Punjab-Haryana High Court
Malkiat Singh & Others vs State Of Haryana on 11 September, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Appeal No.S-337-SB of 2001 {1}
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.S-337-SB of 2001
Date of Decision: 11th September,2013
Malkiat Singh & Others
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Aftab Singh, Advocate,
for the appellants.
Mr.Chetan Sharma, AAG, Haryana.
***
Naresh Kumar Sanghi, J.
Challenge in this appeal is to the judgment of conviction and the order of sentence dated 22.01.2001 whereby each appellant was held guilty for the offences punishable under Sections 324, 325 and 436 read with Section 34, IPC, and ordered to undergo the following sentences:-
Offences Sentences (In Fine (in ` ) In default of R.I) payment of fine (in S.I) 324 read with Six months -- --
Section 34, IPC 325 read with Two years -- --
Section 24, IPC 436 read with Four years 1000/- 15 days Section 34, IPC All the substantive sentences were ordered to run concurrently.
During pendency of the present appeal, Malkiat Singh (appellant No.1) has expired, therefore, the present appeal has abatted so far as Malkiat Singh (appellant No.1) is concerned.
Succinctly the facts of the case are that on 14.02.1989, a Sharma Seema 2013.09.24 14:56 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-337-SB of 2001 {2} telephonic message was received in the Police Station, City, Sirsa, through Harjit Singh (PW-4) that some miscreants had set the house of Gurjeet Kaur @ Gurdebo (PW-2) on fire. On receipt of the said information, Sub Inspector Atma Nand (PW-11) along with police officials in a official jeep reached the place of occurrence. The Fire Brigade had also arrived and extinguished the fire. The complainant, Gurjeet Kaur @ Gurdebo (PW-2), suffered statement (Ex.PD) to the police wherein it was alleged that she along with her children was residing in her house near Bajigar Mohalla, Sirsa. Her father, Roop Singh, was also residing in the adjoining house. About 3-4 months prior to the date of incident, the police had recovered opium from the residence of Malkiat Singh (appellant No.1 since deceased) and his wife Nasib Kaur. At the time of recovery of the said opium, the complainant, Gurjeet Kaur @ Gurdebo (PW-2) was accompanying the police party and had witnessed the recovery of said opium. The police party had also recovered the poppy husk from several persons of Bajigar Basti as they were frequently dealing in it. All the Bajigars residents of Mohalla near Rania Chungi and Bajigar Basti, had suspicion that secret information was passed on to the police by the complainant, Gurjeet Kaur @ Gurdebo (PW2), and her father, therefore, Bajigars were nourishing a grudge against complainant. On 04.02.1998, Roop Ram, father of the complainant, Gurjeet Kaur @ Gurdebo, had a dispute with Hasan Ram in which both the parties had sustained injuries and cross cases were registered. The Court of Session at Sirsa had stayed the arrest of the father of the complainant Gurjeet Kaur @ Gurdebo till 18.02.1998. On 14.02.1998 at about 10.30/11.00 p.m., Gurjeet Kaur @ Gurdebo (PW2) along with her son Jagtar Singh (PW3), Satpal, Kuldeep, Moman, Paramjit Kaur and Tikka Singh (PW9) was sleeping in her house. After hearing the noise from the roof, she woke up and saw that some Criminal Appeal No.S-337-SB of 2001 {3} material from celling had fallen on the ground. She raised a loud noise and came out of her house along with her family members and Tikka Singh (PW9). Gurjeet Kaur @ Gurdebo (PW2) saw that Malkiat Singh (appellant No.1), Wazir Singh son of Gulla Ram, Bhola Singh son of Pritam Singh, Binder s/o Titru Ram, Bheera Singh son of Kala Singh, Tota Ram son of Kalu, Sucha Singh son of Mahinder Singh, Jagsir Ram and Baba Ram sons of Charan Dass, Babu Ram son of Singara Ram, Bheera relative of Babu Ram, Balla Ram and Kala Ram were demolishing the roof of her house. Siba wife of Malkiat, Beeba Bai d/o Kala Singh, Ladi Bai d/o Shingara, Seeto Bai d/o Kala Ram, Jeeto Devi w/o Bansa Ram all residents of Mohalla Bajigar were standing outside her house and were shouting that they be taught a lesson for passing on information to the police against them (accused). In the meantime, Bhola Singh (appellant No.2) sprinkled petrol on the roof of the house of the complainant and set the same on fire. The petrol was also sprinkled in both the rooms of her house. On hearing the noises, Smt.Sadda (not examined), Harjit Singh (PW4) and several other