Punjab-Haryana High Court
Shingara Singh And Others vs State Of Punjab on 7 October, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-1820-SB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1820-SB of 2002
Date of decision: 7.10.2010
Shingara Singh and others
........ Appellants
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. H.R. Nohria, Advocate for appellants No.1 and 4.
Mr. Satinder Singh Randhawa, Advocate,
for appellants No.2 and 3.
Mr. Arshvinder Singh, Deputy Advocate General, Punjab.
JORA SINGH, J.
Shingara Singh, Pal Singh, Ram Singh and Jagga Singh, preferred this appeal to challenge the judgment of conviction dated 28.10.2002 and order of sentence dated 31.10.2002, passed by the learned Additional Sessions Judge, Barnala, in Sessions Case No.13 of 21.2.2000, arising out of FIR No. 203 dated 31.7.1999, registered under Sections 323/324/325/380/427/460 read with Section 34 of the Indian Penal Code at Police Station, Barnala.
By the said judgment, they were convicted under Sections323/324/325/460/34 IPC and were sentenced as under:
1. Jagga Singh under Section 325 IPC RI for three years and fine Rs.500/- in default to undergo further RI for one month.CRA-S-1820-SB of 2002 -2-
Jagga Singh, under Section 323/34 IPC RI for six months and fine of Rs.100/- in default to undergo further RI for one month.
Jagga Singh, under Section 324/34 IPC RI for one and a half years and fine Rs.500/- in default to undergo further RI for one month.
Jagga Singh, under Section 460 IPC RI for seven years and fine Rs.1000/- in default to undergo further RI for one month.
2. Shingara Singh under Section 324 IPC RI for two years and fine Rs.100/- in default to undergo further RI for one month.
Shingara Singh, under Section 325/34 IPC RI for two and a half years and fine of Rs.500/- in default to undergo further RI for one month.
Singhara Singh, under Section 323/34 IPC RI for six months and fine Rs.100/- in default to undergo further RI for one month.
Shingara Singh, under Section 460 IPC RI for seven years and fine Rs.1000/- in default to undergo further RI for one month.
3. Ram Singh and Pal Singh under Section 324/34 IPC RI for one and a half years each and fine of Rs.100/- each, in default to undergo further RI for one month each.
CRA-S-1820-SB of 2002 -3-Ram Singh and Pal Singh under Section 323/34 IPC RI for six months each and fine of Rs.100/- each in default to undergo further RI for one month each. Ram Singh and Pal Singh under Section 325/34 IPC RI for two and a half years each and fine Rs.500/- each in default to undergo further RI for one month each.
Ram Singh and Pal Singh under Section 460 IPC RI for seven years each and fine Rs.1000/- each in default to undergo further RI for one month each. All the substantive sentences were ordered to run concurrently.
Prosecution story, in brief, is that Maghar Singh- complainant was the resident of village Handiaya. His daughter Paramjit Kaur was married with Surjit Singh R/o Kothe Ramsar about 7/8 years before the present occurrence. Paramjit Kaur and Surjit Singh, on 29.7.1999 at about 5.00 a.m. had gone to Naina Devi. They were also to go to Chandigarh, in respect of dispute of their land. On 30.7.1999, at about 7.00 p.m. Maghar Singh came to the house of Paramjit Kaur in the area of village Kothe Ramsar to look after her buffaloes. He bolted the main gate from inside and was lying in the courtyard. Shingara Singh uncle of Surjit Singh and Jagga Singh were standing at the roof of the house of Shingara Singh. They were seeing towards the courtyard of Paramjit Kaur. They came down from the roof and after 10 minutes Shingara Singh, armed with Kirpan, Jagga Singh, armed with rod, Pal Singh and Ram Singh armed with dangs, came to the house of Paramjit Kaur from the backside where the wall of her CRA-S-1820-SB of 2002 -4- house had already fallen. After entering into the house of Paramjit Kaur, Shingara Singh, opened the main gate from inside. In the meanwhile, wife of Maghar Singh brought his food from his house. Jagga Singh, raised a lalkara that legs of Maghar Singh, a notorious Jat, be broken. Jagga Singh, gave a rod blow hitting the elbow of left arm of Maghar Singh. Shingara Singh, gave a Kirpan blow hitting the wrist of the left arm of Maghar Singh, Pal Singh, gave a dang blow hitting the left shoulder of Maghar Singh. Ram Singh gave a dang blow hitting the thigh of Maghar Singh. Jagga Singh gave another rod blow hitting the left hand of Maghar Singh. Third rod blow given by Jagga Singh, was at the left side of the chest of Maghar Singh. Pal Singh gave another dang blow hitting the left leg of Maghar Singh. Maghar Singh and his wife Mukhtiar Kaur, raised raula