Punjab-Haryana High Court
Pawan Kumar & Another vs State Of Punjab And Ors on 30 August, 2022
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
CRA-S-2692-SB-2010 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CRA-S-2692-SB-2010 (O & M)
Reserved on: 26.08.2022
Pronounced on: 30.08.2022
PAWAN KUMAR THEKEDAR AND ANR. .....Petitioners
Versus
THE STATE OF PUNJAB AND OTHERS .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
Argued by: Mr. Dinesh Ghai, Advocate
for the appellant.
Ms. Ishma Randhawa, Addl. A.G., Punjab.
Mr. Rahul Verma, Advocate for
Mr. Rajinder Goyal, Advocate
for the complainant.
****
SURESHWAR THAKUR, J.
1. The learned Additional Sessions Judge, Ludhiana through a verdict drawn on 29.10.2010, upon case SC No. 5 of 04.01.2007 proceeded to, in respect of charges drawn against the accused for offences punishable under Sections 308, 325 and 323 of the IPC, hence make a verdict of conviction, upon, the convicts. Moreover, through a separate sentencing order drawn on 29.10.2010, the learned trial Judge concerned, proceeded to make the hereinafter extracted sentence(s) upon the convicts.
1. Pawan Kumar accused U/s 308 IPC Imprisonment for 4 years and fine of Rs. 2500/-. In default of payment of fine he shall further undergo RI for two month.
1 of 10 ::: Downloaded on - 01-09-2022 21:05:41 ::: CRA-S-2692-SB-2010 -2- U/S 325 IPC Imprisonment for 3 years and fine of Rs. 1000/-. In default of payment of fine he shall further undergo RI for one month.
U/S 323 IPC Imprisonment for 6 month and fine of Rs. 500/-. In default of payment of fine he shall further undergo RI for 15 days.
2. Sunil Kumar accused U/s 308 IPC Imprisonment for 4 years and fine of Rs. 2500/-. In default of payment of fine he shall further undergo RI for two month.
U/s 325 IPC Imprisonment for 3 years and fine of Rs. 1000/-. In default of payment of fine he shall further undergo RI for one month.
U/s 323 IPC Imprisonment for 6 months and fine of Rs. 500/-. In default of payment of fine he shall further undergo RI for two month.
2. The convicts become aggrieved from the verdict of conviction (supra), and, also become aggrieved from the consequential therewith sentence(s) (supra), as became imposed upon them by the learned Convicting Court, and, have chosen to assail them, through theirs' constituting the instant appeal before this Court.
3. The genesis of the prosecution case becomes narrated in the appeal FIR, to which Exhibit PW-8/B is assigned. The appeal FIR narrates that on 21.06.2006, a telephonic call was received from the CMC Hospital, that Madan Singh son of Ram Dhian was admitted in the hospital due to injuries received in a fight, and, that an Investigating Officer be sent. Upon this, ASI Kawaljit Singh went there, and, sought opinion of the doctor regarding fitness of the injured to make statement. The doctor opined that the injured was unfit to make statement till 25.06.2006. At that time no body was present in the hospital to narrate the story of the occurrence. On 26.06.2006 Jatinder Singh was present in the hospital, and, he got recorded his statement before ASI Kawaljit 2 of 10 ::: Downloaded on - 01-09-2022 21:05:41 ::: CRA-S-2692-SB-2010 -3- Singh that he was a contractor/Thekedar, and, used to get the work done on labour basis. On 19.06.2006, he alongwith Madan Singh Munsi was going towards Gobindgarh, and, when they reached near village Pawa, then at about 5 A.M., Pawan Kumar, and, his brother Sunil alongwith 4-5 other persons who were already present there, raised lalkara to catch hold of Madan Singh. Sunil, and, Pawan Kumar started giving rod blows on head, and, legs of Madan Singh, and, other persons pushed Madan Singh on the ground, and, gave kick blows to him. The blood started oozing from his head. Madan Singh raised cries "Mar Ditta, Mar Ditta", and, on hearing his cries, Nand Parshad, Vashishat Kumar, and, Pandey came there, and, all of them saved Madan Singh from the clutches of the accused. The accused persons fled away from the place of occurrence with their respective weapons. The complainant arranged the vehicle and got admitted Madan Singh initially in Civil Hospital, Ludhiana, and, then at CMC hospital. The motive behind the occurrence was that a day before the occurrence, there was an altercation between Madan Singh, and, Pawan Kumar Thekedar.
4. On the basis of the statement of the complainant, to which Ex.PA, is assigned, a formal FIR was registered, and, thereafter investigations became launched, and, site plan of the place of occurrence was prepared. Moreover, the accused were arrested, and, during investigations the accused Pawan Kumar got recovered iron rod.
5. After completion of investigations by the investigating officer concerned, into the FIR (supra), he instituted an affirmative report under Section 173 Cr.P.C., before the learned Committal Judge concerned.
