Punjab-Haryana High Court
Jagdev Singh And Another vs State Of Punjab on 14 January, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 307-SB of 1996
Date of decision: 14th January, 2009
Jagdev Singh and another
... Appellants
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. M.S. Gill, Advocate for the appellants.
Mr. Mehardeep Singh, Assistant Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J.
Present appeal has been filed by Jasdev Singh son of Banta Singh and Gurcharan Singh son of Kartar Singh, both residents of village Hurj Harika, District Bathinda. They were tried by the Court of Additional Sessions Judge, Bathinda, who held that Jasdev Singh appellant, for causing Gandasa blow on the head of Joginder Singh with an intention to murder him, has caused an injury and is liable under Section 307 IPC. Gurcharan Singh co-accused appellant was held substantively liable under Section 324 IPC for causing Takua blow on the arm of injured Joginder Singh. After holding appellants substantively liable for the above offences, they were convicted with the aid of section 34 IPC also. Jasdev Singh was found guilty of offences under Section 324 read with section 34 IPC and Gurcharan Singh under Section 307 read with section 34 IPC. Criminal Appeal No.307-SB of 1996 2
Jasdev Singh was sentenced under Section 307 IPC to undergo rigorous imprisonment for five years and to pay fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. Gurcharan Singh was sentenced under Section 324 IPC to undergo rigorous imprisonment for two years and to pay fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for six months. Gurcharan Singh was also sentenced under Section 307 IPC read with section 34 IPC to undergo rigorous imprisonment for five years and to pay fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. Jasdev Singh was also sentenced under Section 324 IPC read with section 34 IPC to undergo rigorous imprisonment for two years and to pay fine of Rs.500/-, in default of payment of fine to undergo rigorous imprisonment for six months.
Jarnail Kaur was married with Joginder Singh about 20 years ago. During subsistence of marriage, a daughter and a son were born. Daughter being elder, was 10/11 years old and the son was 7/9 years old. Joginder Singh had three brothers, namely Nachhattar Singh, Zora Singh and Banta Singh. Sant Kaur, mother of Joginder Singh was being looked after by Banta Singh, his elder brother. She was owner of three killas of land. She transferred two killas out of her total land in favour of Jasdev Singh son of Banta Singh. Remaining one killa of land was transferred in the name of Joginder Singh. Banta Singh and his son Jasdev Singh were having grievance that Sant Kaur had transferred one killa of land in the name of Joginder Singh. Occurrence, in the present case, has taken place on 5th October, 1989 at about 7.30 p.m., when Jarnail Kaur was standing in front of her house. At that time, Joginder Singh was returning to his house. When he was passing in front of the house of Bant Singh, the appellant herein, i.e. Jasdev Singh armed with Gandasa and Gurcharan Singh with Takua, came at the spot. Jasdev Singh caused injury with Gandasa blow Criminal Appeal No.307-SB of 1996 3 on the head of Joginder Singh and Gurcharan Singh gave Takua blow on the right arm of Joginder Singh. Joginder Singh fell down and raised noise, then Jasdev Singh gave another Gandasa blow from the reverse side on the left eye of Joginder Singh. On raula (noise) raised by Jarnail Kaur, accused appellants decamped from the spot. Nachhattar Singh, elder brother of Joginder Singh arranged a vehicle and brought the injured Joginder Singh to Civil Hospital, Mansa, where he was medico legally examined. From there, Joginder Singh was referred to C.M.C. Ludhiana. On a written message received from the hospital regarding arrival of the injured, a police party headed by ASI Hakam Singh and other officials went to Civil Hospital, Mansa. Opinion was sought regarding the fitness of injured Joginder Singh. The doctor opined Joginder Singh unable to make statement. On 6th October, 1989, SI Ujagar Singh obtained medico legal report but injured was again declared unfit to make statement. Later, SI Ujagar Singh again went to Civil Hospital, Mansa on 6th October, 1989 in the evening and learnt that injured has been referred to C.M.C., Ludhiana. On 7th October, 1989, a wireless message was received that injured Joginder Singh is admitted in the C.M.C. Ludhiana. On 8th October, 1989, Ujagar Singh SI recorded the statement of Jarnail Kaur, wife of the injured Joginder Singh at C.M.C. Ludhiana, on the basis of which formal FIR was registered. At that time, Joginder Singh was not declared fit to make statement. Jarnail Kaur, on 8th October, 1989, had also produced the blood stained clothes of Joginder Singh, before SI Ujagar Singh, which were taken into possession vide a separate recovery memo. Jarnail Kaur and Nachhattar Singh were attesting witnesses to the recovery memo. Arrest of Jasdev Singh and Gurcharan Singh was effected on 12th October, 1989 and 15th October, 1989 respectively. Weapons of offence were recovered. Investigation was concluded and report under Section 173 Cr.P.C. (challan) was presented.
