Punjab-Haryana High Court
Criminal Appeal No.97-Sb Of 2 vs State Of Punjab on 18 May, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. Criminal Appeal No.97-SB of 2000
Joginder Singh
... Appellant
Versus
State of Punjab
... Respondent
2. Criminal Appeal No.1173-SB of 2000
Ram Singh
... Petitioner
Versus
State of Punjab
... Respondent
Date of decision: 18th May, 2011
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Ms. G.K. Mann, Advocate for the appellant
in CRA No.97-SB of 2000.
Mr. H.S. Tuli, Advocate for the appellant
in CRA No.1173-SB of 2000.
Mr. J.S. Bhullar, Assistant Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
By this common order, Criminal Appeal No.97-SB of 2000 preferred by Joginder Singh and Criminal Appeal No.1173-SB of 2000 instituted by Ram Singh shall be decided together.
Both the above said appellants along with one Ajaib Singh and Mohd. Iqbal were nominated as accused in a case FIR No.271 dated 27.08.1992 registered at Police Station Sadar Ludhiana under Sections 452, 307, 304, 323, 336, 506 read with Section 34 IPC and Section 27 of the Arms Act, 1959.
Before presentation of the challan (report under Section 173 Cr.P.C.) Ajaib Singh died. Ram Singh appellant, when the case was fixed for defence evidence, jumped bail and was declared as a proclaimed Criminal Appeal No.97-SB of 2000 and 2 Criminal Appeal No.1173-SB of 2000 offender. Vide impugned judgment dated 27th January, 2000 Mohd. Iqbal was acquitted by the Court of Additional Sessions Judge, Ludhiana; whereas appellant Joginder Singh was convicted for offences punishable under Sections 452, 307/34, 324/34, 323, 324/34 and 323 IPC. Vide a separate order of even date, he was sentenced as under:
"1. U/s 452 IPC R.I. for three years. Fine Rs.500. In default of payment of fine further R.I. for six months.
2. U/s 307/34 IPC R.I. for seven years. Fine Rs.1000/-. In default of payment of fine, further R.I. for one year.
3. U/s 324/34 IPC R.I. for one year. Fine Rs.200/-.
In default of payment of fine further R.I. for three months.
4. U/s 323 IPC R.I. for six months.
5. U/s 324/34 IPC R.I. for one year. Fine Rs.200/-.
In default of payment of fine further R.I. for three months.
6. U/s 323 IPC R.I. for six months."
Appellant-Ram Singh was apprehended later-on. The prosecution evidence, which was led against Joginder Singh and the acquitted accused Mohd. Iqbal, was considered by the trial Court against appellant-Ram Singh also, as he had jumped bail when the case was fixed for defence evidence. However, a separate judgment was recorded and pronounced by the Court of Additional Sessions Judge, Ludhiana on 14th November, 2000 and appellant-Ram Singh was convicted for offences punishable under Sections 452, 307/34, 324, 323/34, 324 and 323/34 IPC. Vide a separate order of even date appellant-Ram Singh was sentenced as under:
Criminal Appeal No.97-SB of 2000 and 3
Criminal Appeal No.1173-SB of 2000 "1. U/s 452 of the IPC R.I. for three years. Fine Rs.500/-. In default of payment of fine further R.I. for six months.
2. U/s 307/34 of the R.I. for seven years. Fine IPC Rs.1000/-. In default of payment of fine further R.I. for one year.
3. U/s 324 of the IPC R.I. for one year. Fine Rs.200/-.
In default of payment of fine further R.I. for three months.
4. U/s 323/34 of the R.I. for six months.
IPC
5. U/s 324 of the IPC R.I. for one year. Fine Rs.200/-.
In default of payment of fine further R.I. for three months.
6. U/s 323/34 of the R.I. for six months.
IPC Since the prosecution evidence and the solitary defence witness Ram Lubhaya DW-1 are common in both the cases, these two appeals are decided by a common judgment.