then accused had fled away from the spot with their respective weapons. Motive to cause injuries was that Paramjit Kaur was having land dispute with Bibo mother of Jagga Singh. Shingara Singh was helping Bibo. Jaswinder Singh @ Manti R/o Dhillwan used to come at the house of Shingara Singh and Jagga Singh and used to say that they would take forcible possession of the land of Paramjit Kaur and her family members shall be uprooted. Due to this reason injuries were caused. Maghar Singh was shifted to Civil Hospital, Barnala, by Mohinder Singh. Ruqa was sent to the police station and on receipt of ruqa police had gone to Civil Hospital, Barnala. After getting opinion from the doctor regarding fitness of the injured to make statement, statement of Maghar Singh Ex. PA was recorded by SI Piara Singh. After making endorsement Ex. PA/1, statement was sent to the police station on the basis of which CRA-S-1820-SB of 2002 -5- formal FIR Ex. PA/2 was recorded. Two sealed parcels containing the samples of blood and urine of Maghar Singh were handed over to SI Piara Singh and the same were taken into police possession vide recovery memo Ex. PC attested by the witnesses. Maghar Singh, also produced one shirt and one pyjama stained in blood and the same were made into sealed parcel and the parcel was taken into police possessions vide recovery memo Ex. PB attested by the witnesses. SI Piara Singh alongwith the police party had gone to the place of occurrence. After inspecting the site rough site plan with correct marginal notes was prepared. During investigation police came to know that accused had stolen 50 maunds of wheat, two cots of pipe, one motor of cooler, one bucket of steel, one parat, three quilts, four dairies, four bed sheets and four khes of Maghar Singh.
On 10.8.1999, Chhota Singh, produced Shingara Singh, Jagga Singh, Ram Singh and Pal Singh accused in Police Station Kotwali, Barnala. Shingara Singh, had produced Kirpan and the same was taken into police possession vide recovery memo Ex. PK attested by the witnesses. Jagga Singh, produced one iron rod and the same was taken into police possession vide recovery memo Ex. PL attested by the witnesses. After completion of investigation, challan was presented in the Court.
Accused were charge-sheeted under Sections 323/324/325/427/380/460 read with Section 34 IPC, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
CRA-S-1820-SB of 2002 -6-
PW-1 Maghar Singh-complainant has reiterated his stand before the police.
PW-2 Mukhtiar Kaur, has supported the version of Maghar Singh-injured.
PW-3 HC Manjit Singh, had collected two sealed parcels from the doctor and copy of the MLR and the same were handed over to SI Piara Singh.
PW-4 Dr. Subhash Singla, on 30.7.1999, had medico- legally examined Maghar Singh and found the following injuries on his person:
1. Reddish contusion, 11 cm. X 0.2 cm present on the dorsal surface left forearm-6 cm above the left wrist joint. Swelling and tenderness was present all around. Advised X-ray.
2. Lacerated wound 2 cm x 0.2 cm present on the palmer surface of left hand opposite the index and middle finger space, was bone deep.
Fresh bleeding, swelling and tenderness was present all around. Complaint of pain in the left hand. Advised X-ray.
3. Incised wound 2 cm x 0.2 cm was present on the medial side of dorsum of left wrist joint. It was soft tissue deep. Fresh bleeding was present. X-ray was advised.
4. Lacerated wound 1 cm x 0.5 cm present on the anterior surface of left upper arm, 5 cm above CRA-S-1820-SB of 2002 -7- the left elbow joint. Fresh bleeding was present. Swelling and tenderness was present. It was bone deep and X-ray was advised.
5. Abrasion, reddish in colour, 3.5 cm x 0.2 cm present on the anterior surface of left leg, 14 cm below the left kee joint.
6. Reddish abrasion 1 cm x 0.5 cm present on the anterior surface of left thigh 12.5 cms above the left knee joint.
7. Reddish contusion, 11 cm x 0.3 cm present on the right side of neck, just above the clavicle extending to the upper part of right side of chest. Swelling and tenderness was present.
X-ray was advised.
Injuries No.1 to 4 and 7 were kept for X-ray examination. Injuries No.5 and 6 were declared simple in nature. Kind of weapon used for injury No.3 was sharp and for other injuries was blunt. Injury No.1 was declared grievous in nature. Other injuries were found to be simple in nature.
PW-5 Dr. Surinder Kumar Garg, had X-rayed the injuries on the person of Maghar Singh. In case of Injury No.1, fracture of shaft of radius and ulna bones was noticed.
PW-6 Jit Singh, had taken the photographs and the same are Ex. P-7 to Ex. P-13 and their negatives are Ex. P-14 to Ex. P-20.
