Punjab-Haryana High Court
Basant Kumar And Others vs State Of Haryana on 26 April, 2010
Author: T.P.S.Mann
Bench: T.P.S.Mann
Crl.Appeal No. 639-SB of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Appeal No. 639-SB of 1998
Date of Decision: 26.04.2010.
Basant Kumar and others
----- Appellants.
`
VERSUS
State of Haryana .
---Respondent.
CORAM : HON'BLE Mr. JUSTICE T.P.S.MANN.
Present:- Mr. Tapan Kumar Yadav, Advocate,
for the appellants
Ms. Hem Lata Balhara, Assistant
Advocate General, Haryana.
Mr. Ramesh Hooda, Advocate, for
the complainant.
T.P.S.MANN J. (ORAL)
Alongwith the present appeal, the Court intends to dispose of Criminal Appeal No. 17-SB of 1999 titled "State of Haryana Vs. Basant Kumar and others"
and Criminal Revision No. 1118 of 1998, titled "Dharambir and another Vs. State of Haryana and others" as all of them have arisen out of one and the same judgment of conviction and sentence passed by Crl.Appeal No. 639-SB of 1998 2 Additional Sessions Judge, Sonepat, on 27th/29th July, 1998.
Facts giving rise to the present case are that on 26.10.1994, at 5.30 P.M., Dharambir son of Shri Inder Mani, made a statement before the police in which he stated that he was an agriculturist by profession. His elder brother Sukhbir used to work at a petrol pump at Gohana. On 26.10.1994, at about 8.00 A.M., when the complainant and his brother Sukhbir were passing through the street adjoining their house, Basant Kumar son of Balbir, resident of the village came there. On seeing him, Sukhbir told him not to spread rumours about others. However, Basant Kumar insisted in doing so. When Sukhbir told that it was not the right thing, Basant Kumar felt enraged and stated that he would teach him a lesson. Saying this, Basant Kumar ran towards his house and after some time returned with his licensed gun. He was accompanied by his brother Krishan Kumar, who was carrying a sword and his father Balbir armed with a Jaili. On reaching there, Balbir raised a lalkara to teach a lesson to both of them for initiating an altercation. Upon this, Basant Kumar fired two shots from his gun which hit complainant Dharambir above his right knee. Krishan Kumar gave Crl.Appeal No. 639-SB of 1998 3 an injury with the sword on the left arm of Dharambir, as a result of which, he fell down. Basant Kumar fired a third shot which hit on front of the right calf of Sukhbir. Krishan Kumar gave an other injury with the sword on the left arm of Sukhbir, whereas Balbir wielded the Jaili in giving an injury on the waist of Sukhbir. When an alarm was raised, Ram Chander son of Deep Chand and a number of other villagers came attracted to the spot. According to the complainant, the attack was opened by the three accused with an intent to murder him and his brother. Both the injured were removed to Community Health Centre (CHC), Gohana from where they were referred to Medical College & Hospital, Rohtak.
On receipt of ruqa from CHC, Gohana, Head Constable Baljit Singh, first went there and on being informed that the injured had been referred to Medical College & Hospital, Rohtak, he went there and recorded statement of injured Dharambir, after obtaining opinion from the doctor about his fitness to make statement, on the basis of which, First Information Report No. 329 dated 26.10.1994, was registered at Police Station Gohana at 7.30 P.M., for the offences punishable under Sections 307, 324, 323 read with Section 34 of the Indian Crl.Appeal No. 639-SB of 1998 4 Penal Code and under Section 27 of the Arms Act.
Injured Sukhbir and Dharambir were medico legally examined by Dr. Kishan Lal, Medical Officer, CHC, Gohana on 26.10.1994. The following injuries were noticed on the person of Sukhbir:-
1. Multiple lacerated wounds of sizes ¼ cm x ¼ cm present on anterior aspect of right leg.
Clotted blood present on the wound.
2. Abrasion 10 cm x .2 cm in size present on right side of abdomen.
3. An abrasion 4 cm x .2 cm in size present on posterior aspect of left fore-arm
4. An abrasion .5 x .5 cm in size present on left thumb.
5. A reddish contusion 5 cm x 2 cm in size present on left scapular region.
The injuries found on the person of Dharambir are reproduced below:-
1. Multiple punctured wounds of sizes ¼ cm x ¼ cm present on the medial aspect of left thigh in the lower 1/3rd part. Margins were lacerated.