FIR Ex.PF/2 in the present case was registered on the basis of a statement Ex.PF made by Sher Singh PW-2 to ASI Harbans Lal, In- charge Police Post Jodhewal on 27th August, 1992 at about 2.45 p.m. at Civil Hospital, Ludhiana. Complainant Sher Singh stated that he was working as a Fitter. On 26th August, 1992 he returned from Delhi and his wife Bimla told him that Joginder Singh resident of Shera Colony had come and enquired about the complainant. Sher Singh went to the house of Joginder Singh and asked his wife as to why her husband was enquiring about him. The complainant returned to his house. At about 12.30 noon Ajaib Singh armed with a Kirpan (sword), Ram Singh also armed with a Kirpan, Iqbal Mian armed with a .12 bore gun and Joginder Singh armed with a Dang (stick) came to the house of complainant. Ajaib Criminal Appeal No.97-SB of 2000 and 4 Criminal Appeal No.1173-SB of 2000 Singh gave a Kirpan blow on the head of complainant and Ram Singh gave a Kirpan blow which hit the complainant on his left knee. Iqbal Mian fired two shots in the air with his licensed .12 bore gun and raised a Lalkara that the complainant Sher Singh should be murdered. They caused further injuries to the complainant, due to which he fell down on the ground. His wife Bimla also fell down upon him. At that moment, accused Ram Singh gave a Kirpan blow on the head of Bimla and Joginder Singh gave a Dang blow on her right shoulder. The complainant raised a noise of 'Mar Dita Mar Dita', which attracted neighbours Sukhwinder Kaur and Sunita Devi at the spot. The cause of grudge stated was that the complainant was a member of Mandir Committee and was demanding account from the accused regarding funds of the Committee. It is stated that due to the fight Ajaib Singh and Ram Singh were also caused injuries by the complainant party in self-defence.
The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. The case was committed to the Court of Additional Sessions Judge, Ludhiana, which on 6th May, 1994 charged the appellants for various offences. However, it will be pertinent to mention here that the substantive charge falling under Section 307 IPC was framed against Ajaib Singh deceased and the appellants were charged under Section 307 with the aid of Section 34 IPC. The accused-appellants pleaded not guilty and claimed trial.
Prosecution commenced its evidence.
Dr.U.S. Sooch PW-1 on 26th August, 1992 at about 4.40 p.m. had medico legally examined complainant Sher Singh. He found following injuries on the person of complainant:
"1. Incised wound 7" x ½" x bone deep on the top vertex, starting from the right frontal region. 1 ½"
lateral to the mid line going across the mid line Criminal Appeal No.97-SB of 2000 and 5 Criminal Appeal No.1173-SB of 2000 to the left parietal region with profuse bleeding and underneath bones were cut. There was paralysis of the right lower limb and paresis of the right upper limb. Injury was referred to the Surgical Specialist for expert opinion.
2. Lacerated wound 1" x ¼" x scalp deep and ½"
left to the posterior end of the injury No.1.
3. Lacerated wound 1 ½" x ¼" x scalp deep and 1½" right to the posterior end of the injury No.1 with fresh bleeding.
4. Incised wound 2" x ¼" x skin deep placed horizontal on the front of the left knee with fresh bleeding and corresponding cut in the worn pant."
Injury No.1 on the person of complainant Sher Singh was declared as grievous in nature.
On the same day at about 5.20 p.m. Bimla Devi, wife of the complainant, was also medico legally examined by this witness. Following injuries were found on her person:
"1. Abraded swelling 2" x 1 ½" of the middle of right forehead with ooz.
2. Incised wound ½" x 1/8" x skin deep horizontal on the middle of the left forehead with fresh bleeding.
3. Red contusion 6" x 1" horizontal on the left scapular region.
4. Red contusion 3 ½" x 1" horizontal on the left scapular region.
5. Red contusion 4" x 1 ½" vertical on the medial border of right scapula.
6. Red contusion 3" x 1" on the right infra scapular region.
7. Red contusion 14" x 1" vertical on the left infra scapular and left renal region.Criminal Appeal No.97-SB of 2000 and 6
Criminal Appeal No.1173-SB of 2000
8. Red contusion 6" x 1" placed horizontally just below the right buttock.
9. Red contusion 2" x 1" just above the lateral end of right clavicle.
10. Red contusion 2" x 1" just above the lateral end of left clavicle.
11. Red contusion 3" x 2" with diffuse swelling on the left side and upper part of right forearm.
12. Two abrasions ¼" x ¼" on the back of right hand."
All the injuries on her person were declared as simple in nature.
This witness further stated that on the next day i.e. 27th August, 1992 on an application Ex.PD the complainant was declared fit to make statement.
