Punjab-Haryana High Court
Joginder Kaur And Another vs State Of Punjab on 25 April, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
CRA-S-1351-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH
Crl. Appeal-S No.1351-SB of 2003 (O&M)
Date of Decision: April 25, 2014.
Joginder Kaur and another
..........APPELLANT(s).
VERSUS
State of Punjab
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. H.S. Gill, Senior Advocate with
Mr. KBS Mann, Advocate
for appellant Joginder Kaur.
Appellant Jasbir Singh already died.
Ms. Shivali, Asstt. A.G., Punjab.
*******
SURINDER GUPTA, J.
Appellants Joginder Kaur and Jasbir Singh were convicted and sentenced in FIR No.436 dated 15.11.1999 registered under Sections 302, 452, 323, 324, 326 read with Section 34 Indian Penal Code (for short 'IPC') at Police Station Sadar Jalandhar, by the Court of Additional Sessions Judge, Jalandhar as follows:-
Appellant Joginder Kaur Convicted for the offence Sentence punishable under Section Rigorous Imprisonment Fine 325 IPC Three years `1000 in default of payment of fine to further undergo rigorous imprisonment for one year.
326 read with Sec.34 IPC Three years `1000 in default of payment of fine to further undergo rigorous imprisonment for one year.
323 IPC One year ---Mehta Sachin 2014.05.01 17:36 I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -2-
Appellant Jasbir Singh Convicted for the offence Sentence punishable under Section Rigorous Imprisonment Fine 325 IPC Five years `1000 in default of payment of fine to further undergo rigorous imprisonment for one year.
326 IPC Six years `1000 in default of payment of fine to further undergo rigorous imprisonment for one year.
323 read with Sec. 34 IPC One year ---
The case of the prosecution, in brief, is that on 15.11.1999, complainant Nirmal Singh along with his wife Kuldeep Kaur had gone to the house of Didar Singh and was present there when they heard the noise of quarreling of Palwinder Singh a resident of village of Didar Singh and one driver of four-wheeler. They went towards them and inquired about the matter. Palwinder Singh told Didar Singh that the four-wheeler had hit his scooter causing a dent on the mudguard. The matter was got settled after certain payments made by four-wheeler driver to Palwinder Singh and both left the spot.
Complainant along with Didar Singh came to his house. After some time, Jasbir Singh (since deceased) along with his mother Joginder Kaur came to the house of Didar Singh and started abusing him. On inquiry, they told that the scooter of Palwinder singh had extensive damage and Didar Singh had favoured the four-wheeler driver and let him go after making little payment. Jasbir Singh was armed with Kirch and Joginder Kaur with a Daat. Both of them attacked Didar Singh. Jasbir Singh gave a Kirch blow which hit on the left hand of Didar Singh while Joginder Kaur gave two blows from back side of Mehta Sachin 2014.05.01 17:36 I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -3- Daat hitting the chest and right hand of Didar Singh. The complainant intervened. His wife and daughter-in-law of Didar Singh were also attracted to the spot at which both the assailants ran away. Didar Singh was taken to Civil Hospital by his nephew and other persons while the complainant remained in his house and was having a chat with Karam Kaur wife of Didar Singh, aged 68 years. At about 5.15 PM, accused Jasbir Singh and his mother Joginder Kaur again came to the house of Didar Singh and started giving fist blows to Karam Kaur. Complainant, his wife Kuldeep Kaur and Ravinder Kaur daughter-in-law of Didar Singh intervened and saved Karam Kaur and raised alarm, at which Jasbir Singh and his mother ran away from the spot. They started taking care of Karam Kaur, who was facing difficulty in breathing. She was made to lay down on a cot, where she breathed her last. The matter was reported to the police by Nirmal Singh vide his statement (Ex.PB) whereupon formal FIR (Ex.PK) was registered at Police Station Sadar Jalandhar. Both the appellants were arrested.
After completion of investigation, challan was presented against the appellants and they were charge-sheeted for the offences punishable under Sections 449, 302, 326, 323 read with Section 34 IPC to which they pleaded not guilty and claimed trial.
