Punjab-Haryana High Court
Kamaljit Singh @ Gabbar Singh And ... vs State Of Punjab on 9 August, 2010
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No. 128-SB of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.128-SB of 2002
Date of decision: 9.8.2010
Kamaljit Singh @ Gabbar Singh and another
... Appellants
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr. G.S.Bhatia, Advocate,
for appellant No.1.
Mr.A.K.Khunger, Advocate,
Amicus Curiae, for appellant No.2.
Mr.Arshvinder Singh, DAG, Punjab.
...
JORA SINGH, J.
Kamaljit Singh @ Gabbar Singh and Inderjit Singh preferred this appeal to impugn the judgment of conviction and order of sentence dated 25.9.2001 rendered by Sessions Judge, Hoshiarpur, arising out of FIR No. 5 dated 9.1.1998 under Sections 364/332/186/353/341/506 IPC, PS Tanda.
By the said judgment, they were convicted under Sections 364/333/332/353/186/34 and sentenced to undergo RI for five years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for two months each under Sections 364/34 IPC, to undergo RI for four years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for two months each under Sections 333/34 IPC, to undergo RI for one year and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for one month each under Sections 332/34 IPC, to undergo RI for one year and to pay a fine of Rs.500/-, in default of Crl.Appeal No. 128-SB of 2002 2 payment of fine, to further undergo RI for one month each under Sections 353/34 IPC and to undergo RI for two months each under Sections 186/34 IPC.
All the substantive sentences were ordered to run concurrently. Co-accused Sukhvinder Singh was declared proclaimed offender.
Prosecution story, in brief, is that Tejinder Singh Virk, complainant, was serving as Excise and taxation Officer-cum-Assistant Director Enforcement, Gurdaspur. On 8.1.1998 at about 3.45 AM, he along with his driver Kehar Singh, Constable Balbir Singh and Constable Sukhchain Singh while present near Khakhan Railway Crossing on G.T. Road was checking the vehicles. In the meantime, Truck No.HR-20-B-3268 driven by Jagtar Singh came. Truck was found loaded with items of general provision and was signalled to stop. After checking, driver of the truck was requested to show papers regarding purchase of goods being carried in the truck. Driver of the truck failed to produce any bill or billity or paper. Then for want of papers, truck was impounded under Section 14(B) of the Punjab General Sales Tax Act, 1948, vide detention order (Ex.PL). Both the Constables were directed to board the truck and take the same with them towards Mukerian, where such impounded trucks were detained. Kehar Singh with official vehicle was sent to Jalandhar because Deputy Director was to attend the meeting. Complainant in his private car No.JK-8-2430 followed the truck. After some time, Maruti Car No.PCV-171 of white colour came from the back side and after overtaking the car of the complainant, had stopped in front of the car of complainant. 5 persons came out of that maruti car including Kamaljit Singh, Manager of Patiala Crl.Appeal No. 128-SB of 2002 3 Transport Company, Jalandhar, who was earlier known to the complainant. Complainant was brought out of the car forcibly. Then occupants of maruti car started beating the complainant. Kamaljit Singh gave rod blow on the head of the complainant, while other accused had caught hold the complainant. Two other accused accompanying Kamaljit Singh had also given rod blows to the complainant and the complainant was made to sit in the maruti car and was being taken towards Jalandhar side. On the way, accused continued to give beating to the complainant. Then he became unconscious and when he regained consciousness, then he found the car parked on bridge. Accused were talking to each other to throw him (Tejinder Singh Virk) down from the bridge to eliminate him. Then all the accused started their car from there and took the complainant towards some deserted place. Complainant was given push from the car. While travelling in the car, accused were saying that they were to murder the complainant, if in future he (complainant) ever checked the vehicles of their company. When the complainant regained consciousness, then he found one cyclist passing from there and on enquiry from the cyclist, he came to know that he was about 3-4 kms from Phagwara. Complainant managed to reach Phagwara and disclosed the incident to the police party present near Naka. After getting first aid at Civil Hospital, Phagwara, complainant had gone to the office of SDM, Dasuya, but he was not available. After that, complainant had gone to Civil Hospital, Tanda, where he was medico legally examined. After intimation sent by Civil Hospital, Tanda, to the concerned police station, police party came to the hospital. Statement of Tejinder Singh Virk was recorded at 6.30 PM on 9.1.1998. After making endorsement, statement was sent to the concerned police station, on the Crl.Appeal No. 128-SB of 2002 4 basis of which, formal FIR was recorded. Accused were arrested. After completion of investigation, challan was presented in the Court against the appellants and one Sukhvinder Singh, who was declared proclaimed offender.
