Punjab-Haryana High Court
Parmodh Kumar vs State Of Punjab on 16 August, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-1243-SB of 1999 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-1243-SB of 1999
Date of decision: 16 .8.2010
Parmodh Kumar
........ Appellant
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. Daleep Singh, Advocate for the appellant.
Mr. Arshvinder Singh, Deputy Advocate General, Punjab.
JORA SINGH, J.
Parmodh Kumar, preferred this appeal to challenge the judgment of conviction and order of sentence dated 7.12.1999, rendered by the Additional Sessions Judge, Bathinda, arising out of FIR No. 213 dated 8.12.1991, registered under Section 307/34 of the Indian Penal Code, at Police Station Kotwali, Bathinda. By the said judgment the appellant was convicted under Section 307 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.2000/- and in default of payment of fine to further undergo Rigorous Imprisonment for six months.
Co-accused Jatinder Singh, was acquitted of the charges levelled against him. Against acquittal no appeal by the State.
Prosecution, story in brief, is that Malkiat Singh complainant on 8.12.1991, reported to ASI Ujaggar Singh, that he was serving as MHC in Police Station Raman and was on leave for two days and came to Bathinda. His house was at Bibiwala Road, Street No.13. He has CRA-S-1243-SB of 1999 -2- one son namely Dalbinder Singh about 17 years of age, 10+1 student of D.N. College Bathinda and one daughter. Dalbinder Singh, was getting tuition at Ajit Road, Bathinda. On 7.12.1991, Dalbinder Singh for getting tuition had gone to Ajit Road Bathinda. Malkiat Singh complainant alongwith ASI Ajaib Singh was going towards Ajit Road, Bathinda from the side of old bus-stand. When they had reached street No.6 on the Ajit Road and were near the Raman Electric Repair shop then Jatinder Singh was sighted. Jatinder Singh raised a Lalkara that Dalbinder Singh be not spared. Time was 4.30 p.m. Jatinder Singh had caught hold Dalbinder Singh. Then Parmodh Kumar brought 'Burmi' from his shop and gave blow in the stomach of Dalbinder Singh. Dalbinder Singh had raised raula. Dalbinder Singh had raised his hand to ward off the blow then received injuries on his fingers. After causing injuries accused had fled away from the spot. Motive to cause injury was that about three days earlier to the occurrence, there was some scuffle amongst Dalbinder Singh and Parmodh Kumar and Jatinder Singh accused. Dalbinder Singh was shifted to Civil Hospital, Bathinda where he was medico-legally examined. Intimation was given to the police. Application was moved to obtain opinion from the doctor regarding fitness of the injured to make statement. Dalbinder Singh, was declared unfit to make the statement. Then statement Ex. PW-3/A of Malkiat Singh was recorded on 8.12.1991. After making endorsement Ex. PW- 3/A2, the same was sent to the police station, on the basis of which formal FIR was registered by ASI Karam Singh.
Doctor had handed over the clothes worn by the injured and the same were made into a sealed parcel by the Investigating Officer sealed with seal bearing impression "USM". Sealed parcel was taken into possession vide memo Ex. PD attested by the witnesses. The Investigating Officer had gone to the place of occurrence and had lifted CRA-S-1243-SB of 1999 -3- the blood stained earth and simple earth and were made into different parcels. Both the parcels were sealed by him with seal bearing impression "USM" and the same were taken into possession vide memo Ex. PE attested by the witnesses. Statements of the witnesses were also recorded. On return to the police station, the case property was deposited with the incharge of the Malkhana. On 12.12.1991 accused Parmodh Kumar was arrested. While in police custody Parmodh Kumar was interrogated and in pursuance of his disclosure statement weapon of offence was got recovered from his shop. Sketch of weapon was prepared and the same was made into a sealed parcel by the Investigating Officer sealed with seal bearing impression "USM". Parcel was taken into possession vide memo PW-5/C attested by the witnesses. After completion of investigation challan was presented in the Court.
Accused was charge-sheeted under Sections 307/34 of the Indian Penal Code to which he pleaded not guilty and claimed trial.
In order to prove the charges prosecution examined PW-1 Dr. Naresh Kumar, who had medico-legally examined Dalbinder Singh on 7.12.1991 at 5.50 p.m. and found following injuries on his person:
"1. Incised wound/punctured wound measuring 1.75 x ½ cm present on the left side of abdomen, one and meeting the mid line horizontally placed 5 cm above the umbilicus.
