Punjab-Haryana High Court
Thana Singh And Anohter vs State Of Punjab on 24 August, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-416-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-416-SB of 2003
Date of decision: 24.08.2011
Thana Singh and anohter
........ Appellants
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. SPS Sidhu, Advocate, for the appellants.
Mr. Jaspreet Singh, AAG, Punjab.
JORA SINGH, J.
Thana Singh and Nirmal Singh-appellants preferred this appeal to impugn the judgment of conviction and order of sentence dated 5.2.2003, rendered by the learned Additional Sessions Judge, Fast Track Court, Ferozepur, in Sessions Case No. 17-A/1998, arising out of FIR No. 172 dated 12.11.197, registered under Sections 307/452/323/34 of the Indian Penal Code (IPC-for short), at Police Station Zira.
By the said judgment, both the appellants namely Thana Singh and Nirmal Singh along with co-accused Prem Paul @ Prem Kumar, were convicted under Sections 452/307/323/34 IPC and were sentenced as under:
CRA-S-416-SB of 2003 -2-
1. Thana Singh and Nirmal Singh under Section 452 IPC To undergo rigorous imprisonment for a period of three years each and to pay a fine of ` 500/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of nine months each.
2. Thana Singh and Nirmal Singh under Section 307/34 IPC To undergo rigorous imprisonment for a period of five years each and to pay a fine of ` 500/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of nine months each.
3. Thana Singh and Nirmal Singh under Section 323 IPC To undergo rigorous imprisonment for a period of three months each.
Prempaul @ Prem Kumar, has not filed any appeal against the impugned judgment and order.
Co-accused namely Raj Kumar @ Raju, had died during the pendency of the trial.
Prosecution story, in brief, is that on 11.11.1997, a ruqa was received from Civil Hospital, Zira, regarding admission of Kashmir Ali and Khushi Mohammad. On receipt of ruqa, ASI Mangal Singh along with police party had gone to Civil Hosptial, Zira, then came to know that injured were referred to Guru Gobind Singh Medical College CRA-S-416-SB of 2003 -3- and Hospital, Faridkot. ASI Mangal Singh, had gone to GGS Medical College and Hospital, Faridkot. Application was moved requesting the doctor to opine as to whether injured are fit to make statement or not. As per report of the doctor, Kashmir Ali-injured was declared unfit to make statement, then statement of Khushi Mohammad-injured was recorded. Khushi Mohammad, reported to the police that he is the resident of village Gadri Wala and has three sons namely Kashmir Ali, Resham Ali and Balbir Ali. They are residing jointly in a house. On 10.11.1997 at about 8.00 p.m. they were present in their house and were busy in talks. Electric light was on. In the meantime, Thana Singh, armed with gandasa, Nirmal Singh armed with gandasi, Raju armed with dattar and Prempaul armed with dang came inside their house and raised lalkara in a taunting way that cash payment of the wall is to be paid to him. Then Raju armed dattar gave blow on the person of Kashmir Ali. Nirmal Singh armed with gandasi gave blow from its reverse side on the head of Kashmir Ali. Thana Singh armed with gandasa gave blow hitting the right hand of the complainant (Khushi Mohammad). Raula was raised then his son Resham Ali and his nephew Darish came at the spot. On seeing them, accused had fled away from the spot with their respective weapons. Motive to cause injuries was that sometimes back he had a dispute regarding wall with Thana Singh-appellant. Raju and Prempaul used to visit the house of Darish to fetch water. Raju and Prempaul were not carrying good reputation, so, they were stopped from visiting the house of Darish to fetch water. They had abused him. Due to this reason accused had caused injuries to them with their respective weapons. CRA-S-416-SB of 2003 -4- Statement of the complainant (Khushi Mohammad) was recorded by ASI Mangal Singh at 6.00 a.m. on 12.11.1997. After making endorsement, statement was sent to the police station on the basis of which formal FIR was recorded.
ASI Mangal Singh, had gone to the spot and after inspecting the spot, had prepared the rough site plan with its correct marginal notes. Statements of the witnesses were recorded. Later on offence punishable under Sections 452/308 IPC were added. On 10.12.1997, Rajesh Kumar @ Raju and Prempaul were arrested. Nirmal Singh, was also arrested. Gandasi was recovered from Nirmal Singh. Sketch of the gandasi was prepared. Gandasi was taken into police possession vide memo attested by the witnesses. On the same day, gandasa was also recovered from Thana Singh. Sketch of the gandasa was prepared separately and the same was taken into police possession vide separate memo attested by the witnesses. After the completion of investigation, challan was presented in the Court.