Accused were charged under Sections 186/332/333/353/364/34 IPC, to which they pleaded not guilty and claimed trial.
PW1 Dr. Naranjan Singh stated that on 8.1.1998 at 11.45 AM, he had medico legally examined Tejinder Singh and found the following injuries on his person:-
"1. Lacerated wound 6 cm x 1 cm x bone deep in front of the right half of forehead 5 cm above the right eye brow. On examination red clot was present. It bleeded on examination horizontal in direction. Advised x-ray.
2. Lacerated wound 6 cm x 1.5 cm bone deep in front of the right temporal region of skull 13 cm above the right ear. Blood clot was present. Bleeded on examination oblique in direction. Advised x-ray.
3. Lacerated wound 5 cm x 1.5 cm x bone deep over the occipital region of skull 12 cm away from left ear.
Blood clot was present. Bleeded on examination horizontal in direction. Advised x-ray.
4. Lacerated wound 5 cm x 1.5 cm x bone deep over the posterior aspect of the skull on left side 15 cm distant to the injury No.3. Clotted blood was present. Fresh bleeding on examination. Obliquely in direction. Advised x-ray.Crl.Appeal No. 128-SB of 2002 5
5. Lacerated wound 2 cm x 1.5 cm x 1.5 cm in front of medial side of the palmer aspect of right hand. Blood clot was present. Fresh bleeding on examination. Horizontal. Advised x-ray.
6. Lacerated wound 1.5 cm x 1 cm x bone deep with diffused swelling around the right elbow joint. Blood clot was present. Fresh bleeding on examination. Advised x-ray."
Injury No.6 was declared grievous whereas remaining injuries Nos.1 to 5 were found to be simple in nature.
PW2 Tejinder Singh Virk, complainant, appeared and reiterated the story disclosed to the police.
PW3 Dr. Kewal Singh on 9.1.1998 vide endorsement (Ex.PF/1) opined that Tejinder Singh Virk was fit to make statement.
PW4 Kuldip Kumar had prepared scaled site plan (Ex.PG) of the place of occurrence.
PW5 Constable Dalbir Singh and PW6 Constable Sukhchain Singh stated that they were with the party of complainant and supported his version.
PW7 Constable Pawan Kumar had delivered special report to the Ilaqa Magistrate.
PW8 Atwinder Singh, Clerk, Madopur Sales Tax Barrier, stated that in the year 1998, complainant Tejinder Pal Singh Virk remained posted as Excise and Taxation Officer-cum-Assistant Director Enforcement at Gurdaspur. On 8.1.1998, Truck No.HR-29-B-3268 was challaned by Tejinder Singh Virk. Ex.PL is the copy of challan.
Crl.Appeal No. 128-SB of 2002 6
PW9 ASI Jagdish Rana was the Investigating Officer.
PW10 Harbhajan Singh, Junior Assistant, Office of SDM, Barnala, stated that Maruti Car No.PCB 171 was registered in the name of Jasbir Kaur Kalsi.
After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent.