On 26th August, 1992 at about 3.45 p.m. Dr.U.S. Sooch PW-1 had also medico legally examined appellant Ram Singh. Following injuries were found on his person:
"1. Incised wound 2 ½" x ½" x bone deep placed horizontally on the back of right hand just above MP joints of the right little and ring fingers. The underneath tendon of right ring finger were cut and the metacarpal bone of ring finger was fractured. The perfuse bleeding was present.
2. Incised wound 1" x ¼". There was skin deep placed horizontally on the middle of postero medial aspect of right forearm with fresh bleeding.
3. Linear abrasion 3" horizontal on the right scapular region."
Injury No.1 on the person of accused Ram Singh was declared as grievous.
Criminal Appeal No.97-SB of 2000 and 7Criminal Appeal No.1173-SB of 2000 Deceased Ajaib Singh was also examined by this witness at about 4.10 p.m. and following injuries were found on his person:
"1. Incised wound 1" x ¼" x muscle deep, Vertical on the left temporal region with fresh bleeding.
2. Abrasion 2 ½" x 1/6" horizontal on the mid front of the left forearm with oozing.
3. Two abrasions ½" x ½" on the dorsum of right hand and right index finger.
4. Swelling 2" x 2" above and medial side of the right knee.
5. Alleged history of blows of the chest and complained of pain in chest. X-ray was advised."
Complainant Sher Singh appeared as PW-2 and stated in the Court that all accused were known to him. On 26th August, 1992, when he returned from Delhi his wife Bimla informed that accused Joginder Singh had come to his house and had enquired about him. Sher Singh along with his wife went to the house of Joginder Singh, where he was not present but his wife was there. Complainant made an enquiry as to why her husband had come to his house. Then he along with his wife returned to his house. At about 12.30 noon Ajaib Singh and Ram Singh each armed with a Kirpan, Iqbal Mian armed with a .12 bore gun and Joginder Singh armed with a Dang entered into the house of complainant. Ajaib Singh had given a Kirpan blow which hit on the head of complainant and Ram Singh had given a Kirpan blow on his left knee. Iqbal Mian fired two shots in the air with his gun and raised a Lalkara. Joginder Singh had given a Dang blow on the head of complainant and he fell down on the ground. His wife Bimla also fell down upon him to rescue him. At that moment, accused Ram Singh gave a Kirpan blow on the head of Bimla and Joginder Singh gave a Dang blow on her right shoulder. The complainant further stated that he was a Cashier of the Mandir Committee Criminal Appeal No.97-SB of 2000 and 8 Criminal Appeal No.1173-SB of 2000 of Shera Colony. Two receipt books were given to accused Ram Singh and one was given to accused Iqbal Mian for collection of funds. Each receipt book contained 100 leaves. This witness further stated that he had not caused any injury to any of the accused. In cross-examination, he stated that he was a member of the Mandir Committee but was not a Cashier of the Committee. He also denied to have ever given any receipt books to Ram Singh or Iqbal Mian.
Bimla Devi, wife of the complainant, appeared as PW-4 and corroborated the version given by her husband. In cross-examination, she stated as under:
"We did not give any injuries to the assailants and we were empty handed. I did not see any injuries on the person of Ram Singh and Ajaib Singh."
Sukhwinder Kaur, another eye witness, appeared as PW-5. She also corroborated the version given by the complainant. In cross- examination, she stated as under:
"I did not see any injury on the person of the accused. I did not talk to anybody about the occurrence before recording my statement to the police."
Prosecution also examined Harmander Singh Draftsman as PW-3, who proved the scaled site plan Ex.PG of the spot. ASI Harbans Lal appeared as PW-6. He proved various facets of the investigation including the opinion sought from the doctor regarding fitness of the complainant Sher Singh and recording of his statement, on the basis of which formal FIR was registered. SI Mohinder Singh PW-7 stated that he had partly investigated the case.
Criminal Appeal No.97-SB of 2000 and 9Criminal Appeal No.1173-SB of 2000 Dr.Manoj Sobti PW-8 stated that he had operated upon complainant Sher Singh and had declared the injury on his head as dangerous to life.