persons reached on the spot. The complainant asked them to report the matter to the police as well as to the Fire Brigade. Thereafter, the accused attacked the residence of her brother-in-law, Bachan Singh, where her sister, Surjit Kaur (PW5), was caused severe injuries. As a result of fire, seven cots, seven quilts, matresses, two decks, television, two fans, one cooler, one box, three brief cases of the clothes and ` 2,000/- in cash were burnt and as such, she suffered loss to the tune of ` 90,000/-. The memo containing statement of Gurjeet Kaur @ Gurdebo (PW2) was sent to the police station on the basis of which, Inspector Raghbir Singh (PW8) recorded the formal FIR (Ex.PD/1). The special report was sent to the higher officiers through Constable Mani Ram. Sub Inspector Atma Nand (PW11) prepared the rough site plan Criminal Appeal No.S-337-SB of 2001 {4} (Ex.PL) of the place of occurrence; recorded the statements of the witnesses and completed the formalities of the investigation. Injured-Surjit Kaur (PW5) was medico legally and radiologically examined by Dr.Viresh Bhushan (PW1). Head Constable Dharam Pal (PW6) clicked the photographs of the place of occurrence. The scaled site plan (Ex.PH) was got prepared from Inderjit Singh Bhalla (PW7). The accused were arrested on different dates and after completion of the investigation, the charge- sheet (report under Section 173, Cr.P.C.) was presented by Inspector Sube Singh.
Since the offence punishable under Section 436, IPC, was triable by the Court of Session, the case was committed to the said court by the learned Area Judicial Magistrate. Initially, 13 persons were charge- sheeted for the offences punishable under Sections 148, 324, 325, 436 and 506 read with Section 149, IPC. After recording the statement of few witnesses, an application under Section 319, Cr.P.C was presented on the basis of which, Ladi Bhai and Beeba Bhai, were summoned as additional accused to face trial along with the principal accused and the charges were once again framed vide order dated 27.09.2000 against 15 persons for the offences punishable under Sections 148, 324, 325, 436 and 506 read with Section 149, IPC, to which the appellants and their co-accused pleaded not guilty and claimed trial.
In order to substantiate it allegation, the prosecution examined the following witnesses:-
PW-1 Dr.Viresh Bhushan: On 14.02.1998 at 12.30 a.m., he had medico legally examined Surjit Kaur (PW5) and found five injuries on her person. Injury No.1 was on the left frontal region of her scalp which was caused by sharp edged weapon. The rest of the injuries were by blunt weapons. After Criminal Appeal No.S-337-SB of 2001 {5} X-ray examination, injury No.2 on the middle finger of the left hand of Surjit Kaur (PW5) was declared grievous and rest of the four injuries were simple in nature. PW-2 Gurjeet Kaur: She is the complainant and had reiterated the facts as she disclosed to the police in her statement (Ex.PD).
PW-3 Jagtar Singh: He is son of Gurjeet Kaur (PW2). He is eye-witness of the occurrence and had supported the prosecution case.
PW-4 Harjit Singh: He is yet another eye-witness of the occurrence and had informed the police as well as the Fire Brigade on telephone. However, he did not support the prosecution case, therefore, he was delcared hostile and the learned trial court permitted the learned Public Prosector to cross-examine him. In the cross-examination, nothing material in favour of the prosecution could be elicited from his mouth.
PW-5 Surjit Kaur: She is the sister of Gurjeet Kaur (PW2). She was residing in a separate house at a little distance from the house of Gurjeet Kaur (PW2). She deposed that 02 years, 09 months prior to 13.11.2000, she along with her mother-in-
law Inde Kaur (PW12) was sleeping inside her house. Bhola Singh (appellant No.2) inflicted a datar blow on her forehead; Jagir Singh (appellant No.4) caused a lathi blow on her right hand while Jagsir (appellant No.3) and Binder pulled her out of her house. Thereafter, Sucha Singh, Mahindo wife of Mohana, Jagir Singh and Bhola caused her injuries. The appellants and their co-accused took away ear-rings, nose Criminal Appeal No.S-337-SB of 2001 {6} pin, deck, television, household luggage and even damaged the utensils. The owner of the saw mill and her husband arrived there and took her to the Civil Hospital, Sirsa, and got her admitted there. Surjit s/o Bhana and Pehalwan s/o Kesar were amongst the assailants who caused her (Surjit Kaur) injuries.