Defence version of the accused was that complainant was of dubious character. He was in the habit of demanding bribe from the transporters. So many times, he was suspended by the department. Recently, he was suspended by the Chief Minister on the allegation of demanding bribe. On the day of occurrence, truck of their company was coming from Delhi to Jalandhar. Truck was near Jalandhar when complainant stopped their truck and started demanding bribe from driver Sukhvinder Singh. When Sukhvinder Singh refused to give bribe, then complainant started manhandling him. In retaliation, Sukhvinder Singh gave some injuries to the complainant. They are the transporter and to get money from them, a false case was planted in connivance with the police. They were not present at the spot. Area where truck was stopped near Jalandhar was beyond the jurisdiction of the complainant. No occurrence had taken place as alleged by the complainant.
In defence, DW1 Dr. Baldev Raj appeared and stated that on 8.1.1998, first aid was given to the complainant.
DW2 Kashmir Singh stated that he was an employee of Swaran Filling Station, Khajrula, Jalandhar Cantt. Diesel was sold by their filling station vide cash memo (Mark A).
Crl.Appeal No. 128-SB of 2002 7
DW3 Jagtar Singh stated that he was driver of Truck No.HR- 29-B-3268.
After hearing learned Public Prosecutor for the State, learned defence counsel for the accused and from the perusal of evidence on file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and have gone through the evidence on file.
Learned counsel for the appellants argued that there is a delay in lodging the FIR. Occurrence was at about 3.45 AM on 8.1.1998 near Jalandhar Cantt., whereas FIR was got registered on the next day in view of the statement made by the complainant at 6.30 PM. According to the prosecution story, occurrence was near Khakhan Railway Crossing on G.T. Road. Initially, complainant had gone to Civil Hospital, Phagwara, but he was not medico legally examined in Civil Hospital, Phagwara. From Phagwara, complainant had gone to the office of SDM, Dasuya, and then to Civil Hospital, Tanda. No explanation, why the matter was not reported to the police party met to the complainant in the area of Phagwara. In fact, delay was used to concoct the story to show the place of occurrence within the jurisdiction of complainant, posted as ETO-cum-Assistant Director Enforcement at Gurdaspur. Constable Dalbir Singh and Constable Sukhchain Singh claimed to be the eye witnesses being with the complainant but their statements were not recorded immediately after the occurrence. Statements of both the eye witnesses under Section 161 Cr.P.C. were recorded on 22.3.1998. They were on duty with the complainant so they were bound to support the prosecution story. Complainant along with Driver Kehar Singh and two Constables was checking the vehicles while Crl.Appeal No. 128-SB of 2002 8 present near Khakhan Railway Crossing on GT Road. Kehar Singh was sent to Jalandhar because Deputy Director was to attend the meeting, but without any reason, Kehar Singh was not examined. Kehar Singh was to state that complainant along with him and two constables was checking the vehicles near Khakhan Railway Crossing or the occurrence was near Petrol Pump, Jalandhar Cantt. As per prosecution story, five persons had alighted from maruti car but FIR was against three persons. Only Kamaljit Singh was named in the FIR. Inderjit Singh was not named in the FIR. Three persons were challaned but no reason why other two persons were not challaned because five persons after alighting from maruti car had caused injuries to the complainant. According to prosecution story, complainant was thrown out of the car in the area of Phagwara. After that, he had met the police party present at the Naka near Phagwara, but statement of complainant was not recorded. One cyclist had met the complainant and on enquiry, the cyclist told that complainant was at a distance of about 3-4 kms. from Phagwara, but the cyclist was not joined in the investigation of the case. After getting first aid from Civil Hospital, Phagwara, complainant had gone to the office of SDM, Dasuya, but no record as to whether complainant had gone to the office of SDM, Dasuya or not. From Dasuya, complainant had gone to Police Station, Tanda, but again no record of Police Station, Tanda. Complainant got himself medico legally examined from Civil Hospital, Tanda, to show that place of occurrence was within his jurisdiction. In fact, items of daily use were brought from Delhi. Driver of the truck after getting diesel from Petrol Pump, Khajrula, Jalandhar Cantt., was to move towards Jalandhar side. Complainant demanded bribe. Complainant had misbehaved with Sukhvinder Singh, driver of the truck. Crl.Appeal No. 128-SB of 2002 9 Then Sukhvinder Singh had some altercation with the complainant. Injuries to the complainant were caused by Sukhvinder Singh. Injuries were found to be simple in nature. Sukhvinder Singh was declared proclaimed offender. Appellants are the first offenders. Appellant Kamaljit Singh has already undergone nine months and ten days, whereas appellant Inderjit Singh has already undergone ten months and eight days. If the Court is of the opinion that crime was committed by the appellants, then lenient view be taken qua sentence.