The prosecution in support of its case, examined PW1 Dr. Jasmeet Walia, PW2 Nirmal Singh complainant, PW3 Dr. D.S. Bimra, PW4 Dr. Kuldeep Singh Chahal, PW5 injured Didar Singh, PW6 Ravinder Kaur, PW7 Dalip Singh Draftsman, PW8 Harkishan Pal Singh, PW9 Sukhwinder Singh, PW10 Dr. Balbir Singh, PW11 Head Constable Surjit Singh, PW12 ASI Jaspal Singh, PW13 Head Constable Sardul Singh, PW14 Head Constable Harjinder Singh and PW15 Sub Inspector Harbinder Singh.
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After completion of prosecution evidence, statements of the appellants as required under Section 313 Code of Criminal Procedure was recorded in which they denied the prosecution allegations and pleaded their false implication.
Appellant Joginder Kaur stated in her defence as follows:-
"No occurrence ever took place. Karam Kaur deceased was a heart patient and an old lady. She died a natural death due to heart attack. We never caused any injury to her. Complainant has falsely implicated us on account of enmity. Son of the complainant contested the election of Sarpanch and we supported the opposite candidate and so the complainant party was inimical with us. Tarlok Singh brother of complainant took money for sending the son of Gurdev Singh, my husband, abroad but he never sent him abroad. We were demanding our money back but they refused and in connivance with each other, they falsely implicated us in this case. Enquiry was held by the police in which we were found innocent." Appellant Jasbir Singh also took the similar defence. The trial resulted in conviction of the appellants for offences punishable under Sections 325, 326 and 323 IPC for which appellants were sentenced as mentioned in first para of this judgment.
During the pendency of this appeal, Jasbir Singh appellant has died. Learned State counsel presented the death certificate of Jasbir Singh, which was taken on record. Learned counsel for the appellants has submitted that after the death of Jasbir Singh, he does not press the appeal on his behalf and withdraw the same.
I have heard learned counsel for appellant Joginder Kaur and learned State counsel and have perused the file with their assistance. Mehta Sachin 2014.05.01 17:36 I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -5-
Learned counsel for the appellant has argued that the injuries on the person of Didar Singh attributed to Joginder Kaur was simple in nature. As per statement of Didar Singh, she was armed with a Dang and not Daat as stated by complainant Nirmal Singh in his statement to the police and also while appearing as PW2. Even Ravinder Kaur, daughter-in-law of Didar Singh while appearing as PW6 has stated that Joginder Kaur was armed with Dang. This discrepancy in the prosecution version and statements of witnesses goes a long way to show that the version of occurrence as given by the complainant to the police was not correct. He has further argued that death of Karam Kaur had taken place due to cardiac arrest and not due to any injury caused to her. The doctors have not found any sign of injury on her body at the time of post- mortem examination and the appellants were falsely implicated in this case. Even if the prosecution version is believed, the offence made out against appellant Joginder Kaur is only under Section 323 IPC and not under Section 325 IPC. Learned trial Court has committed grave error of law and fact while reaching the conclusion that the offence proved against appellant Joginder Kaur was for offence punishable under Section 325 IPC. Learned counsel for appellant Joginder Kaur has further argued that in case appellant Joginder Kaur is not found entitled to be acquitted, she deserves leniency in the matter of sentence as she has lost her son Jasbir Singh. She is an old lady of about 56 years of age by now and has suffered the agony of trial and her conviction for the last more than 15 years.
The occurrence took place over an incident which has nothing to do with Didar Singh injured. There was a collision of scooter of Palwinder Singh with a four-wheeler. Both Palwinder Singh and driver of four-wheeler were Mehta Sachin 2014.05.01 17:36 I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -6- quarreling. Didar Singh intervened and settled the matter. The driver of the four-wheeler made certain payment to Palwinder Singh for damage to his scooter. Complainant Nirmal Singh was married at village Hirapur and has gone to his in-laws. After meeting his in-laws, he had gone to the house of Didar Singh and was present at the time when occurrence took place. He has stated that appellant Joginder Kaur with her son Jasbir Singh came to the spot and caused injuries to Didar Singh. His statement has been further supported by injured himself, who has appeared as PW5 and Ravinder Kaur, daughter-in-law of Didar Singh who appeared as PW6. This fact as to whether appellant Joginder Kaur was armed with a Dang or Daat is not relevant as the injury caused by her was with blunt weapon and declared simple in nature.