Fresh blood was coming out from the wounds. Blackening was present around the lacerated wound. The injury was subjected to X-ray. Crl.Appeal No. 639-SB of 1998 5
2. An incised wound 4 cm x .5 cm x bone deep was present on the left side of parietal bone. X-ray of the skull was advised.
3. An incised wound 3 cm x .3 cm x muscle deep on the left ear in upper lobe.
It may not be out of place to mention here that accused Balbir and accused Krishan Kumar were also medico-legally examined by Dr. Kishan Lal on 26.10.1994, who found one injury on the person of Balbir, which was a lacerated wound on the right parietal bone. He also found two injuries on the person of Krishan Lal, out of which one was an abrasion on the medial aspect of right hand and the other a red contusion on the right scapular region.
During investigation of the case,the three accused were arrested on 29.10.1994. A double barrel gun was produced Basant Kumar accused, while a Jaili was recovered on the demarcation of Balbir accused, whereas a sword was recovered when Krishan Kumar suffered a disclosure statement and got recovered the said weapon from its place of hiding in a room under the stairs.
After completion of investigation, report under Crl.Appeal No. 639-SB of 1998 6 Section 173 Cr.P.C. was submitted by the police. The case was then committed to the Court of Sessions, where the accused were charged under Section 307 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution had examined Mahinder Singh Bhardwaj, Architect as PW-1, Dr. Kishan Lal as PW2; Dr. V.K.Govila as PW3; Dharambir complainant as PW-4; Sukhbir as PW-5; Head Constable Baljit Singh as PW-6; Sub Inspector Mahabir Singh as PW7; and M.L.Bansal, S.D.J.M, Gohana as PW8.
When examined under Section 313 Cr.P.C., all the accused denied the prosecution allegations and pleaded their innocence. According to them, Sukhbir and Dharambir Pws, while armed with lathies came to the house of Balbir, who was at that time sitting outside his house on a cot. Dharambir inflicted injuries on his head. When Smt. Krishna intervened, she was pulled from her hair and injuries were also inflicted on the person of Krishan Kumar accused. At that point of time, Basant C:\Documents and Settings\Acer\My Documents\Crl.A.No.639-SB of 1998.sxwKumar accused brought his licensed gun from his house and fired a Crl.Appeal No. 639-SB of 1998 7 single sh ot towards the feet of the complainant party in self defence. When called upon to lead evidence, the accused did not opt to do so and closed their case.
The trial Court believed the prosecution version and while convicting the appellants for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code, sentenced them to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- each. In default of payment of fine, they were further ordered to undergo rigorous imprisonment for six months.
I have heard learned counsel for the parties and perused the evidence with their able assistance.
From the statement of Dr. Kishan Lal, who was examined by the prosecution as PW-2, the defence has been able to extract information to the extent that Balbir and Krishan Kumar accused had also suffered injuries on their person in the occurrence in which complainant Dharmbir and his brother Sukhbir had received injuries. Though, in the First Information Report lodged by complainant Dharmbir and also in the statement of Dharambir as PW4, there was no explanation as to causing of the injuries to the two Crl.Appeal No. 639-SB of 1998 8 accused persons, yet on being questioned by the defence, PW5 Sukhbir deposed in his cross-examination that he had hurled three brick-bats on the accused. The nature of the injuries found on the person of the accused are such which could be caused by the brick bats. Under these circumstances, it cannot be said that the prosecution had not explained the injuries on the persons of the accused.
From the evidence, it stands established that on account of Basant Kumar firing from his gun, complainant Dharambir had received multiple pellet injuries on his left thigh in the lower one-third. Similarly, Sukhbir had received multiple pellet injuries on the anterior aspect of his right leg. These injuries were noticed by PW-2 Dr. Kishan Lal while medico legally examining them. According to Dr. Kishan Lal, injury No.1 on the person of Dharmbir as well as injury No.1 on the person of Sukhbir were caused by a fire arm. Similarly, Krishan Kumar accused was attributed a sword injury to each of the two injured, whereas Balbir had caused Jaili blow to Sukhbir. The injuries attributed to Krishan Kumar and Balbir accused were also noticed on the persons of the two injured. Therefore, the medical evidence was in conformity with the ocular Crl.Appeal No. 639-SB of 1998 9 account.
In respect of the ocular account, there are testimonies of PW-4 Dharambir and PW5 Sukhbir. Both of them were cross examined at length by the defence, but no material could be elicited from which it could be said that these two witnesses had not made truthful statements while deposing before the Court.