Learned State counsel argued that complainant was serving as ETO-cum-Assistant Director Enforcement. He was the member of flying squad and was checking the vehicles while present near Khakhan Railway Crossing, on GT Road. Truck driven by Jagtar Singh came and was signalled to stop. Items of daily use were found loaded in the truck. Driver of the truck failed to produce any billity or receipt to transport said items. Then police officials were directed to board the truck and take away the same towards Mukerian side. Kamaljit Singh was the owner of transport company. He along with Inderjit Singh and three other persons came in a maruti car. After stopping maruti car in front of the car of complainant, they had caused injuries to the complainant. Complainant was brought towards Jalandhar side in their car and was thrown in the area of Phagwara. Firstly, the complainant got medical aid from Civil Hospital, Phagwara. After that, he had gone to Dasuya to the SDM Office, but SDM was not available. Later on, complainant was admitted in Civil Hospital, Tanda, where he was medico legally examined. No doubt, all the injuries, except injury No.6, were found to be simple in nature, but before occurrence, there was no enmity between the parties. According to defence version, occurrence was Crl.Appeal No. 128-SB of 2002 10 near Petrol Pump, Jalandhar Cantt., but no billity or receipt on the file that items found loaded in the truck were purchased from Delhi and were being brought to Jalandhar. When complainant serving as ETO-cum-Assistant Director Enforcement was in the flying squad, then he had the power to check the vehicles. Complainant was forced to sit in the maruti car and was given beatings in the car and was brought towards Jalandhar side. Two Constables were sent with the truck but truck was not taken into custody because complainant was forcibly taken away by the appellants towards Jalandhar side. Injuries on the person of complainant cannot be self suffered or self inflicted, although injuries were found to be simple in nature, except injury No.6. When complainant had no enmity with the appellants, then there was no idea to name the appellants. Evidence on the file shows that complainant was suspended on 2-3 occasions but question is if an employee is suspended then whether owner of transport company has a licence to interfere in the discharge of official duties and cause injuries to that employee. Something could be said if bill or receipt would have been produced on file to show that articles were purchased from Delhi and were to be brought to Jalandhar. In case, truck driven by Jagtar Singh was not taken into custody, then prosecution story is not to be ignored. Constable Dalbir Singh and Constable Sukhchain Singh had gone with truck towards Mukerian side. They had not witnessed the appellants while causing injuries to the complainant. Statements of police officials were recorded on 22.3.1998. If statements of PW5 and PW6 are ignored, even then prosecution story is not to be brushed aside when complainant had no motive to name the appellants by self suffering or self inflicting the injuries on his person.
Crl.Appeal No. 128-SB of 2002 11
Admittedly, complainant was serving as ETO-cum-Assistant Director Enforcement, Gurdaspur, and on the day of occurrence, he was in the flying squad. No suggestion to any witness that complainant being the member of flying squad had no power to check the vehicles near Khakhan Railway Crossing on GT Road or near Petrol Pump, Jalandhar Cantt. Appellants in defence could easily summon the record from the office that complainant while serving as ETO-cum-Assistant Director Enforcement and the member of Flying Squad had no power to check the vehicles near Petrol Pump, Jalandhar Cantt. Evidence on file shows that there was no incident near Petrol Pump, Jalandhar Cantt. In fact, incident was near Khakhan Railway Crossing, GT Road.