6. As the offence under Section 308 IPC was exclusively 3 of 10 ::: Downloaded on - 01-09-2022 21:05:41 ::: CRA-S-2692-SB-2010 -4- triable by the Court of Session, therefore, the learned committing Court, committed the case to the Court of the learned Additional Sessions Judge, Ludhiana.
7. On finding a prima facie case, charges under Sections 308/323 IPC became framed, against the accused, and, to which they pleaded not guilty, and, claimed trial.
8. In support of the prosecution case, the prosecution examined eight witnesses. After completion of recording of the depositions of the prosecution witnesses, the learned Additional Sessions Judge, Ludhiana drew proceedings, under Section 313 of the Cr.P.C., but thereins, the accused claimed false implication, and, pleaded innocence.
9. After conclusion of the trial, as, became entered upon the FIR (supra), by the learned Additional Sessions Judge, Ludhiana, the latter proceeded to make the afore verdict of conviction, and, also made the consequent therewith sentence(s) (supra), upon, the present appellants.
10. The prosecution case is rested upon the deposition of an ocular witness to the occurrence who stepped into the witness box as PW-1. Moreover, it also becomes rested upon the deposition of the victim injured one Madan Singh, who stepped into the witness box as PW-2. PW-1 in his deposition comprised in his examination-in-chief, has made disclosure(s) which are in completest tandem with the incriminatory narrations, as, made in the appeal FIR, qua the crime event. Though, he faced the ordeal of an exacting cross examination, but he has completely denied the suggestions, as became put to him, qua his not being available at the crime site at the relevant time.
4 of 10 ::: Downloaded on - 01-09-2022 21:05:41 ::: CRA-S-2692-SB-2010 -5- Therefore, his deposition in his examination-in-chief, which completely supports the version, as made qua the crime incident, and, as carried in the appeal FIR, does obviously, require that credence be assigned thereto. Significantly, also when a reading of his cross examination, does not disclose, that he has in his examination-in-chief made any dire improvements, or, embellishments over his previously recorded statement recorded in writing.
11. Moreover, the deposition of PW-1, is lent corroboration by deposition of PW-2, who is the victim injured. Even in his examination- in-chief, he has specifically named the accused to make an assault/injuries upon his person, through each delivering upon him iron rod blows, one of which he testifies to strike his forehead, and, the other is testified to strike his right leg. Subsequently, he testifies that he fell down, and, also then he speaks that yet the accused belabouring him with kick blows, resultantly, blood oozing from his head, and, leading to his becoming admitted at Civil Hospital, Ludhiana, and, thereafter at CMC Ludhiana, for medical treatment becoming purveyed to him.
12. Significantly, also when during the course of his being put to cross-examination rather his above made testification remained unbelied, besides, when in his examination-in-chief, he has not made any stark, or, blatant embellishments, or, improvements over his previous statement recorded in writing, resultantly his testification is to be assigned creditworthiness.
13. Moreover, though through the testification of PW-2, the testification of PW-1, acquires corroboration, as both depose not only with inter-se corroboration, but also depose with intra se corroboration.
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14. Nonetheless, though the fact of wielding at the crime site of two iron rods by each of the accused, and, also the fact of with users' thereof, both inflicting injuries on the person of victim, rather becomes deposed consistently, by PW-1, and by PW-2, but yet the above fact also did require corroboration from /upon, valid recoveries from each being made, hence of the crime weapons, unless the crime weapons' were destroyed, and, resultantly an offence under Section 301 IPC was added against the accused.
15. In the above regard, a reading of the testification of the investigating officer concerned, who stepped into the witness box as PW-8, discloses that during the course of his interrogating accused Pawan Kumar, the latter making a signatured disclosure statement, and, to which Exhibit PW-5/A is assigned. A reading of Exhibit PW-5/A discloses qua accused Pawan Kumar confessing his guilt, and, also showing his willingness to ensure recovery of the crime weapon(s) to the investigating officer concerned, from the place of his keeping, and, hiding them. Since subsequent thereto, the crime weapons' became recovered through memo drawn in Exhibit PW-5/B, resultantly unless evidence surged forth reflective qua the accused provenly denying the existence of his signatures on Exhibit PW-5/A, and or, evidence emerging rather reflective of the investigating officer concerned, engineering, or, inventing the recoveries of the crime weapons, as became effected in pursuance thereof, through memo Exhibit PW-5/B, thereupon, probative sanctity became enjoined to be meted to the above memo(s). However, a close reading of the evidence on record, more particularly of PW-8, though does disclose that the defence took to make the above suggestions to him, but the apposite suggestions 6 of 10 ::: Downloaded on - 01-09-2022 21:05:41 ::: CRA-S-2692-SB-2010 -7- became denied. Consequently, when no further best evidence, to bely the denial by PW-8 of exculpatory suggestions, rather remained unadduced, therefore, the apposite denied exculpatory suggestions are not sufficient, to prove the defence propagation.