PW-7 Inspector Piara Singh, was the Investigating Officer. CRA-S-1820-SB of 2002 -8- PW-8 HC Ajaib Singh and PW-9 Constable Harbans Singh, had tendered their affidavits Ex. PT and Ex. PV, respectively.
After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded wherein they denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that there is no house in village Kothe Ramsar, Barnala, owned by Surjit Singh and Paramjit Kaur. The alleged house had already been sold to one Rachhpal Singh. Surjit Singh, had already sold his entire share of agricultural land to Rachhpal Singh. Surjit Singh and Paramjit Kaur had no concern with the alleged house. There was no boundary wall on the backside of the alleged house. The wall of the alleged house had already been demolished 4/5 years back. Maghar Singh was not present in the alleged house. He suffered injuries while falling on the brick bats, under the influence of liquor near his house at village Handiaya. Mehar Singh S/o Kartar Singh R/o village Rureke Khurd, brought him to his house at village Handiaya. False case was got registered due to civil suit pending against Paramjit Kaur. Paramjit Kaur, obtained a decree by playing fraud qua the land of Amarajit Singh @ Jit Singh brother of Surjit Singh, which was set aside by the Civil Court on 20.5.1999. Jagga Singh is the attorney of Amarjit Singh @ Jit Singh and he had appeared as a witness in the civil suit.
In defence DW-1 Rakesh Kumar, appeared and stated that Ex. D-1 dated 3.8.1998, original power of attorney was typed by him. Power of attorney was executed by Jit Singh in favour of Jagga Singh. Entry was made in the register.
CRA-S-1820-SB of 2002 -9-
DW-2 Hardeep Kumar, brought the summoned record and stated that Amarjit Singh had filed CMA No.8 of 12.7.1999, titled as 'Amarjit Singh Vs. Paramjit Kaur', pending for 3.8.2002 and suit No.110 dated 16.5.1998, titled as 'Amarjit Singh Vs. Paramjit Kaur' was decided on 20.5.1999.
DW-3 Rachhpal Singh, stated that Shingara Singh, appeared as witness on 4.5.1999, in Civil Suit No.110 dated 16.5.1998, titled as 'Amarjit Singh Vs. Paramjit Kaur'. Ex. D-2 is the certified copy of the statement.
DW-4 Mehar Singh stated that about two years and 7 to 8 months ago he came to Barnala to meet Kartar Singh. He was going back to his village at about 9.00 p.m. and was present near Gurdwara Sahib, on Handiaya road. Near Gurdwara Sahib, a person was lying by the side of the road. Bi-cycle was also lying on the road. After enquiry, Maghar Singh was found lying by the side of the road. He had made enquiry from Maghar Singh as to what had happened to him then Maghar Singh replied that a motor-cycle was struck against him and in that accident he received injuries.
DW-5 Kiran Jit Singh, stated that Ex. D-3 is the certified copy of DDR No.8 dated 16.11.1998, got recorded by Jagga Singh.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and after going through the record, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and have carefully gone through the evidence available on the file.
CRA-S-1820-SB of 2002 -10-
Learned defence counsel for appellants No.1 and 4 (Shingara Singh and Jagga Singh) argued that no offence punishable under Section 460 IPC is made out because backside wall of the house was lying demolished for the last number of years. Appellants had not taken precautions to conceal the house trespass from a person who has a right to exclude or eject to the trespasser from a building. Maghar Singh or Mukhtiar Kaur have not stated a word that appellants were taking precautions to conceal their alleged trespass. Argued that occurrence is dated 30.7.1999. Appellants are the first offenders. They have already undergone about 3½ months. Only one injury was found to be grievous in nature. At the time of present occurrence, Shingara Singh and Pal Singh were about 35/37 years old whereas Ram Singh and Jagga Singh were about 27/29 years old. After the present occurrence they have not committed any such act. Requested that appellants be directed to undergo imprisonment already undergone and they are ready to compensate the injured.
Learned defence counsel for appellants No.2 and 3 (Pal Singh and Ram Singh) argued that conduct of the witnesses shows that no occurrence had taken place. Story regarding theft was not found to be correct one by the trial Court. Presence of Mukhtiar Kaur, is doubtful. In case she was present at the spot then she could have made an effort to catch-hold the appellants to save Maghar Singh. Pal Singh and Ram Singh were present at the spot. No evidence on the file as to who was the owner of the place.
Learned State counsel argued that immediately after the occurrence injured was shifted to hospital. Intimation was given to the CRA-S-1820-SB of 2002 -11- concerned police station. After obtaining opinion from the doctor regarding fitness of the injured statement of Maghar Singh, was recorded by SI Piara Singh. Shingara Singh, Pal Singh, Ram Singh and Jagga Singh, came to the house of Surjit Singh. No suggestion to the witnesses that house was not of Surjit Singh. In case house was not owned by Surjit Singh then sale deed could easily be produced in defence. There was a civil litigation amongst the parties. Due to enmity injuries were caused. Injuries cannot be self-suffered to self-inflicted. Presence of Maghar Singh and his wife Mukhtiar Kaur in the house of their daughter Paramjit Kaur was natural.