On the intervening night of 7/8.1.1998, complainant along with his driver Kehar Singh and Constables Dalbir Singh and Sukhchain Singh while checking the vehicles was present near Khakhan Railway Crossing, GT Road, at about 3.30 AM. In the meantime, truck driven by Jagtar Singh came and was signalled to stop. Jagtar Singh appeared in defence, but failed to produce any receipt or bill to show that he had brought the articles from Delhi. In examination-in-chief, Jagtar Singh stated that he was the driver of truck No.HR-29-B-3268 and at about 3.30-4.00 AM was present near Petrol Pump Khajrula, Jalandhar Cantt. Sukhvinder Singh was the second driver. Items of general provision were loaded in the truck. After getting diesel from the petrol pump when he came out, then complainant directed him to show billity. Papers were shown to the complainant. Complainant was under the influence of liquor. He started demanding illegal gratification. Complainant had some altercation with Sukhvinder Singh. Firstly, complainant had slapped Sukhvinder Singh, then Crl.Appeal No. 128-SB of 2002 12 Sukhvinder Singh in retaliation had given some injuries to him. After that, Sukhvinder Singh ran away from the spot. Complainant chased him in the car. He had brought his truck to the office of transport company, Jalandhar. Incident was brought to the notice of owner of the company, but statement of Jagtar Singh is not correct one because if he had brought items of general provision from Delhi and had shown bill/receipt to the complainant, then while appearing as DW3, he could easily produce the same on record and secondly, if the bill or billity or cash memo was not available with DW3, then record could easily be summoned from Delhi from where items of general provision were purchased. If appellants were not in a position to produce bill or billity or cash memo of the items purchased from Delhi, then Kamaljit Singh being owner of transport company could produce the register that on 8.1.1998, truck No. HR-29-B-3268 loaded with items of general provision came from Delhi. In the present case, transport company was owning number of trucks and when any truck is sent from the premises of the company, then entry is made in the register. When any truck loaded with certain materials comes back to the premises of the company, then again entry is made. Without entry it is very easy to state that items of general provision were brought from Delhi to Jalandhar. Log book is also maintained by the owner of the truck. Log book could easily be produced that at about 3.30-4.00 AM, truck was near Khajrula Petrol Pump, Jalandhar Cantt. From Khajrula Petrol Pump, Jalandhar Cantt., Jagtar Singh got filled diesel in the truck. Mark A is the copy of receipt, but without original, Mark A is not helpful to the appellants to show that diesel was purchased from Khajrula Petrol Pump. First of all, appellants should have produced on record that such and such articles were purchased from Delhi and after Crl.Appeal No. 128-SB of 2002 13 purchase, articles were loaded in truck No. HR-29-B-3268. No record that in the morning of 8.1.1998, truck came to the premises of transport company loaded with the items of general provision. If Sukhvinder Singh had some altercation with the complainant in the morning on 8.1.1998 and this fact was brought to the notice of owner of transport company, then complaints should have been sent to higher authorities that near Petrol Pump, Jalandhar Cantt., complainant was demanding illegal gratification and if no payment, then threatened to impound the truck.
According to defence version and Jagtar Singh, Sukhvinder Singh, second driver, had caused injuries to the complainant when complainant had slapped him. But Sukhvinder Singh was avoiding arrest. He was declared proclaimed offender. If prosecution story was genuine as per Jagtar Singh, then there was no idea to abscond.
DW2 Kashmir Singh stated that vide Mark A, diesel was got filled in truck No. HR-29-B-3268 but in cross-examination admitted that Mark A does not bear the signatures of consumer. He further admitted that he has not brought the original record. So in the absence of original record, it is very easy to forge receipt (Mark A). Suppose receipt is correct one that diesel was got filled in truck No. HR-29-B-3268 by Jagtar Singh, then receipt nowhere shows that truck was at Khajrula Petrol Pump at about 3.00-4.00 AM on 8.1.1998. After getting diesel filled in the truck, truck can be near Khakhan Railway Crossing, GT Road, Pathankot, at about 3.30-4.00 AM, because place of occurrence as per prosecution story was less than 100 kms. from Jalandhar.