The injury on the person of Didar Singh by Jasbir Singh on his left hand was declared grievous in nature. This injury was caused by sharp edged weapon. The ocular version finds support from the medical evidence on record. Appellants have not been able to prove any reason or motive for Didar Singh to falsely implicate them. The statements of injured Didar Singh PW5, complainant Nirmal Singh PW2 and Ravinder Kaur eyewitness PW6 were found reliable by the trial Court and I find no reason to differ with this finding in this regard to interfere with the conviction of appellant Joginder Kaur under Sections 326 read with Section 34 IPC and Section 323 IPC for the occurrence that took place at about 2.45 PM on 15.11.1999.
The second occurrence took place on the same day in the evening. As per the complainant, both Jasbir Singh and his mother Joginder Kaur had come to the house of Didar Singh and gave fist blows to his wife Karam Kaur, who felt breathlessness and collapsed.
Mehta Sachin2014.05.01 17:36
Her postmortem examination was I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -7- conducted by Dr. D.S. Bimra PW3. He did not find any external mark of injury on her body. On dissection and exploration, he found that heart was having blood on both sides. As per the case of prosecution, she was a heart patient. The cause of her death was cardiac arrest and this opinion of the doctor is based on the report of histopathological examination of pieces of lung and heart sent by Dr. D.S. Bimra, by Dr. Kuldeep Singh Chahal, Medical Officer of Government Medical College, Amritsar. Learned trial Court ruled out the commission of offence under Section 302 or 304 IPC in this case but concluded that the offence disclosed is under Section 325 IPC. The conclusion of the trial Court to this effect are contained in para 24 and 25 of the judgment which are reproduced as follows:-
".....................................................................................................
But so far as offence under Section 325 IPC is concerned, same is proved as accused are found to have cause voluntarily injury.
This injury cannot be said to be simple, so it is not only an offence under Section 323 IPC but it is an offence under Section 325 IPC. Such a blood on both the sides of the heart is found to be due to homicidal act of the accused. Though there was no visible injury but it is found covered by the definitions of grievous injury given in Section 320 IPC in 8th clause which reads as under:
'320. The following kinds of hurt only are designated as "grievous".
Eightly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days of severe bodily pain or unable to follow his Mehta Sachin 2014.05.01 17:36 ordinary pursuits.' I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -8-
25. Since the blood on both the sides of heard was due to giving of the fist blows on the chest of the deceased, so it was an act which not only endangered life but it proved dangerous. So, it is found covered by clause 8, so it is found to be a grievous injury. So, offence proved is under Section 325 IPC instead of 302 IPC."
Clause 8 of Section 320 IPC describes a hurt which endangers life as grievous hurt. This means that the injury which is actually found, should itself be such that it may put a life of injured in danger. In this case, there was no sign of injury on the person of deceased Karam Kaur. The doctor has nowhere opined that any injury was caused to Karam Kaur endangering her life. This opinion of doctor who conducted post-mortem of Karam Kaur is also missing that blood on both sides of the heart of Karam Kaur was found due to the injuries caused to her heart by fist blows. He has not opined that death of Karam Kaur was caused due to the causing of any injury endangering her life. While appearing as PW2 complainant Nirmal Singh has stated that appellant Joginder Kaur and her son Jasbir Singh gave fist blows to Karam Kaur. PW6 Ravinder Kaur has stated that the accused gave fist blows on the chest of Karam Kaur. The doctor has not described any rupture injury on the heart. In case of Madan Lal Vs. State of H.P. (1989)2 Crimes 373 (376), it was observed as under:-
"As a result of general principle, the Court is likely to consider as dangerous to life in a legal sense only those wounds in which the danger is imminent. The law appears to contemplate the more immediate rather than the more remote possible dangers."
