Punjab-Haryana High Court
Kuldeep Singh vs State Of Haryana on 13 February, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
Crl.Appeal No. S- 929-SB of 2003 -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision:13.2.2014
Crl.Appeal No. S- 929-SB of 2003
Kuldeep Singh
---Appellant
Versus
State of Haryana
---Respondents
Crl.Appeal No.- 1096-SB of 2003
Kuldeep Singh and others
---Appellants
Versus
State of Haryana
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Ms. Baljit Mann, Advocate
for the appellant( In CRA-S- 929-SB of 2003)
Mr.G.S.Sidhu, Advocate
for the appellants (In CRA-S- 1096-SB of 2003)
Mr.Anupam Sharma, AAG,Haryana
for the respondent-State
Mr. S.S.Sidhu, Advocate
for the complainant.
***
REKHA MITTAL, J.
By way of this order, I shall dispose of Criminal Appeal No. S-929-SB of 2003 titled "Kuldeep Singh vs. State of Haryana" and Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -2- Criminal Appeal No. S- 1096-SB of 2003 titled "Kuldeep Singh and others vs. State of Haryana" as these are the off shoot of judgment dated 7.4.2003 passed by the Additional Sessions Judge, Sirsa and involve identical questions of law and facts for adjudication.
The facts as noticed from the judgment of the trial Court reads as follows:-
On 29.9.1997, Sukhbir Singh son of Dalip Singh made a statement that at about 8-00 p.m., he along with Surjit Singh and Kulwant Singh had gone to Railway Station, Kalanwali at about 9.30 a.m. to arrange labour for picking up cotton balls. He was attacked by all the accused, in front of office of the Assistant Station Master at Platform No. 1. Kuldeep Singh son of Baldev Singh was armed with kirpan, Darshan Singh was armed with a lathi and Kulwant Singh, Gurdev Singh and Kuldeep Singh sons of Jagga Singh were armed with gandasis. Gurdev Singh raised a lalkara that complainant should be taught a lesson for opposing his wife in elections. Kuldeep Singh raised a lalkara that complainant be taught a lesson for appearing as a witness in a criminal case against his brother Surjit Singh. All the accused participated in the attack and caused injuries to the complainant with their respective weapons. He fell down after sustaining injuries. Surjit and Kulwant continued raising alarm seeking help. Assuming him to be dead, the accused left the scene of crime.
On completion of evidence, challan was presented in the Court against Kuldeep Singh son of Baldev Singh and Kulwant Singh son of Jagir Singh. The case was committed to the Court of Sessions after necessary compliance with the provisions of Section 207 of the Code of Criminal Procedure (for short "the Code"). During course of trial, accused Kuldeep Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -3- Singh son of Jagga Singh, Gurdev Singh and Darshan Singh were summoned to face trial under Section 319 of the Code.
The accused were charged for commission of offence punishable under Sections 148, 149, 307 IPC to which they pleaded not guilty and claimed trial.
To prove its case, the prosecution examined as many as 08 witnesses namely, Dr. Joginder Singh, Medical Officer, Civil Hospital, Sirsa PW1, Dr. S.L.Aggarwal, Medical Officer, General Hospital, Sirsa PW2, Sukhbir Singh, injured-complainant PW3, Kulwant Singh, an eye witness to the occurrence PW4, Dr. Vivek Bhadu, Post Graduate Student, Medical College, Rohtak PW5, ASI Harnam Singh PW6, ASI Krishan Chander PW7 and constable Raj Kumar PW8.
The statements of the accused were recorded in compliance with the provisions of Section 313 of the Code through which they denied the incriminating evidence put to them and pleaded their false implication. They also raised the plea of alibi by stating that they were present at a place than the scene of crime. However, they examined Ram Singh DW1, Balkaran Singh DW2, Mander Singh DW3, Ajaib Singh DW4 and Kaur Singh DW5.
After having heard counsel for the parties and appreciating the evidence adduced on record, the learned trial Court held the accused guilty of offence charged against them and accordingly they were sentenced as detailed hereinbelow:-
Kuldeep Singh son of Baldev Singh Under Section 307 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 20,000/-. In default of payment of fine to further undergo Saini Paramjit Kaur rigorous imprisonment for a period of two years. 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -4-
Under Section 148 read To undergo rigorous imprisonment for three years. with Section 149 IPC Kulwant Singh son of Jagir Singh Under Section 307 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 20,000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of two years.