After the truck was signalled to stop and driver failed to produce any receipt/bill regarding purchase of articles loaded in the truck, Crl.Appeal No. 128-SB of 2002 14 then Constable Dalbir Singh and Constable Sukhchain Singh were sent with the truck towards Mukerian side to park the same where impounded vehicles were parked. Kehar Singh, driver on the official vehicle, was sent to Jalandhar because Deputy Director was to attend meeting and vehicle was required for that purpose. Kehar Singh was not the eye witness. So, non-appearance of Kehar Singh is not fatal. Constable Dalbir Singh and Constable Sukhchain Singh had gone with truck No. HR-29-B-3268 driven by Jagtar Singh towards Mukerian side. Complainant in his own car was following the truck. Then appellants came in their maruti car and stopped their car in front of the car of complainant. Then appellants had caused injuries to the complainant. Constable Dalbir Singh and Constable Sukhchain Singh had not seen the appellants while causing injuries to the complainant. Statements of Constable Dalbir Singh and Constable Sukhchain Singh were recorded under Section 161 Cr.P.C. on 22.3.1998 and if their statements are ignored, then prosecution story is not to be brushed aside because they were not the eye witnesses. After truck No. HR- 29-B-3268 was sent towards Mukerian side with two Constables then complainant in a private car was brought towards Jalandhar side by the appellants. In the car also, appellants gave injuries to the complainant. Car was stopped near the bridge, then complainant had heard the appellants while saying that complainant be thrown from the bridge. Ultimately, complainant was brought towards Banga side. At about 3-4 kms from Phagwara, complainant was thrown from the car. From a cyclist, complainant came to know about the place where he was thrown. Cyclist was not joined in the investigation of the case because he was not known to the complainant. After knowing the location, complainant had gone to Civil Crl.Appeal No. 128-SB of 2002 15 Hospital, Phagwara. Police party was not in a position to locate cyclist. So, failure to join cyclist is not fatal. From Civil Hospital, Phagwara, complainant after getting first aid, had gone to the office of SDM, Dasuya, but SDM was not available. Later on, complainant was got admitted in Civil Hospital, Tanda, where he was medico legally examined. 6 injuries were noticed on his person, Injury No.6 was found to be grievous in nature, whereas other injuries were found to be simple in nature. Intimation was sent to the concerned police station but on 8.1.1998, complainant was found unfit to make statement. This fact is clear from the statement of Dr. Naranjan Singh. Again on 9.1.1998 in the morning, complainant was found unfit to make statement. At 6.30 PM on 9.1.1998, complainant was found fit to make statement. Then his statement was recorded in Civil Hospital, Tanda. Complainant admitted that in Civil Hospital, Phagwara, or in the office of SDM, Dasuya, he was conscious, but first priority of the complainant was to get medical aid because number of injuries were on his person. Place of occurrence was in the area of Police Station, Tanda. That is why, report was not lodged with Police Station, Dasuya. Complainant was admitted in Civil Hospital, Tanda, on 8.1.1998. On the next day, as per intimation sent by the hospital, statement of complainant was recorded at 6.30 PM. When the complainant was conscious and was in a position to travel from Phagwara to Dasuya and from Dasuya to Tanda, then he could lodge report at Phagwara or Dasuya, but if report is not lodged before getting medical aid, then delay in lodging the FIR is not sufficient for acquittal of the accused. When there is a delay in lodging the FIR, then delay is one of the suspicious circumstances to scrutinise the evidence with great care and caution. In the present case, delay was explained but if we Crl.Appeal No. 128-SB of 2002 16 presume that there was a delay in lodging the FIR, then on this short ground, prosecution story is not to be ignored. As per defence version, complainant was given injuries but by Sukhvinder Singh and not by the appellants. If Sukhvinder Singh had given injuries to the complainant, then complainant could easily name Sukhvinder Singh or Jagtar Singh. There was no idea to name the appellants. Kamaljit Singh owner of transport company was earlier known to the complainant. Complainant before occurrence had not demanded bribe from the appellants. When there was no enmity amongst the parties, then there was no reason to name the appellants. Occurrence is an admitted fact. The only dispute is whether the occurrence had taken place near Khakhan Railway Crossing or near Khajrula Petrol Pump, Jalandhar Cantt. When complainant was the member of flying squad, then there was no idea to change the place of occurrence.