Corresponding cut was present on the sweater, shirt and banyan. Bleeding was present. The shape of wound was like this.
2. Superficial abrasion 1 cm x ¼th on the palmer aspect of right ring finger middle phalanyx.
CRA-S-1243-SB of 1999 -4-
3. Superficial abrasion 1 x ¼th cm on the plamer aspect of the right middle finger proximal phalanyx."
Injury No.1 was found to be ante-mortem in nature. Kind of weapon used was sharp pointed edged weapon. Injury No.1 was declared dangerous to life as per operation notes.
PW-2 Yadwinder Singh, stated that he had brought the Bed Head Ticket of Dalbinder Singh including MLR.
PW-3 Head Constable Malkiat Singh, was the complainant/ eye-witness and supported the prosecution story by stating that the appellant had caused injuries to Dalbinder Singh.
PW-4 Dalbinder Singh (injured) also supported the prosecution story by saying that on 7.12.1991, he was present near Raman Electric Repair Works. Jatinder Singh was also present there. He raised lalkara and caught hold him. Then Parmodh Kumar gave injury with the 'Burmi'. PW-5 Constable Ajmer Singh, stated that on 7.12.1991, he was posted at Civil Lines, Bathinda. On 14.12.1991, joined the police party headed ASI Ujaggar Singh. As per the disclosure statement of accused Parmodh Kumar, weapon of offence was recovered from his shop. Sketch of the weapon was prepared and 'Burmi' was taken into possession vide memo Ex. PW-5/C attested by the witnesses.
PW-6 Constable Chanan Singh, stated that on 8.12.1991, he was with the police party headed by ASI Ujaggar Singh and in his presence doctor had produced the clothes worn by the injured. Clothes were made into a sealed parcel sealed with seal bearing impression "USM" and the sealed parcel was taken into possession vide memo Ex. PD attested by the witnesses. After that the police party had gone to the spot. The Investigating Officer, had lifted blood stained earth and CRA-S-1243-SB of 1999 -5- simple earth from the spot. The same were made into separate parcels. The parcels were sealed with seal bearing impression "USM". The parcels were taken into possession vide memo Ex. PE, attested by the witnesses. Statements of the witnesses was also recorded.
PW-7 ASI Ujaggar Singh, was the Investigating Officer. PW-8 Dr. S.K. Goyal, stated that on 7.12.1991, Dalbinder Singh was operated upon by him. He prepared the operation notes Ex. PW 8/A. The patient remained under his treatment and was discharged on 22.12.1991. On police request Ex. PW-8/B he gave operation report Ex. PW-8/C. After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. was recorded wherein the appellant had denied all the allegations of the prosecution and pleaded to be innocent. The defence version of the appellant was that Dalbinder Singh was teasing girls and was beaten by the fellow students.
Opportunity was given to led the defence evidence but no defence evidence was led.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and going through the record the appellant was convicted and sentenced, as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that occurrence is dated 7.12.1991, whereas the FIR is dated 8.12.1991. Complainant was serving in the Police Department and had the knowledge as to what was the effect of delay in lodging the FIR. No explanation was given why the delay in lodging the FIR. Weapon of offence was not shown to the doctor to state as to whether with the CRA-S-1243-SB of 1999 -6- weapon shown in the Court, the injuries noticed on the person of injured (Dalbinder Singh) were possible. Presence of eye-witnesses at the time of occurrence was doubtful. Complainant is the father of the injured and was serving as MHC in Police Station Raman but no document on the file to show that on the day of occurrence the complainant was on leave. Injured was medico-legally examined by Dr. Naresh Kumar, PW-1, but doctor had not declared any injury noticed on the person of injured as dangerous to life. One injury was declared dangerous to life as per the operation notes. Injured was operated upon by Dr. S.K. Goyal. But when Dr. S.K. Goyal, appeared as PW-8 then no question was put to him by the Additional Public Prosecutor for the State that as per operation notes any injury noted at the time of medico-legally examination was dangerous to life. Report of PW-1 Dr. Naresh Kumar, declaring one of the injury as dangerous to life is without any evidentiary value. No offence under Section 307 of the Indian Penal Code, is made out. At the most the appellant is liable for punishment under Section 326 of the Indian Penal Code.