Under Section 148 read To undergo rigorous imprisonment for three years. with Section 149 IPC Kuldeep Singh son of Jagga Singh Under Section 307 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 20,000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of two years.
Under Section 148 read To undergo rigorous imprisonment for three years. with Section 149 IPC Gurdev Singh son of Joginder Singh Under Section 307 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 20,000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of two years.
Under Section 148 read To undergo rigorous imprisonment for three years. with Section 149 IPC Darshan Singh son of Jangir Singh Under Section 307 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 20,000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of two years.
Under Section 148 read To undergo rigorous imprisonment for three years. with Section 149 IPC Feeling aggrieved by the judgment of the learned trial Court, one appeal has been preferred by Kuldeep Singh son of Jagga Singh and the other appeal has been preferred by Kuldeep Singh son of Baldev Singh, Kulwant Singh son of Jagir Singh, Gurdev Singh son of Joginder Singh and Darshan Singh son of Jangir Singh. However, during pendency of the appeal, Kuldeep Singh son of Baldev Singh and Gurdev Singh son of Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -5- Joginder Singh passed away. In this manner, the Court is left to decide the culpability of appellants Kuldeep Singh son of Jagga Singh, Kulwant Singh and Darshan Singh.
I have heard Ms. Baljit Mann, Advocate representing Kuldeep Singh son of Jagga Singh, Mr. G.S.Sidhu, counsel for Kulwant Singh and Darshan Singh as well as counsel representing the State of Haryana assisted by Mr. S.S.Sidhu, Advocate, counsel for complainant Sukhbir Singh.
Counsel representing Kuldeep Singh son of Jagga Singh has fairly conceded that there is no substantial ground to assail the judgment passed by the learned trial court in view of merits of the case. However, it is strenuously submitted that during pendency of the appeal, a compromise has been arrived at between the complainant and Kuldeep Singh appellant and the complainant has filed an affidavit in this regard in the Court, therefore, the sentence awarded by the learned trial Court against Kuldeep Singh son of Jagga Singh may be reduced to the period already undergone as he has suffered custody for a period more than one year. Another submission made by counsel is that Kuldeep Singh appellant was a government employee and due to his conviction for the offence, he has lost his service and hence sufficiently punished.
Mr. G.S.Sidhu, Advocate, would submit that he does not assail the judgment of the learned trial Court that the complainant sustained injuries in the occurrence at the behest of the convicts. However, he has made two fold submissions to assail the findings that the accused were members of an unlawful assembly and caused injuries to the complainant in furtherance of common object of that assembly. Another submission made by counsel is that keeping in view the evidence adduced by the prosecution, Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -6- offence under Section 307 IPC is not proved against the accused and the accused, at best, can be held liable for their individual acts constituting offence under Sections 323, 324, 325 and 326 IPC keeping in view the nature of injuries attributed to each one of them. To bring home his contention, it is submitted that as per version of the complainant, Gurdev Singh raised a lalkara to teach him a lesson for opposing his wife in elections. Another accused Kuldeep Singh raised a lalkara to teach him a lesson for appearing as a witness against his brother Surjit Singh. However, they never raised any lalkra or exhorted others to finish the complainant or not allowed to escape. It is further argued that the complainant sustained 20 injuries out of which, the first five injuries are stitched wounds and there is no specific opinion in regard to weapon used for inflicting these injuries. According to counsel, the complainant and the alleged eye witness could not state with precision as to which injury was caused by which assailant. It is further argued that the mere fact that the complainant sustained 20 injuries out of which some were declared to be grievous in nature, is not sufficient to hold that the accused caused injuries to the complainant with an intention or knowledge and under such circumstances that if they by that act cause death, they would be guilty of murder to bring offence within the mischief of Section 307 IPC.
Counsel, in the alternative, made a submission that keeping in view character and antecedents of the appellants and the period of their suffering due to lodging of FIR, the sentence awarded to them may be reduced to the period already undergone.
Counsel for the State has supported the judgment of the trial court with the submission that no fault can be found in the well reasoned Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -7- judgment passed by the Court below correctly appreciating factual and legal angles involved in the case.
Counsel for the complainant would submit that the amount of fine imposed by the learned trial Court is liable to be enhanced for payment of adequate compensation to the injured-victim.