Offence punishable under Section 308 IPC was exclusively triable by the Court of Session, so, case was committed to the Court of Session for trial by the Illaqa Magistrate.
After hearing learned PP for the State, learned defence counsel and from the perusal of documents on the file, a prima facie case is made out to frame charge under Sections 452/307/323/34 IPC. Accused were charge-sheeted accordingly, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
CRA-S-416-SB of 2003 -5-
PW-1 Dr. Jaswant Singh, Medical Officer, Civil Hospital, Zira, stated that regarding admission of Kashmir Ali and Khushi Mohammad, ruqa Ex. P-1, was sent to the police station.
PW-2 Raj Rani, Record-keeper, Guru Gobind Singh Medical College, Faridkot, stated that the bed head tickets of Kashmir Ali and Khushi Mohammad were produced before the Investigating Officer.
PW-3 Ravinder Singh Zirvi, Draftsman, had prepared the scaled site plan Ex. P-2.
PW-4 Khushi Mohammad is the complainant/injured. He has reiterated his stand before the police as per his statement Ex. P-3.
PW-5 Kashmir Ali, is the second injured eye-witness. He has supported the version of Khushi Mohammad-complainant.
PW-6 Dr. Sarvjit Singh Sandhu, stated that on 12.11.1997 at about 12.00 a.m. (night) he had medico-legally examined Kashmir Ali and found the following injuries on his person:
"1. Lacerated wound measuring 3 x 2.7 cm present on right parietal region, 9 cm above the right ear and was obliquely placed. Wound was bleeding and X-ray was advised and surgeon's opinion.
2. Incised wound measuring 0.75 cm x 0.25 cm present on the posterior lateral side of right ear. Wound was skin deep and was bleeding."
Injury No.1 was kept under observation. Probable duration of the injuries was within about six hours. For injury No.1 blunt weapon was CRA-S-416-SB of 2003 -6- used and for injury No. 2 weapon used was sharp. After X-ray report injury No.1 was declared dangerous to life whereas injury No. 2 was declared simple in nature.
On the same day, he had also medico-legally examined Khushi Mohammad and found the following injuries on his person:
"1. Lacerated wound measuring 1.5 cm was present on the posterior medial of right index finger in its middle third. Wound was obliquely placed and was bleeding and X-ray was advised.
2. Lacerated wound measuring 0.5 x 0.25 cm was present on the posterior side (1.5 cm above its base) and was obliquely placed. Wound was bleeding and was skin deep. X-ray was advised. "
Probable duration of injuries was within 6 hours. Weapon used for both the injuries was blunt.
PW-7 SI Mangal Singh, is the Investigating Officer. PW-8 Dr. P.K. Goyal, stated that Kashmir Ali was operated upon by him on 25.11.1997. Ex. P-18 are the surgical notes recorded by him.
After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. They denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of Thana Singh and Nirmal Singh- appellants was that they were not present at the place of occurrence. In CRA-S-416-SB of 2003 -7- fact there was Panchayat Election on the next day of the occurrence. Tej Kaur and Baldev Singh, were the candidates for the post of Sarpanch. Both the parties served liquor to their respective supporters and the supporters including the complainant party were at the support of Baldev Singh and they had a fight with the supporters of Tej Kaur. Supporters hurled abuses and brick bats on each other during the night time. Complainant party was not sure as to who had caused injuries to them. Due to dispute of common wall they were named.
In defence, DW-1 Kaura Singh, appeared and stated that about 4 years back Kashmir Ali and Khushi Mohammad received injuries when supporters of Baldev Singh and Tej Kaur, pelted stones on each other.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on the file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on the file.
After arguing for some time when learned defence counsel for the appellants failed to point out any infirmity or illegality in the impugned judgment then stated that impugned judgment is not challenged on the point of conviction. Learned counsel for the appellants further submitted that occurrence was in the month of November, 1997 and as per prosecution story, Nirmal Singh was armed with gandasi and gave blow from its reverse side on the head of CRA-S-416-SB of 2003 -8- Kashmir Ali. Thana Singh armed with gandasa gave blow hitting the right index finger of Khushi Mohammad-complainant. According to MLR, two injuries were noticed on the person of Kashmir Ali and three injuries were noticed on the person of Khushi Mohammad. Injuries on the person of Khushi Mohammad were found to be simple in nature. Only one injury on the person of Kashmir Ali, attributed to Nirmal Singh, was found dangerous to life. Injury was caused with a gandasi from its reverse side. Appellants had no intention to murder. If appellants had the intention to murder then injuries could easily be caused from the sharp side of the gandasi. Nirmal Singh is the son of Thana Singh- appellant. Both are the labourers. At the time of present occurrence, Thana Singh was 50 years old and Nirmal Singh was 20-22 years old. Appellants had no serious dispute with the complainant party. Dispute was regarding payment of a common wall. Appellants are the first offenders. After the present occurrence no other case against the appellants. Nirmal Singh, has already undergone 2 years 1 month and 9 days out of the actual sentence and Thana Singh, has already undergone 9 months and 13 days out of the actual sentence. Requested to take lenient view.