Thereafter, prosecution closed its evidence and statements of the accused appellants were recorded under Section 313 Cr.P.C. All incriminating circumstances were put to them but they denied the same. Appellant Ram Singh gave the following version:
"I was office bearer of the Mohalla Committee. On the application of one Renu Bansal I took action against Sher Singh and Satnam Singh and Vijay Kumar. No injury was given by me or other co-accused rather the complainant were beaten by the Mohalledars."
In defence, Ram Lubhaya was examined as DW-1. He stated that he was running a grocery shop. 3-4 days prior to the occurrence, complainant Sher Singh along with 2-3 other persons had teased Renu Bala. The matter was reported to accused Ajaib Singh, who along with Renu Bala appeared before the S.P. On the day of occurrence, i.e. 26th August, 1992 at about 12.30 p.m. this witness saw the complainant Sher Singh and other persons beating accused Ram Singh. At that time, Joginder Singh and Mohd. Iqbal were not present there. Thereafter, people of the Mohalla had beaten the complainant Sher Singh and other PWs including the wife of complainant. In cross-examination, this witness admitted that Renu Bala was alive.
From the prosecution evidence, following facts emerge for consideration of this Court:
1. In the FIR, complainant Sher Singh PW-2 had specifically stated that in the right of self defence they had caused injuries to Ajaib Singh and Ram Singh.Criminal Appeal No.97-SB of 2000 and 10
Criminal Appeal No.1173-SB of 2000
2. In the Court, complainant Sher Singh PW-2 stated that he became paralyzed and had not caused any injury to any of the accused. He further stated that in his presence no injury was caused to any of the accused and he had also not seen any person causing injuries to Ajaib Singh and Ram Singh.
3. Bimla Devi, injured wife of the complainant, appearing as PW-4 also stated that no injuries were caused to the assailants by them and they were empty handed. A similar stand was taken by Sukhwinder Kaur PW-5.
4. According to the testimony of Dr.U.S.Sooch PW-1, appellant Ram Singh had suffered three injuries. Injury No.1 on the right hand was declared as grievous. Ajaib Singh had suffered five injuries and injury No.1 was on the head.
5. From Accused side, both Ajaib Singh and Ram Singh on same day were medico legally examined, earlier to medical examination of complainant and his wife.
Ms. G.K. Mann, Advocate appearing on behalf of appellant Joginder Singh and Mr.H.S. Tuli, Advocate appearing for appellant Ram Singh have submitted that in the present case, prosecution has suppressed the origin and genesis of the occurrence. The witnesses in the Court have not deposed truthfully. Having said in the FIR that injuries were caused in self defence to accused Ram Singh and Ajaib Singh, conveniently in the Court they have falsely stated that no injuries were caused by any of them at the time of occurrence to any of the accused.
Mr. Tuli, appearing on behalf of appellant Ram Singh, has stated that he has been falsely implicated. He had no motive to participate in the occurrence. It is further contended by Ms. G.K. Mann that Joginder Singh has suffered no injury in the occurrence, therefore, the incident, if Criminal Appeal No.97-SB of 2000 and 11 Criminal Appeal No.1173-SB of 2000 any, had taken place between Ajaib Singh and Ram Singh on one side and the complainant Sher Singh PW-2 and Bimla Devi PW-4 on the other.
On behalf of appellant Joginder Singh, it has also been urged that Joginder Singh had no motive to participate in the occurrence. It is further contended that as per the FIR, appellant Joginder Singh had given an injury on the shoulder of Bimla Devi, but 12 injuries have been found on the person of Bimla Devi. Thus, the witnesses are not truthful. Ms. Mann has further stated that in the Court complainant Sher Singh PW-2 deposed that injury was caused on the right shoulder of his wife, whereas Bimla Devi in her deposition stated that the injury was caused on her left shoulder. According to the counsel, this discrepant account given by the witnesses is fatal to the prosecution.
Mr. J.S. Bhullar, Assistant Advocate General, Punjab has submitted that both complainant Sher Singh PW-2 and his wife Bimla Devi PW-4 had received injuries in the occurrence and being stamped witnesses, the version given by them cannot be doubted and they will be the last persons to allow the real assailants to go scot-free. Counsel for the State has further submitted that in the present case two types of weapons were used as the injured had received incised and lacerated wounds.