Learned defence counsel for the appellants cited (i) 2000 (1) RCR (Crl.) 211, Satnam Singh vs. State of Rajasthan, and (ii) 2005 Crl.L.J. 955, Jagjit Singh @ Jagga vs. State of Punjab.
In Satnam Singh's case (supra), statements of two vital witnesses recorded by police under Section 161 Cr.P.C. three days after the offence though witnesses were available- Statements not relied upon. But in the present case, Constable Dalbir Singh and Constable Sukhchain Singh were not the eye witnesses. Although they were with the complainant but after the truck driven by Jagtar Singh was found to be loaded with items of general provision without bill or cash memo, then both the Constables were sent with the truck towards Mukerian side. So, authority cited by learned counsel for the appellants is not helpful to the appellants.
In Jagjit Singh @ Jagga's case (supra), case was under Section Crl.Appeal No. 128-SB of 2002 17 302 IPC- Delay of 3 days in recording the statement of a PW who was sole witness, who was a child of 7 years. It was held that witness was tutored by her father. Evidence not relied upon. But this authority is also not helpful to the appellants because complainant was serving as ETO-cum-Assistant Director Enforcement. Two police officials, namely, Constable Dalbir Singh and Constable Sukhchain Singh were not present when appellants had given injuries to the complainant.
According to the complainant, five persons were in maruti car who gave beatings to him, but three were challaned. If due to the fault of Investigating Officer, five accused were not challaned and only three were challaned, particularly when one of the accused was a proclaimed offender, then statement of the complainant is not to be ignored.
Occurrence is dated 8.1.1998, whereas rough site plan was prepared on 22.3.1998. Argued that rough site plan was not signed by the eye witnesses and the complainant. That means, investigation is tainted one. Admittedly, rough site plan is dated 22.3.1998, but rough site plan was prepared at the instance of the complainant. Constable Dalbir Singh and Constable Sukhchian Singh or Driver Kehar Singh were not the eye witnesses. So, there was no need to get their signatures on the rough site plan. Rough site plan is simply prepared to show where the occurrence had taken place and what was the distance between the assailants and the victim. No authority was cited by learned counsel for the appellants that if rough site plan is not signed by the complainant or the eye witnesses, then accused are to be acquitted. If we presume that rough site plan was to be signed by the complainant or the eye witnesses, then due to the negligence of Investigating Officer, statement of the complainant is not to be ignored. Crl.Appeal No. 128-SB of 2002 18
At the time of occurrence, appellant Kamaljit Singh was 40 years' old, whereas appellant Inderjit Singh was 25 years' old. They are the first offenders. Kamaljit Singh has already undergone nine months and ten days, whereas Inderjit Singh has already undergone ten months and eight days. After the present occurrence, they have not committed any such act. Six injuries were noticed on the person of complainant. Only one injury was found to be grievous in nature. As per doctor, injuries were possible by fall against hard surface. Appellants are to become hard criminals if again sent to jail to serve imprisonment as ordered by trial Court. Appellants were not inimical towards the complainant.
Keeping in view the facts of the present case, I am of the opinion that ends of justice would be fully met if lenient view is taken. Instead of directing the appellants to undergo imprisonment as ordered by the trial Court, they are directed to undergo imprisonment already undergone ( nine months and ten days in case of Kamaljit Singh and ten months and eight days in case of Inderjit Singh). Appellants are further directed to deposit Rs.20,000/- more each as fine within two months before the trial Court, payable to the injured complainant as compensation.
For the reasons recorded above, appeal without merit is dismissed with the modification qua sentence.
9.8.2010 ( JORA SINGH ) pk JUDGE