Learned State counsel argued that dispute was regarding payment of a common wall. Appellants along with Raj Kumar @ Raju (deceased) and Prempaul, had gone to the house of the complainant party. Appellants were fully armed and had caused injuries to Khushi Mohammad and Kashmir Ali. Nirmal Singh-appellant gave blow from the reverse side of gandasi on the head of Kashmir Ali and injury was declared dangerous to life. No doubt appellants are very poor but two CRA-S-416-SB of 2003 -9- injured from the other side. Injured be compensated.
No doubt, learned defence counsel for the appellants has not challenged the impugned judgment on the point of conviction and only requested to take lenient view but even then I want to scrutinize the evidence as to whether injuries were caused by both the appellants as prosecution story or not?
Both the injured namely Khushi Mohammad (PW-4) and Kashmir Ali (PW-5) appeared in Court and have categorically stated that appellants along with Raj Kumar @ Raju and Prempaul, had caused injuries to them with their respective weapons. After the occurrence, injured were shifted to hospital. Regarding admission of injured, ruqa was sent to the police station then on receipt of ruqa Investigating Officer, had gone to Civil Hospital, Zira, but came to know that injured were referred to GGC Medical College and Hospital, Faridkot. Investigating Officer had gone to GGC Medical College and Hospital, Faridkot and recorded the statement of Khushi Mohammad- injured because second injured Kashmir Ali was declared unfit to make statement. Injured were medico-legally examined by the doctor. Two injuries were noticed on person of Kashmir Ali and two injuries were noticed on the person of Khushi Mohammad. Injuries on the person of Khushi Mohammad, were found to be simple in nature but one injury on the person of Kashmir Ali on the head caused by Nirmal Singh was found to be dangerous to life. Nirmal Singh was armed with gandasi and gave blow from its reverse side. Earlier to the present occurrence, there was no dispute amongst the parties. Minor dispute regarding payment of common wall. No witness appeared in defence to state that CRA-S-416-SB of 2003 -10- appellants were not present at the time of occurrence or due to party faction in village, appellants were named.
According to the defence version, on the next day of the occurrence election of Sarpanch was to be held. Tej Kaur and Baldev Singh were the candidates for the post of Sarpanch. Supporters of both the candidates had clashed with each other. Supporters of both the candidates started pelting stones. In that dispute Kashmir Ali and Khushi Mohammad received injuries but no suggestion was put to the doctor that injuries noticed on the person of Khushi Mohammad and Kashmir Ali, can be self-suffered of self-inflicted or injuries were possible with the pelting of stones.
In view of the statements of the injured, doctor and the Investigating Officer, I am of the opinion that prosecution story inspires confidence and was rightly upheld by the trial Court.
Undisputedly, at the time of occurrence Thana Singh was 50 years old and Nirmal Singh, was 20 years old. Both are the labourers. Raj Kumar @ Raju has died during the pendency of the trial whereas Prempaul @ Prem Kumar is out of jail after undergoing the entire sentence. Occurrence was in the month of November, 1997. Thana Singh, has already undergone 9 months and 13 days out of the actual sentence whereas Nirmal Singh, has already undergone 2 years 1 month and 9 days out of the actual sentence. Except the present case, no other case against the appellants. Appellants are the first offenders and belongs to a poor family. Ends of justice would be fully met it lenient view is taken otherwise appellants would become hardcore criminals, if again sent to jail to undergo imprisonment as CRA-S-416-SB of 2003 -11- ordered by the trial Court.
In view of all discussed above, I am of the opinion that evidence on file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment. No reason to differ. Impugned judgment on the point of conviction is upheld.
Keeping in view the facts of the case and antecedents of the appellants, I take lenient view and direct the appellants to undergo imprisonment already undergone (in case of Thana Singh 9 months 13 days and in case of Nirmal Singh 2 years 1 month and 9 days). Appellants are further directed to deposit ` 10,000/- each more as fine within two months before the trial Court, payable to the injured in equal shares as compensation.
For the reasons recorded above, appeal without merits is dismissed, with modification on the point of sentence.
August 24, 2011 ( JORA SINGH ) rishu JUDGE