First submission of the learned defence counsel for the appellants was that no offence punishable under Section 460 IPC was made out because there was no boundary wall on the back of the house. Secondly, the appellants were not taking the precautions from concealing the house tresspass. After going through the evidence on file, I am of the opinion that submission of learned defence counsel for the appellants seems to be reasonable one. According to the prosecution story, the house was owned by Surjit Singh and Paramjit Kaur. Paramjit Kaur, is the daughter of Maghar Singh-complainant. Paramjit Kaur and Surjit Singh had gone to Naina Devi. They were also to visit Chandigarh in connection with dispute of their land. Maghar Singh and his wife Mukhtiar Kaur, came to the house of Paramjit Kaur, to look after her buffaloes. Outer gate was bolted from inside. Maghar Singh and Mukhtiar Kaur, were lying in the courtyard of the house. There was no boundary wall on the backside. Maghar Singh and Mukhtiar Kaur, while appearing in the Court did not state a word that CRA-S-1820-SB of 2002 -12- appellants were taking precautions to conceal their alleged house trespass from any person. They have the right to exclude or eject them. After entering the house from backside main gate was opened from inside. Before the occurrence Shingara Singh and Jagga Singh were seen on the roof of the house of Shingara Singh. After sometime appellants fully armed came inside the house from the backside of the house of Paramjit Kaur. Shingara Singh, had opened the main gate then caused injuries. Section 460 IPC is reproduced as under:
"All persons jointly concerned in lurking house- trespass or house-breaking by night punishable where death or grievous hurt caused by one of them- If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
When the appellants had not taken precautions to conceal the house trespass from some person who has a right to exclude or eject the trespasser from a building which is the subject matter of house trespass then I am of the opinion that appellants are not liable for punishment under Section 460 IPC.
CRA-S-1820-SB of 2002 -13-
Next submission of learned defence counsel for appellants No.2 and 3 (Pal Singh and Ram Singh), is that presence of Mukhtiar Kaur at the time of occurrence is doubtful because Mukhtiar Kaur, did not try to save Maghar Singh. Story is also doubtful because allegation of theft of household articles was not found to be correct by the trial Court. No evidence on the file as to who was the owner of the place of occurrence. After going through the evidence on file, I am of the opinion that the submission of the learned defence counsel for appellants No.2 and 3 is without any force. Mukhtiar Kaur was 50 years old lady and was not carrying any weapon whereas the appellants were fully armed and had caused injuries to Maghar Singh. Mukhtiar Kaur, being old lady and when she was not armed then she was not in a position to save Maghar Singh. When injuries are being caused by the accused armed with deadly weapons then due to fear sometimes eye- witness fails to catch-hold the assailants. All depends upon the persons present at the spot how to react. In case Mukhtiar Kaur failed to catch- hold the appellants then her presence at the spot cannot be doubted. According to the evidence on file house was owned by Paramjit Kaur and Surjit Singh. Injured and the eye-witness came to the house of Paramjit Kaur to look after the buffaloes. No documentary proof from the side of the appellants that the house was purchased by somebody else. No allegation of the complainant that certain household articles were also stolen but during investigation, Investigating Officer came to know that 50 maunds of wheat and other articles were stolen. If trial Court failed to accept the version of prosecution regarding theft of certain articles then on this short ground prosecution story is not to be CRA-S-1820-SB of 2002 -14- ignored. When there was acquittal of accused under Sections 307/326 IPC then no reason to acquit the accused under Sections 323/324/325 IPC when story is very much clear that injuries were caused by the accused an noticed by the doctor at the time of medico-legal examination. If the Court is of the opinion that no offence under Section 460 IPC was made out and story of the prosecution regarding theft of household articles was not proved then the appellants cannot be acquitted under Sections 323/324/325 IPC.
Occurrence is 11 years old. Appellants are the first offenders. At the time of present occurrence, Shingara Singh and Pal Singh were about 35/37 years old whereas Ram Singh and Jagga Singh were about 27/29 years old. After the present occurrence they have not committed any such act. Appellants have already undergone about 3½ months. Ends of justice would be fully met if lenient view is taken.
Keeping in view the facts and circumstances of the case, appellants are directed to undergo imprisonment already undergone (3½ months each). Appellants are further directed to deposit Rs.10,000/- each as fine before the trial Court within two months, payable to the injured as compensation.
For the reasons recorded above, appeal without merits is dismissed with modification on the point of sentence.
October 7, 2010 ( JORA SINGH ) rishu JUDGE