16. In consequence, probative sanctity is to be assigned to the above memo(s), and, but as a natural corollary, not only the drawings of memo(s), and, but also the recoveries of weapons at the instance of co- accused Pawan Kumar, do support, and, corroborate the ocular version qua the crime incident, as becomes consistently deposed by PW-1, and, by PW-2.
17. Even though, both the weapons of offence became recovered only at the instance of accused Pawan Kumar, but not at the instance of co-accused Sunil Kumar, yet the above fact, also does not dilute the vigor of the above made inference, that co-accused Sunil Kumar, was a co-participant alongwith co-accused Pawan Kumar rather in the relevant crime incident. The reason being that, the attribution of guilt to him by the ocular witnesses, to the occurrence rather has not been, for the reason (supra), neither attempted to be belied nor obviously his participation therein has been belied.
18. The MLR, as, prepared with respect to the injured-victim by the examining doctor, one Elizebith Sunny, and, to which Exhibit PW7/A, is assigned, has though not been proven by the author thereof, rather has been proven by PW-7, who has in his examination-in-chief deposed that he was familiar with the handwritings, and, signatures of Dr.Elizebith Sunny, resultantly the afore adopted mode of proof by the prosecution, in respect of the MLR of the victim, to which Exhibit PW- 7/A, is assigned, is rather both worthy of acceptance, and, but also for 7 of 10 ::: Downloaded on - 01-09-2022 21:05:41 ::: CRA-S-2692-SB-2010 -8- the fullest reliance being placed thereon. The prime reason becomes comprised in the factum, that no evidence has emerged revealing, that the signatures, as made by Dr.Elizebith Sunny, on Exhibit PW-7/A, and, which became proven by Exhibit PW-7, being either fictitious, or, forged.
19. In consequence, when the medical account, as recorded, in respect of the crime incident supports the credible ocular account, resultantly this Court concludes, that the finding of conviction recorded against the convict by the learned trial Judge concerned, rather does not merit any interference.
20. However, the learned counsel appearing for the convicts, has drawn the attention of this Court, to the occurrence of a compromise appended, as Annexure A-6, with application CRM-45931 of 2018, and, on its anchor, he claims relief that this Court orders for composition of the appeal offences. Though, the empowerment to quash proceedings, as, vested in this Court under Section 482 Cr.P.C., is of the widest plenitude, but yet is subject to the limitations prescribed in verdicts drawn by the Hon'ble Apex Court is cases 'Narinder Singh and others vs. State of Punjab and another', (2014) 6 SCC 466, and, 'Gian Singh versus State of Punjab and another', 2012(4) RCR (Criminal) 543, but the exercising of the above jurisdiction, by this Court, is only in respect of proceedings pending before the learned First Appellate Court after a verdict of conviction being pronounced by the learned convicting Court concerned. Necessarily, the above empowerment vested in this Court, to quash proceedings, is neither, in respect of proceedings pending before this Court, and, nor is available to become recoursed by this Court.
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21. Be that as it may, the occurrence of the compromise amongst the concerned, when is for the holistic purpose of ensuring the prevalence of amity amongst them, and, rather may enjoy some value, but only for reducing the sentence of imprisonment imposed, upon, the convicts, and, or for modifying the sentence imposed, upon, the convicts to the term already spent by each of them in prison.
22. Moreover, in the above regard, the period spent in prison, is relevant, and, in that regard the custody certificates of each of the accused assume importance.
23. Since a reading of the custody certificates respectively of each of the convicts, reveals that both the accused have undergone more than 1 year and 3 months of substantive sentence in prison.
24. Therefore, the above spent period in prison is declared to be the sentence to be imposed upon the convicts accused, in modification of the sentence(s) imposed upon each, of the convicts, by the learned Additional Sessions Judge, Ludhiana. However the sentence of fine amount, if any, imposed the convicts shall remain undisturbed.
25. In consequence, with the above modification only qua the term of sentence of imprisonment, this Court finds no merit in appeal, and, is constrained to dismiss it, and, is accordingly dismissed.
26. The impugned verdict of conviction is affirmed, and, maintained, but reiteratedly the sentence of imprisonment, as imposed upon each of the convicts, is reduced/modified to the term already spent by each of them, in prison. However, the afore is subject to the deposit by each, of the fine amount, if any, imposed upon each of the convicts, by the learned Convicting Court, but only if the same has not been 9 of 10 ::: Downloaded on - 01-09-2022 21:05:41 ::: CRA-S-2692-SB-2010 -10- already deposited.
27. The Personal and Surety bonds of the convicts are ordered to be forthwith cancelled and discharged, and, both be set at liberty, if in prison, and, if not required in any other case.
28. The case property, if any, be dealt with in accordance with law after the expiry of period of limitation for the filing of an appeal, records be sent back to the trial Court concerned.
(SURESHWAR THAKUR)
30.08.2022 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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