So far as the plea of appellants Kulwant Singh and Darshan Singh that the assailants are responsible for their individual Acts and not constructively liable for the acts of others, it is untenable and merits outright rejection. The accused were charged for offence under Section 148 IPC relating to rioting and armed with deadly weapon. They have also been charged for offence under Section 149 IPC providing for every member of an unlawful assembly to be guilty of offence committed in prosecution of its common object. The unlawful assembly is defined in Section 141 IPC and it is an assembly of five or more persons whose common object is to do or omit to do something which falls in first to fifth clause of Section 141 IPC. Clause third deals with the common object to commit any mischief or criminal trespass or other offence.
Now the question arises whether the appellants along with their co-convicts (since deceased) formed an unlawful assembly to commit an offence. Keeping in view the facts elicited during examination of complainant Sukhbir Singh corroborated by Kulwant Singh PW4, I find it difficult to accept the contention of the appellants that they were not the members of an unlawful assembly or they cannot be held vicariously/constructively liable for the acts of the others. In other words, the plea of the appellants that they can be held responsible only for the acts attributed to them and not of others is not worthy of acceptance keeping in Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -8- view the manner in which the assailants appeared on the scene of crime, opened brutal attack on the complainant and left the place of occurrence presuming him to be dead.
This brings the Court to the second plea raised by the counsel that no offence under Section 307 IPC is proved against the culprits. Before proceeding to examine the facts on record, it is appropriate to extract Section 307 IPC. Section 307 IPC reads as follows:-
"Attempt to murder.-- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life- convicts.
Attempts by life- convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."
The Hon'ble Supreme Court of India in State of Maharashtra vs. Balram Bama Patil and others (1983) 2 Supreme Court Cases 28 has held usefully quoted hereinbelow:-
"To justify a conviction under this Section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some Saini Paramjit Kaur 2014.02.26 16:30 cases, be ascertained without any reference at all to actual I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -9- wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
In Ratan Singh vs. State of Madhya Pradesh and another (2009) 12 Supreme Court Cases 585 the Hon'ble Supreme Court of India held in para 16 to the following effect:-
"Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury."
Now the question is whether the appellants attacked the complainant with an intention to kill or knowledge that death will be caused. To answer this issue, a brief reference to the injuries sustained by Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -10- the victim in view of his medico legal examination is relevant. Dr. Joginder Singh examined the complainant on 29.9.1997 and proved medico legal report Ex. PA. As per medico legal report of Sukhbir Singh, the following injuries were found on his person:-
1. There was stitched wound of size 8 cm in length on forehead obliquely placed across the forehead. X-ray was advised.
2. A stitched wound of size 6 cm in length on left parietal bone area just lateral to mid-line. X-ray was advised.
3. A stitched wound of size 4 cm in length situated on left parietal bone area 2 cm lateral to injury No. 2. X-ray was advised.
4. A stitched wound size 4. 5 cm in length situated on right parietal bone area just lateral to mid line. X-ray was advised.
5. A stitched wound size 10 cm in length over sole of right foot 'C' shape around the metatarso phalangeal area of big toe. X-ray was advised.
6. An incised wound of size 5 cm x .5 cm x bone deep situated on left fronto parietal area of scalp 5 cm lateral to mid line. Clotted blood was present and on cleaning the wound fresh bleeding started. X-ray was advised.
7. An incised wound size 2 cm x .5 cm x muscle deep on right side of lower jaw starting from midline. Clotted blood was present. X-ray was advised.
Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -11-
8. An incised wound of size 3 cm x .5 cm x muscle deep on palmar aspect of left thumb over distal phalanx. X-ray was advised.
9. An incised wound of size 3.5 cm x 1 cm x bone deep over proximal phalanx of left index finger over palmar aspect. X-ray was advised.
10.U-shape incised wound of size 3 cm x 1 cm over middle phalanx of left middle finger. X-ray was advised.
11.An incised wound size 2 cm x .5 cm 'C' shape on left wrist on medial side on ventral aspect. X-ray was advised.
12.A reddish contusion size 2 cm x 1 cm over dorsal aspect of left wrist on lateral aspect with diffused tender swelling. X-ray was advised.
13.An incised wound of size 5.5. cm x 1 cm x muscle deep over right knee anteriorily in lower part over patellar tendon transversely placed. Tendon was cut and swelling over the knee was present. Clotted blood was present. X-ray was advised.
14.Reddish contusion of size 3 cm x 2cm over left knee anteriorily placed with diffused swelling over knee. X-
ray was advised.
15.An incised wound size 5.5. cm x 1.5 cm x muscle deep over dorsal aspect of right hand obliquely placed on medial side. X-ray was advised. Fresh bleedings was present on opening the dressing.