PW-6 Head Constable Dharam Pal: He clicked the photographs, Ex.P1 to Ex.P-10, of the place of occurrence. PW-7 Inderjit Singh Bhalla: He had prepared the scaled site plans (Ex.PH and Ex.PJ) with correct marginal notes on the pointing out of prosecution witnesses Inde Kaur (PW12) and Gurjeet Kaur (PW2).
PW-8 Inspector Raghbir Singh: He had recorded the formal FIR (Ex.PD/1) on the basis of the memo (Ex.PD). He also sent the special report to the higher officers through Constable Mani Ram.
PW-9 Tikka Jugraj Singh @ Baba Jugraj Singh: He is an eye-witness. He deposed that about 2-3/4 years ago, he was present in the house of Gurjeet Kaur in connection with some bail matter. On the day of incidence at about 10.00 p.m., he was sleeping in the room situated on the western side, whereas Gurjeet Kaur (PW2) along with her family members was sleeping in the other room. Gurjeet Kaur (PW2) raised a loud noise that some persons had come and damaging the roof of her house. When they came out, the accused present in the Court started throwing brick-bats on them. About 18/19 persons were present on the roof. He knew only Malkiat Singh (appellant No.1), Nasib Kaur and Bhola Singh. Though Criminal Appeal No.S-337-SB of 2001 {7} he identified the accused present in the Court but could not tell their individual names. Nasib Kaur was not present in the Court. Bhola had poured petrol and set the house of Gurjeet Kaur (PW2) on fire.
PW-10 Ashok Kumar, Leading Fireman: He deposed that on 13.02.1998 at 23.45 hours, a telephonic message was received in their office regarding the fire in a house in the back side of Rania Chungi, Sirsa. He along with Jagdish Kumar, Driver, and Kuldeep Singh, Fireman, reached the spot and extinguished the fire. He produced the original register and the entry recorded at Page No.14 in diary No.66 dated 14.02.1998. Photostat copy of the same was marked as Ex.PK.
PW-11 Sub Inspector Atma Nand: He had investigated the matter.
PW-12 Inde Kaur: She is the mother-in-law of Surjit Kaur (PW5). She had witnessed the occurrence which took place at the house of Surjit Kaur (PW5) with regard to causing her injuries by the appellants and their co-accused.
After completion of the prosecution evidence, the statements of the appellants and their co-accused were recorded in terms of Section 313, Cr.P.C. All the incriminating evidence appearing against them was put to them and all the appellants denied the incriminating evidence appearing against them and stated that they had falsely been implicated in this case.
No evidence in defence was led.
After hearing the learned counsel for the parties, the learned trial court held the appellants guilty and sentenced each one of them in the manner as has been described in the initial part of the judgment.
Criminal Appeal No.S-337-SB of 2001 {8} Learned counsel for the appellants submits that the name of Jagsir son of Pannu @ Puran did not figure in the FIR or in the deposition of Gurjeet Kaur (PW2), Jagtar Singh (PW3), Harjit Singh (PW4) and Tikka Jugraj Singh @ Baba Jugraj Singh (PW9) who had allegedly witnessed the occurrence which occured at the house of Gurjeet Kaur (PW2). He further submits that there was no common object or common intention on the part of appellant No.3 (Jagsir) regarding setting the house of Gurjeet Kaur (PW2) on fire. He also submits that concededly, Jagsir (appellant No.3) had not caused any injury to Surjit Kaur (PW5), therefore, he even could not be convicted and sentenced for the offences punishable under Sections 324 read with Section 149, and 325 read with Section 34, IPC since the prosecution has miserably failed to prove the common intention on his part with the assailants who had caused simple and grievous injuries on the person of Surjit Singh (PW5).