I have given my thoughtful consideration to the rival submissions advanced by counsel for the parties. The time of occurrence cannot be doubted. The occurrence had taken place on 26th August, 1992 at about 12.30 p.m. Complainant Sher Singh was medico legally examined on the same day at about 4.40 p.m., whereas his wife Bimla Devi was medico legally examined at about 5.20 p.m. On the very same day, before the arrival of complainant Sher Singh PW-2 and his wife Bimla Devi PW-4, appellant Ram Singh accused was medico legally examined at about 3.45 p.m. and accused Ajaib Singh at about 4.10 p.m. Therefore, Criminal Appeal No.97-SB of 2000 and 12 Criminal Appeal No.1173-SB of 2000 in the same occurrence, Ram Singh and Ajaib Singh had suffered injuries. In the FIR, complainant Sher Singh stated that in the fight they had also caused injuries to the accused in their self defence. In the Court complainant Sher Singh PW-2, his wife Bimla Devi PW-4 and Sukhwinder Kaur PW-5 had stated that no injuries were caused by them to the accused and they have not seen any accused receiving any injury. Accused Ram Singh in his statement recorded under Section 313 Cr.P.C. stated that no injury was given by him or other accused, rather the complainant was beaten by the residents of Mohalla.
From the above, it is apparent that both the prosecution and the defence are not giving a truthful version. How the occurrence ensued, its origin and genesis is being withheld from the Court by the prosecution as well as the defence. According to the prosecution, complainant Sher Singh PW-2 was a Cashier of the Mandir Committee and he had issued certain receipt books to the accused, which they were not accounting for. It has been admitted by this witness in his cross-examination that Ajaib Singh was a President of the Mohalla Sudhar Committee. According to the evidence of defence witness Ram Lubhaya DW-1, Renu Bala a resident of Mohalla was teased, due to which Ajaib Singh had caused annoyance to the complainant Sher Singh.
In normal course, for suppressing the origin and genesis of the occurrence and for not explaining the injuries on the person of accused, this Court ought to have discarded the prosecution version and acquitted the appellants. However, this Court cannot ignore the fact that the accused, who were injured at the spot, have also furnished no explanation as to how the complainant had suffered injuries. In these circumstances, the evidence of Ram Lubhaya DW-1 looks probable and trustworthy to some extent. He was running a grocery shop in the locality. According to him the occurrence took place in front of a karyana shop Criminal Appeal No.97-SB of 2000 and 13 Criminal Appeal No.1173-SB of 2000 known as Kohli Karyana Store. Thus, the occurrence had not taken place inside the house of the accused but in the street.
As per the prosecution version, Joginder Singh a day before had come to the house of complainant Sher Singh and had enquired about him, upon which complainant Sher Singh had gone to the house of Joginder Singh and from his wife had enquired as to why her husband was asking about the complainant. Therefore, a possibility cannot be ruled out that the parties suddenly met in the street and came to blows.
As per the prosecution witnesses, accused Mohd. Iqbal had fired shots in the air. No empty pellets were collected from the spot. Nobody had received the firearm injury. The prosecution version qua Mohd. Iqbal has not been believed. Furthermore, at the time of medico legal examination, the age of Ajaib Singh was noticed as 72 years. Thus, this Court will not lend wholesome credence to the testimony of prosecution witnesses. Therefore, their deposition is to be discounted.
Having held that the prosecution witnesses are not wholly truthful and have not come forward with clean hands as to how the occurrence had ensued, this Court will be hesitant to hold that the accused shared a common intention. The possibility that the parties met in the street and the occurrence ensued on the spur of the moment cannot be ruled out. Therefore, it is a case of individual liability. The injury falling under the ambit of Section 307 IPC has been attributed to Ajaib Singh. Appellants Joginder Singh and Ram Singh have been convicted with the aid of Section 34 IPC. Therefore, having held that Section 34 IPC is not attracted, appellants are acquitted of the offence under Section 307 read with Section 34 IPC. This Court has also held that the occurrence, in the present case, had taken place in the street and not in the house of the complainant. Thus, the offence punishable under Section 452 IPC is also Criminal Appeal No.97-SB of 2000 and 14 Criminal Appeal No.1173-SB of 2000 not attracted and appellants are acquitted of the charges on this count also.
Consequently, conviction of appellant Ram Singh under Section 324 IPC and that of appellant Joginder Singh under Section 323 IPC on both counts is upheld and the respective sentence awarded to them on these counts is maintained.
With the observations made above, the aforesaid two appeals are disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE May 18, 2011 rps