The injury 'dangerous to life' has been described in Modi on Mehta Sachin 2014.05.01 17:36 I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -9- Medical Jurisprudence and Toxicology 21st Edition (page 275) which reads as follows:-
"Such injuries are extensive, and implicate important structures or organs, so that they may prove fatal in the absence of surgical aid. For instance, a compound fracture of the skull, a wound of a large artry, or rupture of some internal organ, such as the spleen, should be considered 'dangerous to life'. There is a fine distinction in the degree of body injury between 'dangerous to life' and 'likely to cause death'. Another type of bodily injury which is sufficient in the ordinary course of nature to cause death has also to be recognized. But the injuries which prove fatal remotely by intercurrent diseases, such as tetanus, erypsipelas, etc., should not be considered as dangerous."
The injuries of serious nature like hemorrhage, shock involving vital organs, multiple fractures, extensive burns etc. are some of the injuries which cause imminent danger to human life and fall in the category of injuries endangering life. Section 320 (Eightly) puts any hurt which endanger life in the category of grievous hurt. The mere fact that some blood on both sides of heart was found during postmortem examination of Karam Kaur, is not sufficient to draw an inference that she had suffered grievous injury endangering her life, particularly when there is no opinion in this regard and no rupture of heart was noticed by the doctor or find mention in the postmortem report.
In view of the above, the injury caused to Karam Kaur falls into the category of simple injury constituting the offence punishable under Section 323 IPC.
In view of the discussion above, the conviction of appellant Mehta Sachin 2014.05.01 17:36 I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -10- Joginder Kaur is modified from Section 325 IPC to Section 323 IPC, so far as the second occurrence is concerned.
As a net result of the above discussion, the conviction of appellant Joginder Kaur, for the offences punishable under Section 326 read with Section 34 IPC and 323 IPC, is maintained. However, her conviction under Section 325 IPC is modified to Section 323 IPC.
Learned counsel for the appellant has argued that appellant Joginder Kaur has faced the agony of trial and her conviction for the last more than 14 years. She is more than 55 years of age by now. During the pendency of the appeal, she has lost her son. The main accused who caused grievous injury to Didar Singh has since died. Appellant has already undergone imprisonment for a period of three months during the pendency of the trial. He has further argued that the appellant is willing to compensate Didar Singh for the injuries caused to him. Appellant is not a previous convict and no purpose will be served by sending her to jail at this old age. He has requested that the sentence awarded to the appellant may be converted to the sentence already undergone by her or she may be released on probation.
Keeping in view above facts and request of learned counsel for the appellant that the appellant is ready to compensate injured Didar Singh for the injury suffered by him, this appeal is disposed of by modifying the sentence awarded to appellant Joginder Kaur to the period already undergone by her subject to her paying a sum of `1,00,000 to injured/victim Didar Singh. This amount of compensation shall be deposited within a period of four weeks before the trial Court,failing which she shall undergo the sentence as follows:- Mehta Sachin 2014.05.01 17:36 I attest to the accuracy and integrity of this document CHANDIGARH CRA-S-1351-SB of 2003 -11-
Convicted for the offence punishable Rigorous Imprisonment under Section 326 read with Section 34 IPC One year 323 IPC One year Copy of judgment be sent to the trial Court and Chief Judicial Magistrate, Jalandhar. In the event of non-deposit of amount of `1,00,000 the trial Court after expiry of four weeks shall intimate the Chief Judicial Magistrate, Jalandhar, who will initiate steps to take the appellant into custody and send her to jail to undergo the remaining part of her sentence. On deposit of amount of `1,00,000 the trial Court will pay the same to victim Didar Singh.
( SURINDER GUPTA ) April 25, 2014. JUDGE Sachin M. Mehta Sachin 2014.05.01 17:36 I attest to the accuracy and integrity of this document CHANDIGARH