Recovery of weapon is also doubtful. Appellant was arrested on 12.12.1991, whereas the weapon of offence was recovered on 14.12.1991. Weapon was got recovered by opening the lock with key. But the question is from where the key came in the hands of the appellant. When the accused is arrested then on his personal search article recovered are shown in the recovery memo. If on 12.12.1991, key was with the appellant then in the recovery memo the Investigating Officer, should have mentioned that key was recovered from the appellant. Story regarding recovery of weapon in pursuance of the disclosure statement of the accused seems to be not correct one. Learned counsel for the appellant lastly argued that the occurrence is dated 7.12.1991 and at that time appellant was 25 years old. The CRA-S-1243-SB of 1999 -7- appellant was a poor electrician. He has not committed any such offence after the present occurrence. Appellant has already undergone 3 months and 23 days out of the actual sentence awarded to him and requested to take a lenient view.
Learned State counsel argued that in view of the statements of the injured and eye-witnesses the appellant armed with 'Burmi' gave blow in the stomach of the injured. Injured was medico-legally examined by Dr. Naresh Kumar. As per operation notes injury No.1 on the person of Dalbinder Singh, was declared dangerous to life. Injury was in the stomach. Trial Court rightly opined that injury in the stomach with the help of a 'Burmi' was dangerous to life and was punishable under Section 307 of the Indian Penal Code. Before the present occurrence injured and the appellant had no enmity. Defence of the appellant was that the injured being student of 10+1 used to tease the girls and was given beatings by his colleagues but in defence there is not a single witness to state when injured teased a girl and when he was beaten by his colleagues. Whether the matter was reported to the Principal or police. No girl came forward to state that she was teased by the injured. The appellant was not the student. Appellant had no knowledge as to whether injured in the college had teased any girl or not. When the appellant had no enmity with the injured, then there was no idea of naming him. Delay in lodging the FIR was explained. After admission of the injured in the hospital, the complainant had gone to bring his wife from village Bhagjeri. Weapon was not before the doctor when he appeared in the Court and if the appellant was of the opinion that with the recovered weapon injury was not possible then a request should have been made to defer the cross-examination. No suggestion to the doctor that injury with a 'Burmi' was not possible. Weapon was recovered in pursuance of the disclosure statement but nothing on the CRA-S-1243-SB of 1999 -8- file that key was in the pocket of the appellant. Sometimes after locking the main gate, keys are kept secretly near the door. Minor discrepancies were pointed out in the statements of witnesses but the discrepancies are not fatal. When there was no enmity between the parties before the present occurrence then no reason to disbelieve the injured and eye-witness.
Ist contention of the learned defence counsel for the appellant was that there was a delay in lodging the FIR. Occurrence is dated 7.12.1991 but FIR is dated 8.12.1991. But after going through the file I am of the opinion that submission of the learned defence counsel for the appellant carries little weight. According to the evidence available on file Dalbinder Singh at 4.30 p.m. was near Raman Electric Repair Shop. Then sighted the appellant. Then the appellant with the help of 'Burmi' had caused injuries. Occurrence was witnessed by Malkiat Singh and ASI Ajaib Singh. After the occurrence, the injured was shifted to the hospital. At 5.50 p.m. the injured was medico-legally examined by Dr.Naresh Kumar, PW-1. Three injuries were noticed on his person. Intimation was given to the police. Police came to hospital. Application was moved by the Investigating Officer to get opinion from the doctor as to whether the injured was fit to make statement or not but the injured was declared unfit. At that time Malkiat Singh complainant or ASI Ajaib Singh were not present in the hospital. Malkiat Singh, stated that his wife had gone to village Bhagjeri. After getting his son admitted in the hospital he came back to his house to bring clothes and to inform his wife. Second eye-witness was ASI Ajaib Singh but no evidence on the file that he was present in the hospital when the police party had gone to the hospital. Injured was not fit to make statement. Complainant had gone to village Bhagjeri to bring his wife. When he came back on 8.12.1991 at about 11.00 a.m. then his statement was CRA-S-1243-SB of 1999 -9- recorded. Injury on the person of Dalbinder Singh, cannot be self- suffered or self-inflicted in the stomach. If the injured had teased the girls and was given beatings by the fellow students then why the appellant was named when injured had no enmity with the appellant. There seems to be some delay in lodging the FIR but delay is not fatal and sufficient for ignoring the prosecution story. Delay is one of the suspicious circumstance. When delay then evidence on file is to be scrutinized with great care and caution. Delay only is not sufficient for acquittal of the appellant.
