Punjab-Haryana High Court
Vinod Kumar Son Of Bakshish Ram, Pardip ... vs State Of Punjab on 29 January, 2003
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta
JUDGMENT Ashutosh Mohunta, J.
1. This is a revision petition against the judgment dated July 25, 1992 passed by the Additional Sessions Judge, Gurdaspur. Vide which the appeal filed by Vinod Kumar, Pradip Kumar and Kaka petitioners was dismissed, with the only modification that the conviction imposed on Pradip Kumar under Section 326. Indian Penal Code, was converted to the one under Section 326 read with Section 34, Indian penal Code.
2. The facts of the prosecution case are that on November 1, 1986, Darshan Kumar injured, husband of Sham Piari complainant was returning to his house after parking truck in school premises of his village. When he was at a short distance from his house, Sham Piari complainant heard raule being raised by her husband, whereupon she along with Parshotam Lal P.W. rushed to the spot. At that time accused Vinod Kumar was armed with Kirpan. Pradip Kumar was armed with Kirpan and Kaka accused was armed with a Dang. Viney Kumar accused was armed with a Datar. Accused Pradip Kumar gave a Kirpan blow. which hit the left side of the head of Darshan Kumar. Viney Kumar accused gave a datar blow. which hit the injured on the left side of his head. Vinod Kumar accused gave a Kirpan blow. which hit the right side of the head of Darshan Kumar. Darshan Kumar then fell down on the ground. Sham Piari and Parshotam Lal PWs. raised alarm. Kaka accused also gave a dang blow which hit the toes of the feet of Darshan Kumar. Thereafter the accused left the spot with their respective weapons. The injured was removed to the hospital, where he was medically examined. On the basis of the statement made by Sham Piari PW. the F.I.R. was registered against the accused.
3. The motive behind the occurrence is stated by the complainant that sometime prior to the present occurrence, some quarrel had taken place between Darshan Kumar injured and the petitioners which was amicably settled. However, the accused nursed grudge and therefore, they caused injuries to Darshan Kumar.
4. After completion of the investigation, the accused were challenged. They were charged for the offence under Sections 326, 324, 323 read with Section 34. Indian Penal Code, to which they pleaded not guilty.
5. When examined under Section 313, Code of Criminal Procedure, the accused denied the prosecution allegations and pleaded false implication. In defence the accused examined R.N. Aziza D.W.1, and Manohar Lal D.W.2.
6. Believing the prosecution case to be true, the learned Judicial Magistrate Ist Class, Gurdaspur, vide judgment dated May 10, 1990, convicted Vinod Kumar, Pardip Kumar and Kaka accused for the offence punishable under Sections 326, 324, 323 read with Section 34. Indian Penal Code. However, Vinod Kumar accused was given the benefit of doubt and was acquitted of the charge framed against him. Under Section 326. Indian Penal Code, accused Pardip Kumar was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/-. The rest of the two accused were also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/-, each under Section 326 read with Section 34. Indian Penal Code. All the three accused were sentenced for lesser periods under Sections 324 and 323, Indian Penal Code. On appeal, the conviction and sentence imposed upon the accused were maintained with the modification that the conviction of Pardip Kumar accused would be under Section 326 read with Section 34, Indian Penal Code, and not under Section 326, Indian Penal Code. Against their conviction and sentence, they have filed the present revision petition.
7. Mr. T.P.S. Mann, learned counsel for the petitioners has contended that injury No. 1 is alleged to have been given by Viney Kumar. the said Viney Kumar was able to prove his alibi before the trial Court and hence was acquitted. It is contended that accused Pardip Kumar was alleged to have given injury No. 2 to injured Darshan Kumar and this injury was found to be simple in nature by the learned lower appellate Court. Hence it is contended that the provisions of Section 326. Indian Penal Code, are not applicable at all. It has further been contended that the petitioners have been convicted under Section 326 read with Section 34. Indian Penal Code for causing injury No. 1 to Darshan Kumar injured, although Viney Kumar, who is alleged to have caused this injury, has been acquitted. It is contended that once the main accused has been acquitted, then the petitioners who have been convicted with the aid of 34. Indian Penal Code, also deserve acquittal.
8. The contention raised by the learned counsel for the petitioner has been controverted by Ms. Radhika Suri, Assistant Advocate General, Punjab. She has replied upon a decision of Hon'ble the Supreme Court in Brathi alias Sukhdev Singh v. State of Punjab, 1991 S.C.C. (Cri.) 203, wherein it has been held as under:-
"When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate court under Section 386(1)(b) to indirectly or incidentally find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not to reverse the order of acquittal into one of the conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. Where the evidence examined by the appellate court unmistakably proves that the appellant was guilty under Section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding. The English rule of repugnancy on the face of record for annulling the conviction of co-conspirator on the other conspirator being acquitted is not applicable in this country, since such cases are governed by statutory law which does not recognise any such rule."
9. Mr. T.P.S. Mann further contended that both the Courts below have held that there was no worthwhile motive for causing injuries on the person of Darshan Kumar injured. Both the Courts have held that although the motive does not seem to have been proved to cause injuries to Darshan Kumar, but mere absence of motive does not render the case unproved. It is, thus, contended by Mr. Mann that as the prosecution has not been able to prove the motive against the accused, therefore, the accused should be dealt with leniently while imposing sentence upon them.
10. After hearing Mr. Mann, I am of the view that the accused have suffered the agony of long and protracted trial for the last 16 years. Moreover, motive has not been proved by the prosecution. Thus, the present case calls for a lenient view as regards the sentence imposed upon the petitioners is concerned.
11. In this view of the matter, while maintaining the conviction of the petitioners for the offences under Sections 326, 324 and 323, read with Section 34, Indian Penal Code, the sentence of all the accused is reduced to the one already undergone by them. They shall, however, pay a fine of Rs. 10,000/- each to Darshan Kumar injured. The fine shall be paid within a period of six months form today failing which the petitioners shall undergo rigorous imprisonment for six months each.
12. Except for the modification in the quantum of sentence, the petition fails and is dismissed.