He further submits that Jagtar Singh (PW3) had admitted in his deposition that there was political rivalry amongst the prosecution witnesses and the appellants, therefore, the appellants were falsely implicated. He further submits that the statements of the prosecution witnesses were contradictory to each other. Jagtar Singh (PW3) even did not clarify as to whether his statement was recorded at the spot or at the police station. It has also been contended that Jagtar Singh (PW3) did admit in his deposition that there was no adjoining house to their house while the documents available on record falsify the said deposition. He further submits that Binder (accused) was acquitted by the learned trial court while the same role was assigned to Jagsir (appellant No.3), therefore, he should have also been extended the same benefit. He also submits that in case the appeal is not accepted and appellants are not acquitted, in that eventuality, the appellants being first offenders be Criminal Appeal No.S-337-SB of 2001 {9} ordered to be released on probation.
Learned counsel for the State contends that the minor contradictions were bound to occur when the witnesses had stepped into the witness box after a long lapse of time. He further submits that the spontaneous FIR and medico legal examination of Surjit Kaur (PW5) rule out the possibilities of embellishment etc in the present case. However, he fairly concedes that the name of Jagsir (appellant No.3) was not mentioned in the FIR of the present case and even PW2, PW3, PW4 and PW9 who had witnessed the occurrence which occured at the house of Gurjeet Kaur (PW2) had not deposed about the participation of Jagsir (appellant No.3) in the said incident.
Learned counsel for the State further submits that learned trial Court, after scanning the material and the deposition of the prosecution witnesses, had rightly held the appellants guilty for the offences punishable under Sections 436, 325, 324 read with Section 34, IPC, and suitable sentence was awarded, therefore, no interference is called for by this Court.
I have heard the learned counsel for the parties and with their able assistance gone through the material available on record.
The undisputed facts are as under:-
(i) the charge-sheet was filed against 13 persons by the Investigating Agency;
(ii) Ladi Bhai and Beebo Bhai were summoned to face trial on an application under Section 319, Cr.P.C.;
(iii) the incident of fire had taken place at the house of Gurjeet Kaur (PW2) while the incident of beating had occured at the house of Surjeet Kaur (PW5) which is at a little distance from the house of Gurjeet Kaur (PW2);
Criminal Appeal No.S-337-SB of 2001 {10}
(iv) the prosecution witnesses Gurjeet Kaur, Jagtar Singh, Harjit Singh, and Tikka Jugraj Singh @ Baba Jugraj Singh had not named Jagsir in the alleged occurrence of fire at the house of Gurjeet Kaur.
(v) Out of 15 persons, 11 accused were acquitted of all the charges punishable under Sections 148, 436 read with Section 149, 325 read with Section 149, 324 read with Section 149 and 506 read with Section 149, IPC, while the appellants including Malkiat Singh (appellant No.1 deceased) were also acquitted of the charges under Sections 148 and 506 read with Section 149, IPC. However, they were convicted for the offences punishable under Sections 324, 325, 436 read with Section 34 IPC.
At present there are three appellants before this Court, namely, Bhola Singh son of Pritam, Jagsir son of Punnu @ Puran and Jagir Singh son of Sohan Singh. It is apposite to mention that Malkiat Singh (appellant No.1) had died during the pendency of the present appeal, therefore, the appeal qua him has already abatted.
So far as appellant Jagsir is concerned, there is not an iota of evidence that he had common intention or common object with his co- accused for setting the house of Gurjeet Kaur (PW2) on fire. His name even did not find mention in the FIR. Gurjeet Kaur(PW2), Jagtar Singh (PW3), Harjit Singh (PW4) and Tikka Jugraj Singh @ Baba Jugraj Singh (PW9) were very categoric in their depositions that Bhola Singh (appellant No.2) had poured petrol at the roof of the house of Gurjeet Kaur (PW2) and set the same on fire. Even the presence of Jagsir was not alleged at or near the house of Gurjeet Kaur (PW3), therefore, the conviction and sentence of Jagsir (appellant No.3) for the offence punishable under Criminal Appeal No.S-337-SB of 2001 {11} Section 436 read with Section 34, IPC, is not sustainable and is set aside. He is acquitted of the charge under Section 436 read with Section 34, IPC.
So far as Bhola Singh (appellant No.2) is concerned, it is consistent case of the prosecution that he along with his co-accused not only damanged the roof of the house of Gurjeet Kaur (PW2) but sprinkled petrol over there and set the same on fire as a result thereof, the various articles worth ` 90,000/- were damaged. The deposition of the witnesses to that extent was corroborated from the statement of Ashok Kumar (PW10), a fireman, who along with his colleagues reached the spot and extinguished the fire, therefore, the conviction of Bhola Singh (appellant No.2) for the offence punishable under Section 436 read with Section 34, IPC, is well-based and no interference is called for to that extent.
