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witnesses as to whether a sharp edged or a piercing instrument was used as a blunt weapon. In the present case, however, three injuries are on the head, but the injuries are simple in nature though deadly weapons were used. The fractures mentioned on little finger and leg could not be proved in absence of x-ray report. This case is viewed from another angle also as the injured was admitted in the hospital on 17.8.1989 and was discharged on 21.8.1989 i.e. on the fifth day. PW.3 Dr. Dharminder Mohan who has mentioned the fractures etc. of the patient and has also mentioned the treatment given to the patient during hospitalization at CMC Ludhiana. He has specifically mentioned that the patient was not applied POP meaning thereby no plaster was applied on the patient. He has also mentioned that the patient was fully oriented and moving all four limbs at the time of discharge i.e. 21.8.89. From this it is abundantly clear that the patient was not having fractures as mentioned by the doctor in their examination-in-chiefs. Had there been any fracture the four limbs could not have cured within a period of four days without even applying of Criminal Appeal No. 448-SB of 1997 14 plaster (POP). 16. From the above discussion, I am of the considered view that benefit of doubt, therefore, be given to all the accused with regard to injuries intended to be caused and in my opinion the offence is not one under S. 307 and 326 IPC. But since the injuries on the head, finger and shin were caused by an instrument which is used as a weapon of offence and is likely to cause death, the offence would ;be one under S. 324 IPC. As accused Bhajan Singh, Teja Singh and Charan Singh were armed with sharp edged weapons and all of them inflicted injuries on the head and other parts of the body of the injured, as such all of them are liable under S. 324 IPC. There is no dispute regarding use of dang by accused Seera Singh on the back of the injured, as such under S. 323 IPC is also proved”. As already observed, no appeal has been preferred, the complainant has preferred Criminal Revision No. 1062 of 1997 that appellants be convicted for an offence under Section 326 IPC. The same has been ordered to be admitted and clubbed with this appeal for disposal. Since there was no challenge to the acquittal of the appellants under Sections 307 & 326 IPC and the view taken by learned Additional Sessions Judge is not perverse, therefore, no interference is called for. I have perused the testimony of PW.4 Baljinder Singh, PW.5 Criminal Appeal No. 448-SB of 1997 15 Balbir Singh, injured, and PW.6 Billu Singh. Their testimony aspire confidence and cannot be brushed aside because the witnesses are relations. This Court cannot become oblivious of the fact that Balbir Singh, is injured and he will be last person to falsely implicate the accused. He has been candid enough to say in his testimony that he has been given injuries because he used to abuse under the influence of liquor. Therefore, relying upon the testimony of eye witnesses, I maintain the conviction of the appellants under Sections 324 and 323 read with Section 34 IPC. In the present case, occurrence has taken place in September 1989. About 19 years are going to lapse. As stated earlier, three appellants Bhajan Singh, Charan Singh and Teja Singh have undergone two months of their sentence, whereas Seera Singh has undergone one month of his sentence. In the present case, injuries have been caused because injured Balbir Singh used to abuse under the influence of liquor and it has been also noticed in the judgment by learned Additional Sessions Judge that the appellants were the first offenders. No useful purpose will be served by sending the appellants behind the bars. Thus, their sentence is reduced to already undergone. However, sentence of fine is enhanced to Rs.15,000/- qua each of the appellants. The amount of Rs.60,000/- in case recovered shall be disbursed to Balbir Singh, Injured. Learned Chief Judicial Magistrate, Bathinda, shall call upon the appellants to deposit the fine. The fine already paid shall be adjusted. Learned Chief Judicial Magistrate, Bathinda will give a sufficient time to the appellants to deposit the amount of fine. In case fine is not deposited by the appellants, the Criminal Appeal No. 448-SB of 1997 16 benefit in reduction of sentence granted to them shall not accrue to them and they shall undergo the sentence awarded by learned trial Court. With these observations, the present appeal is disposed off. (Kanwaljit Singh Ahluwalia) Judge April 21, 2008 “DK”