The occurrence in question had taken place on 26.10.1994 at about 8 A.M. After the occurrence, Dharambir and Sukhbir, the two injured were removed to CHC Gohana, where they were medico legally examined. Both the injured were then referred to Medical College & Hospital, Rohtak, where they were admitted and treated for the injuries, suffered by them. On receipt of ruqa from CHC Gohana, Head Constable Baljit Singh first went to CHC, Gohana and on noticing that the injured already stood referred to Medical College & Hospital, Rohtak, he went there, where after getting opinion from the doctor about the fitness of the injured to make a statement, he recorded statement Ex.PF of Dharambir on the same day i.e. on 26.10.1994, at 5.30 P.M. On the basis of the said statement, formal FIR Ex.PF/2 was registered at Police Station Gohana, on 26.10.1994 at 7.30 P.M. Under these circumstances, it Crl.Appeal No. 639-SB of 1998 10 cannot be said that there was any delay in lodging of the report with the police. Whatever delay occurred had been satisfactorily explained by the prosecution.
In view of the above, the conviction of the appellants for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code is well merited and does not call for any interference.
The appellants have been facing agony of criminal prosecution since October, 1994. As per the custody certificates produced by the State on the last date of hearing, Basant Kumar appellant remained in jail as an undertrial for two months and seven days, whereas Krishan Kumar and Balbir appellants remained in jail as such for 21 days each. Learned counsel for the appellants has informed the Court that Balbir-appellant is presently suffering from paralysis and he is required to be looked after by his family members. It is also stated that though the appellants stand convicted under Section 307 IPC, yet the firing resorted to by Basant Kumar appellant was towards the lower portion of the bodies of the two injured and not on their vital parts. Moreover, the occurrence had taken place in a village street and not in the house of the complainant party. Therefore, the sentences of the Crl.Appeal No. 639-SB of 1998 11 appellants be reduced to that already undergone by them.
Learned State counsel while being assisted by learned counsel for the complainant has vehemently opposed the request made on behalf of the appellants by stating that at the time of occurrence, Basant Kumar was armed with a double barrel gun which he fired thrice to inflict injuries to two persons. Besides, the other appellants had also caused injuries to the two injured. Mere fact that the appellants have been facing the agony of criminal prosecution since long is no ground to deal with them leniently in the matter of their sentences of imprisonment.
All the appellants were arrested on 29.10.1994 during investigation of the case. While Krishan Kumar and Balbir appellants were released on bail on 17.11.1994, Basant Kumar was granted the similar concession on 3.1.1995. All of them were again taken into custody on 27.7.1998, when they were convicted by the trial Court. On 29.7.1998, when they were sentenced to undergo imprisonment for three years only, they were granted interim bail so as to enable them to file the present appeal and seek orders regarding bail from this Court. The appellants continue to remain on bail since Crl.Appeal No. 639-SB of 1998 12 29.7.1998. A period of about tweleve years has elapsed since then. The trial of the case itself took about four years for its completion. When the appellants were heard on the quantum of sentence by the trial Court, the age of Balbir was noticed as 59/60 years, of Krishan Kumar as 23 years and of Basant Kumar as 25 years. All of them had stated that they were first offenders and only male members of their respective families. The fire arm injuries on the persons of Dharambir and Sukhbir PWs were on their lower limbs only and not on their vital parts. According to the prosecution, there was no serious enmity between the parties. The occurrence ensued after Sukbir PW5 asked Basant Kumar accused to desist from spreading rumours in the village.
Taking into consideration the totality of the circumstances, the court is of the view that no useful purpose would be served by sending the appellants behind the bar once again so as to serve their remaining sentence of imprisonment. Ends of justice can be best met if their substantive sentence of imprisonment is reduced to that already undergone by them and at the same time, the fine imposed on each of them enhanced from Rs.1,000/- to Rs.15,000/-.
Resultantly, the conviction of the appellants Crl.Appeal No. 639-SB of 1998 13 for the offence punishable under Section 307 read with Section 34 is maintained. However, their substantive sentence of imprisonment is reduced to the one already undergone by them. The fine of Rs.1000/-imposed by the trial Court is enhanced to Rs.15,000/- in the case of each of the appellants, which be deposited within three months from today, failing which the defaulter shall undergo rigorous imprisonment for one year. The enhanced amount of fine, if deposited by the appellants, shall be disbursed to the two injured persons, namely, Dharambir and Sukhbir in equal proportions.
The appeal filed by the appellants, the appeal filed by the State of Haryana, as well as revision filed by the complainant are, accordingly, disposed of.
April 26, 2010 (T.P.S. MANN ) Anoop JUDGE