Next submission of the learned defence counsel for the appellant was that the presence of eye-witnesses is doubtful because the complainant was serving as MHC in Police Station Raman. No record on the file that he was on leave. Second eye-witness was ASI Ajaib Singh. Again no record at what time he had left the police station. After going through the evidence on the file I am of the opinion that presence of eye-witnesses at the time of occurrence cannot be doubted. Malkiat Singh-complainant was serving as MHC in Police Station Raman but he was on leave. Entry was made in the Rojnamcha. In case Malkiat Singh-complainant was not on leave then record of Police Station, Raman, could easily be summoned in defence to show that on 7.12.1991, H.C. Malkiat Singh-complainant was in the police station and was not on leave. When Malkiat Singh appeared as PW-3 then no request to defer his cross-examination on the allegation that the record be summoned from Police Station Raman, as to whether on 7.12.1991, Malkiat singh was on leave or not. Malkiat Singh, had residence in Street No.13, Guru Teg Bahadur Nagar, Bathinda. No evidence that while going to street No.13 he was not to pass through Ajit Road, Bathinda. According to the evidence on file Malkiat Singh was going towards his residence from the side of old bus stand via Ajit Road.
CRA-S-1243-SB of 1999 -10- Street No.6 falls on the way. Place of occurrence was near Raman Electric Works situated on Ajit Road, Bathinda. Due to non-production of record regarding leave of the complainant, prosecution story is not to be ignored. Occurrence was witnessed by two persons. Second witness was ASI Ajaib Singh but he was not examined. If he was not the eye-witness as per the prosecution story then ASI Ajaib Singh could easily be produced in defence. ASI Ajaib Singh was residing in the same street i.e. street No.13 and was posted in District Bathinda at the time of present occurrence. Record of police station could easily be summoned to show that ASI Ajaib Singh was in the police station and not in the field at the relevant time. He was not related to the complainant although he was serving in the Police Department. When house of the complainant and ASI Ajaib Singh was in the same street then presence of ASI Ajaib Singh at the time of occurrence was natural. Something could be said if residence of ASI Ajaib Singh was in some other Mohalla and to visit the house of the complainant while going from the side of bus stand place of occurrence was not falling in the way. Complainant and the eye-witness were serving in the Police Department so on this short ground their presence cannot be ignored. Shop of the appellant was in street No. 6. There were number of shops adjoining the shop of the appellant and if at the time of occurrence complainant and ASI Ajaib Singh, were not present on the spot then any shopkeeper could easily be produced in defence to show that there was no occurrence near the shop of the appellant and if there was a occurrence then at that time Head Constable Malkiat Singh and ASI Ajaib Singh were not present.
According to the prosecution story, injuries were caused with 'Burmi'. Dr. Naresh Kumar, PW-1, had medico-legally examined Dalbinder Singh. Three injuries were noticed but injuries No.2 and 3 CRA-S-1243-SB of 1999 -11- were superficial abrasions. Injury No.1 was not declared dangerous to life. No question to the doctor that injury was not possible with a 'Burmi'. No request to defer the cross-examination that weapon of offence be brought from the concerned police station to show the same to the doctor to report whether injury No. 1 was possible with the weapon produced in the Court. Dr. S.K. Goyal, appeared as PW-8, again no request that prosecution be directed to produce the weapon so that opinion be sought from the doctor as to whether any injury noticed was possible with the 'Burmi' or not. Without any request to defer the cross- examination of the doctors to show them the weapon of offence for opinion as to whether injury noticed was possible with the 'Burmi' or not, learned defence counsel for the appellant cannot argue that if the weapon was not shown to the doctors then prosecution story is to be ignored.
Appellant was arrested on 12.12.1991, and in pursuance of the disclosure statement weapon of offence was recovered. Main gate was opened with the key but nothing on the file that the key was in the pocket of the appellant. Sometimes key is not kept in the pocket. At the time of arrest, arrest memo was prepared. Articles recovered on personal search of the accused are shown in the memo but sometime minor articles are kept concealed by the accused and are noticed by the police at the time of checking. Common experience shows that after locking the main gate sometime key is concealed near the gate. Only the owner of the premises knows where the key was concealed. In this case the appellant suffered disclosure statement. As per his disclosure statement he had gone to his shop alongwith the police party and opened the shop with the key. Then weapon of offence was recovered from his shop. So recovery of weapon is not to be doubted in case main gate of the shop was opened by the appellant with the key.