Criminal Appeal No.307-SB of 1996 4
Appellants were charged for offence under Sections 307, 324 read with section 34 IPC. They pleaded not guilty and claimed trial.
Prosecution examined PW-1 Dr.Harkirat Singh to prove injuries on the person of Joginder Singh. Complainant Jarnail Kaur appeared as PW-2 and injured Joginder Singh as PW-3. SI Ujagar Singh appeared as PW-4. Nachhattar Singh and Bhola Singh were given up as won over. Other witnesses, i.e. Shiv Chand Draftsman, Inspector Piara Singh who partly investigated the case, were given up as unnecessary.
All incriminating evidence was put to the accused under Section 313 Cr.P.C. They denied the allegations and pleaded false implication. Gurcharan Singh stated that he was falsely implicated as he had not accepted Joginder Singh's request to depose against Jasdev Singh in a land dispute. Jasdev Singh in defence examined DW-1 Nachhattar Singh and DW-2 Ram Kumar and closed defence evidence.
I have heard Mr. M.S. Gill, counsel for the appellant and Mr.Mehardeep Singh, AAG Punjab appearing for the State.
Mr. Gill appearing for the appellant has stated that there is a delay in lodging of the FIR. He has stated that occurrence had taken place on 5th October, 1989 and out of two eye witnesses Jarnail Kaur and Nachhattar Singh, only Jarnail Kaur has deposed, besides injured Joginder Singh, Nachhattar Singh was given up as won over and no statement of his was recorded. Therefore, no reliance should be placed on the testimony of Jarnail Kaur PW-2 and Joginder Singh PW-3, as they are interested witnesses. Mr. Gill has further stated that in the present case, no offence under Section 307 IPC is made out. The offence, if any, will fall under Section 326 IPC. It was stated that Nachhattar Singh, who was cited as eye witness, has appeared in defence and has stated that Joginder Singh remained admitted for 13/14 days. Therefore, injury being grievous will fall under Section 326 IPC. It has been submitted that even Joginder Criminal Appeal No.307-SB of 1996 5 Singh has not remained hospitalized for 20 days. The very fact that injury was given on the head, is not sufficient to infer that offence under Section 307 IPC is made out.
I have examined the plea raised by the counsel for the appellants. In the present case, police had sought opinion regarding fitness of Joginder Singh. Police was waiting Joginder Singh to be declared fit, in order to record his statement. Jarnail Kaur being the wife was expected to look after her husband. Therefore, her first anxiety was to take care of her husband Joginder Singh. In these circumstances, delay cannot be held fatal to the prosecution. Joginder Singh and the accused Jasdev Singh are closely related. He will be the last person to depose against his nephew. Therefore, due credence is to be given to the testimony of injured Joginder Singh PW-3.
At this stage, counsel for the appellants has stated that taking into consideration the protracted trial of more than 19 years, sentence awarded upon the appellants be adequately reduced. Counsel for the appellants has advanced no other meaningful argument.
Counsel for the State, to oppose reduction of the sentence has stated that Joginder Singh had suffered following injuries:
1. Incised wound 10 cms x cms present on the frontal aspect of head starting 2 cm above the medial end of the left eyebrow and went upwards and centrally placed.
Blood clots were present in the wound. Underlying bone was fractured and loose grey matter was present within clouts. Fresh clotted blood present around the wound. Depth was not probed.
2. Both the eye lids on left eye were swollen and bluish in colour.
3. Incised wound 3 cms x 1 cm present on the posterior aspect of the right fore-arm on upper part, fresh clotted blood present. Muscles deep. Advised X-ray.
Criminal Appeal No.307-SB of 1996 6I have given my thoughtful consideration to the arguments raised by the counsel for the parties. The injury No.1 suffered on the head had caused fracture and was a serious injury, therefore, this Court has to draw balance between mitigating and aggravating circumstances. Taking into consideration the protracted trial and nature of the injuries, ends of justice will be fully met, in case sentence awarded upon the appellants is reduced from five years to 2 ½ years. However, sentence of fine is maintained.
With these modifications in the sentence, present appeal is disposed off.
[KANWALJIT SINGH AHLUWALIA] JUDGE January 14, 2009 rps