So far as Jagir Singh (appellant No.4) is concerned, his name does find mention in the FIR. Gurjeet Kaur (PW2) and Jagtar Singh (PW3) did depose before the learned trial court that Jagir Singh had actively participated in the incident of causing damage to the roof and setting the house of Gurjeet Kaur (PW2) on fire, therefore, his conviction for the offence punishable under Section 436 read with Section 34, IPC, is also well-based and no interference is called for to that extent.
Surjeet Kaur (PW5) was very categoric in her deposition that Bhola Singh (appellant No.2), Jagsir and Jagir Singh went to her house and Bhola Singh (appellant No.2) by means of datar while Jagsir (appellant No.3) by means of lathi caused her injuries as a result thereof, she received incised wound on the front portion of her scalp and a fracture on middle finger of left hand and thereafter, Jagsir (appellant No.3) and Binder Singh (since acquitted) dragged Surjit Kaur out of her house. The statement of Surjit Kaur (PW5) is corroborated by her mother-in-law Inde Kaur (PW12) who was also present in the house at that time. The Criminal Appeal No.S-337-SB of 2001 {12} depositions of Surjit Kaur (PW5) and Inde Kaur (PW12) were further fortified from the deposition of Dr.Viresh Bhushan (PW1) who had medico legally examined Surjit Kaur and found five injuries on her person out of which, injury No.2 was declared to be grievous, therefore, the conviction of the appellants Bhola Singh, Jagsir and Jagir Singh for the offences punishable under Sections 324 read with Section 34 and 325 read with Section 34, IPC, is well-based.
The argument raised by learned counsel for the appellants that similar situate co-accused of the appellants have already been acquitted, therefore, the same benefit should be extended to the appellants is not sustainable. It is the prime duty of the Court to separate grain from the chaff and the learned trial court has rightly distinguished the role assigned to each accused. The dictum falsus in uno falsus omnibus is not applicable to the criminal litigation in India. On appreciation of the evidence, if the Court is able to find out the different role assigned to each accused, in such circumstances, the persons who have committed the offence can be held guilty for respective offences.
However, the arguments raised that the appellants are first offenders, therefore, they be released on probation, is liable to be rejected in view of the severity of the offences committed by the appellants. Bhola Singh (appellant No.2) has been held guilty for the offence punishable under Section 436 read with Section 34, IPC, and the said offence is punishable upto imprisonment for life, therefore, the provisions of the Probation of Offenders Act or Section 360, Cr.P.C., are not applicable to him. However, keeping in view the fact that the occurrence had taken place in the year 1998 and during trial and pendency of the present appeal, the appellants remained on bail and no untoward incident had taken place, therefore, some concession can be extended to them in the Criminal Appeal No.S-337-SB of 2001 {13} substantive sentence awarded to each one of them.
Accordingly, the order of sentence passed by learned trial court is modified and appellant Nos. 2, 3 and 4 are ordered to undergo the following sentences:-
Bhola Singh Offences Sentence (in Fine (in `) In default (in (appellant RI) R.I.) No.2) 324,IPC Six months -- --
325 read with One year 10,000/- Four months Section 34, IPC 436 read with Three years 50,000/- Nine months Section 34, IPC Jagsir 324 read with Six months -- --
(appellant Section 34,
No.3) IPC
325 read with One year 10,000/- Four months
Section 34,
IPC
Jagir Singh 324,IPC Six months -- --
(appellant
No.4) 325 read with One year 10,000/- Four months
Section 34,
IPC
436 read with Two years 20,000/- Six months
Section 34,
IPC
All the substantive sentences shall run concurrently.
Out of the amount of fine imposed by this Court, if realised, ` 70,000/- shall be paid to Gurjeet Kaur (PW2) and ` 30,000/- to Surjit Kaur (PW5) as compensation. After realization of the amount of fine, the learned trial court shall issue notices to Gurjeet Kaur (PW2) and Surjit Kaur (PW5) for moving an application for withdrawal of the amount of compensation as ordered by this Court.
In above terms, the appeal is partly allowed.
September 11, 2013 (Naresh Kumar Sanghi) seema Judge