CRA-S-1243-SB of 1999 -12- Next submission of the learned defence counsel for the appellant was that PW-1 Dr. Naresh Kumar had medico-legally examined the injured but injury No.1 was not declared dangerous to life. As per the operation notes injury No.1 was declared dangerous to life. Statement of the learned defence counsel for the appellant seems to be correct one. Dr. Naresh Kumar had medico-legally examined the injured on 7.12.1991 at 5.50 p.m. Three injuries were noticed. Injury No.1 was on the left side of the abdomen. Injuries No.2 and 3 were superficial abrasions. Injury No.1 was kept under observation for surgical opinion. Dr. Naresh Kumar, in view of the application Ex. PW-8/B opined injury No.1 as dangerous to life. Doctor admitted that injured was operated upon by Dr. S.K. Goyal, but he had not declared the nature of injury.
Dr. S.K. Goyal, while appearing as PW-8 stated that on 7.12.1991, injured was operated upon by him as per operation notes Ex. PW-8/A. The patient remained under his treatment and was discharged on 22.12.1991. As per police request he had given his operation report Ex. PW-8/C. No question was put to the doctor as to whether injury No.1 was dangerous to life and whether after admission condition of the patient ever become critical at any stage. Learned Additional Public Prosecutor, for the State should have put question to Dr. S.K. Goyal, as to whether at any stage condition of the injured was critical whether injury No.1 kept under observation was dangerous to life or not. In cross-examination Dr. S.K. Goyal, admitted that at the time of operation he had not mentioned about the general condition of the injured. He cannot deny whether the injured was fully conscious. Lastly, stated that the patient was under the influence of general anesthesia. If the prosecution was of the view that injury No.1 was dangerous to life then the doctor who had operated the injury should have stated that the injury was kept under observation and was CRA-S-1243-SB of 1999 -13- dangerous to life. But no report of Dr. S.K. Goyal, who had operated upon the injured that any injury noticed at the time of medico-legally examination was dangerous to life. In view of the statements of both the doctors I am of the opinion that no offence punishable under Section 307 of the Indian Penal Code is made out. Injury was with a 'Burmi' and 'Burmi' is sharp pointed edged weapon. Injury was in the stomach. The appellant is liable for punishment under Section 326 IPC and not under Section 307 IPC.
Occurrence is dated 7.12.1991 and at that time appellant was 25 years old. He was a poor electrician and is the first offender. After the present occurrence he has not committed any such act. According to the custody certificate he has already undergone 3 months and 23 days out of the actual sentence. Injuries No. 2 and 3 are superficial abrasions.
In 2010 (1) R.C.R. (Criminal) 929 "Neelam Bahal and another vs. State of Uttrakhand" accused inflicted injuries with a knife. No categorical statement made by the doctor that injuries caused to the victim were dangerous to life. No question of conviction under Section 307 IPC but opined that accused is liable to be convicted under Section 326 of the Indian Penal Code because the victim remained in hospital due to injuries caused to him. Incident is 23 years old. Accused was then 25 years old. Sentence reduced from 7 years to already undergone (one year). Two incised wounds were noticed. One was in the chest and the second on top of left shoulder. General condition of the patient was very bad. B.P. Was not recordable.
In 2008 (1) R.C.R. (Criminal) 600 "Surjit Singh Vs. State of Punjab" conviction was under Section 307/149 IPC and sentenced to undergo R.I. for 5 years and to pay a fine of Rs.2000/-. Incident is 17 years old. Sentence reduced to already undergone (6½ months).
CRA-S-1243-SB of 1999 -14- Amount of fine enhanced.
In the present case occurrence is dated 7.12.1991, at that time the appellant was 25 years old. But the victim remained in the hospital up to 22.12.1991. Earlier to the occurrence minor dispute amongst the parties. After the present occurrence the appellant had not committed any such act. He is to become hardcore criminal if again sent to jail to undergo imprisonment as ordered by the trial Court. The ends of justice would be fully met in case a lenient view is taken. The appellant is directed under Section 326 IPC to undergo imprisonment already undergone (3 months 23 days) and further directed to deposit Rs. 20,000/- more as fine payable to the injured as compensation. Rs. 20,000/- is to be deposited within two months before the trial Court.
For the reasons recorded above the present appeal without merits is dismissed with modification on the point of sentence of imprisonment and fine.
August 16, 2010 ( JORA SINGH ) rishu JUDGE