Saini Paramjit Kaur2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -12-
16.An incised wound of size 15 cm x 3.5 cm on right palm starting from inter digital space of little and ring finger accoress and upper part of palm extending upto inter digital space of thumb and index finger extends upto dorsal surface underlying muscles tendons vessels were cut. Middle, index and ring fingers were hanging with tag of skin and extensor tendons on dorsal side. Profused bleeding was present on opening of wound. X- ray was advised.
17.A superficial clean incised wound of size 20 cm x .2 cm present on the right side back of chest obliquely placed. X-ray was advised.
18.A superficial clean incised wound present on left side back of chest and abdomen obliquely placed. X-ray was advised.
19.An abraision of size 9 cm x 1 cm over left thigh middle part on lateral side.
20.A reddish contusion size 3 cm x 1.5 cm over right thigh on lateral side lower part."
Dr. S.L.Aggarwal radiologically examined the complainant and found fractures of left Patella, left radius lower end, styloid process right ulna, second and third metacarpal bone of right hand, middle phalynx of right little finger and proximal phalynx of right great toe and proved his report Ex. PH in this regard. Dr. Joginder Singh gave his opinion Ex. PD/1 that all the injuries collectively could lead to death of the patient if proper treatment had not been given in time. He declared injuries No. 5, 12, 14 and Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -13- 16 to be grievous in nature vide opinion Ex. PE/1. He further gave his opinion Ex. PF/1 that the injuries found on the person of Sukhbir Singh injured were possible with gandasa and sword shown to him. As per his statement, the injured was admitted in the hospital at 12.25 p.m. on 29.9.1997 and he was referred on the same day to CMC Ludhiana by Dr. Jagdish Chaudhary at 9.15 p.m. During his cross examination, the witness reiterated that all the injuries were collectively dangerous to life.
A perusal of situs of the injuries sustained by the victim would reveal that the first four injuries, all stitched wounds, are on the forehead or parietal area of the victim, injury No. 6, an incised wound of 5 cm x .5 cm x bone deep is on left fronto parietal area of scalp and injury No. 7 an incised wound 2 cm x .5 cm x muscle deep is on right side of lower jaw. The number and nature of injuries sustained by the victim and part of the body afflicted is an evidence of intention of the assailants. Keeping in view the above, I do not find any reason to subscribe to the contention of counsel for the appellants that offence under Section 307 IPC is not made out against the accused.
Sukhbir Singh complainant gave a vivid narration of the occurrence, attributed specific role to each of the assailants and deposed to the following effect:-
"Thereafter all the accused gave blows to me one after the other and were saying that I should not be spared and should be killed. The accused left the place of occurrence taking me to be dead."
Keeping in view the statement of the complainant and the medical evidence on record, I do not find any merit in the contentions of Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -14- appellants Kulwant Singh and Darshan Singh that the prosecution has failed to prove offence under Section 307 IPC or their conviction for the said offence is liable to be set aside.
Now coming to the sentence awarded by the learned trial Court, all the convicts have been awarded rigorous imprisonment for a period of 10 years each for commission of offence under Section 307 IPC.
Counsel for the complainant is fair enough to concede that the matter has been settled by way of compromise between Kuldeep Singh son of Jagga Singh and the complainant and the complainant has filed his affidavit in regard thereto. Keeping in view the fact that a compromise has been effected between Kuldeep Singh and the complainant coupled with the fact that the occurrence took place in September, 1997 and a period of over 16 years has elapsed since then, the sentence awarded to Kuldeep Singh son of Jagga Singh for offence punishable under Section 307 IPC is reduced to rigorous imprisonment for a period of three years.
With regard to sentence awarded to Kulwant Singh and Darshan Singh, there is nothing on record to suggest that they are previous convicts and have committed any other offence whatsoever. They have undergone trauma of criminal proceedings for the past over 16 years. They have also suffered actual custody and undergone a part of the sentence. The complainant has entered into a compromise with one of the appellants. Keeping in view totality of the facts and circumstances, the sentence awarded to Kulwant Singh and Darshan Singh for offence under Section 307 IPC is reduced to rigorous imprisonment for a period of five years. Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh Crl.Appeal No. S- 929-SB of 2003 -15-
For the foregoing reasons, the appeals are dismissed except modification insentence for offence punishable under Section 307 IPC in the aforesaid terms.
The appellants, if on bail, be taken in custody to serve the remaining sentence.
( Rekha Mittal ) Judge 13.2.2014 Paramjit Saini Paramjit Kaur 2014.02.26 16:30 I attest to the accuracy and integrity of this document Chandigarh