Punjab-Haryana High Court
Baljinder Singh @ Bobby And Others vs State Of Punjab on 25 July, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
CRR-313-2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1)
Crl. Revision No.313 of 2014 (O&M)
Date of Decision: July 25, 2014.
Baljinder Singh @ Bobby and others
......PETITIONER(s).
VERSUS
State of Punjab
....RESPONDENT(s).
(2)
Crl. Revision No.331 of 2014 (O&M)
Surinder Singh
......PETITIONER(s).
VERSUS
State of Punjab
....RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Argued by : Mr. Sanjay Gupta, Advocate with
Mr. Sarju Puri, Advocate
for petitioners Baljinder Singh @ Bobby,
Sarabjit Singh and Shaminder Singh.
Mr. Navjot Singh, Advocate
for petitioner Surinder Singh.
Mr. Jasdev Singh Brar, A.A.G., Punjab.
*******
SURINDER GUPTA, J.
The revision petitions captioned above have been preferred Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -2- against the judgment dated 26.11.2013 passed by learned Additional Sessions Judge (Ad hoc), Fast Track Court, Hoshiarpur, whereby the appeal of the petitioners and co-accused Amrik Singh, against the judgment dated 09.12.2009 passed by learned Sub Divisional Judicial Magistrate, Garhshankar convicting and sentencing them for the offences punishable under Sections 326, 324, 323 read with Section 149 and 148 Indian Penal Code (for short 'IPC'), was dismissed.
The case of the prosecution, in brief, is that on 29.12.2004 complainant Gurmanpreet Singh had gone to village Garhi on the invitation of family of Harjinder Kumar to attend a religious function. On reaching the house of Harjinder Kumar at 7.00 p.m. the complainant was informed by his father Sohan Lal that Harjinder Kumar had gone to the tubewell. The complainant along with one Sandeep Kumar son of Mohan Lal of village Lodhipur who was also friend of Harjinder Kumar and had come to his house, left for the tubewell where they met Inderjit and Jatinder Kumar brothers of Harjinder Kumar. At about 7.30 p.m., Shaminder Singh son of Sohan Singh and Bobby son of Major Singh, resident of village Matton came there, who appeared to be under the influence of liquor. Both entered into an argument with Jatinder Kumar and Inderjit and later left the spot abusing them.
After some time, aforesaid Shaminder Singh and Bobby came to the spot with other companions armed with kirpans and dangs. The other persons were five in number and they raised lalkara to catch Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -3- hold of complainant and Sandeep Kumar and not to allow them to escape.
Injuries attributed to petitioner Shaminder Singh Shaminder Singh gave a blow with his kirpan towards the head of complainant which he took on his right arm and the blow hit right thumb of right hand of complainant. Thereafter he gave another blow with kirpan towards the head of complainant which hit middle finger of right hand. He gave another blow with kirpan on the right foot of the complainant which hit the sole of the right foot.
Injuries attributed to petitioner Bobby @ Baljinder Singh Petitioner Bobby gave a blow with kirpan on the right leg of complainant which hit below the knee.
Injuries not specifically attributed to any of the petitioners. As per the complainant, an unidentified person out of the assailants gave a push to the complainant, as a result of which he fell down on the ground while another unidentified assailant gave blow with dang on the right leg of complainant. All the assailants gave injuries with kirpans and dangs to complainant and Sandeep Kumar who suffered injuries on the head, leg and foot.
On receipt of information at the house of Harjinder Kumar, friend of complainant, Sarpanch Dhani Ram and number of other persons reached the spot. On seeing them, all the assailants left the spot with their weapons. Injured were shifted to the hospital, where their medical examination was conducted by Dr. Balbir Kumar. He found following Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -4- injuries on the person of complainant Gurmanpreet Singh:-
"1. 12 X 6 cm X bone deep present on plantar aspect of right foot. Wound was incised with cut underline tendons. Perfuse bleeding was present. X-ray Ortho Surgeon opinion was advised.
2. Incised wound 3 X ½ cm on right tibia present obliquely placed at the level of Tibial tuberosity. Fresh bleeding was present and x-ray was advised.
3. Lacerated wound 2 X 2 cm on left leg, 5 cm below knee joint line.
4. 3 X 2 cm incised wound, present on palmar aspect of right thumb with underline bone cut at the level of centre of distal phalanx. Fresh bleeding was present. X-rays and Ortho Surgeon were advised.
5. Incised wound 4 X 3 cm on dorsal aspect of right middle finger in middle phalanx and adjoining distal and proximal phalanx. X-ray and Ortho Surgeon opinion was advised."
In the opinion of the doctor, injuries No.1, 2, 4 and 5 were caused by sharp edged weapons, whereas injury No.3 was caused by blunt weapon. Injured Gurmanpreet Singh was later treated at Orthonova Hospital, Jalandhar by Dr. Harpreet Singh, who after conducting the x-ray examination of the right foot Ex.P1, gave his report Ex.P2 and opined that Gurmanpreet Singh had fracture of base of 5th metacarcel of right foot. The matter was report to the police, as a result of which FIR No.1 dated 4.1.2005 was registered and the petitioners were arrested and after completion of investigation, challan against them was presented before Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -5- the Court.
After completion of trial, statements of petitioner(s) were recorded under Section 313 Code of Criminal Procedure wherein they pleaded their innocence and alleged their false implication.
The trial Court convicted and sentenced the petitioners and co-accused as follows:-
Convicted for the Sentence
offence punishable under Rigorous Fine
Section Imprisonment
326 read with Section Three years `200 in default of payment
149 IPC of fine to further undergo
simple imprisonment for a
period of two months.
324 read with Section Two years `100 in default of payment
149 IPC of fine to further undergo
simple imprisonment for a
period of one month.
323 read with Section One year `100 in default of payment
149 IPC of fine to further undergo
simple imprisonment for a
period of one month.
148 IPC Two years `100 in default of payment
of fine to further undergo
simple imprisonment for a
period of one month.
The appeal filed by the petitioners along with co-accused Amrik Singh, was dismissed. It is pertinent that co-accused Amrik Singh though filed the appeal along with the petitioners but during the pendency of appeal, had failed to appear before the Court and was declared proclaimed offender and his appeal was dismissed. He has not filed revision petition against dismissal of his appeal.
Learned counsel for the petitioners have argued that both the Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -6- Courts below have failed to look into the following major aspects in this case:-
(i) Delay of six days in lodging the FIR;
(ii) Sandeep Kumar, second injured was not examined.
(iii) Both the injured were guests of Harjinder Kumar, the alleged eyewitness, neither received any injury nor interfered to save their guests.
(iv) The occurrence took place at about 7.30 or 8.00 p.m. on 29.12.2004 while the medical examination of injured Gurmanpreet Singh was conducted at about 12.05 a.m. on 30.12.2004 and of Sandeep Kumar at 12.25 a.m. The version to the police was given even after due consultation with the relatives which gave time to the complainant to give a coloured version of the occurrence to implicate all the petitioners.
(v) The eyewitnesses were young persons of 20 to 22 years of age and it is highly improbable that they did not interfere to save the injured from the hands of petitioners.
(vi) As stated by Dr. Harpreet Singh PW7, the grievous injury on the person of Gurmanpreet Singh could be caused by coming under a heavy weight.
Learned counsel for the petitioners have submitted that in the event of injury No.1 being self suffered, no offence under Section 326 IPC is made out. As per the opinion of the doctor, Gurmanpreet Singh was smelling alcohol at the time of his examination. The police has not Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -7- produced the shoe of the injured having the corresponding cut with regard to injury No.1. No other petitioner except Shaminder Singh and Baljinder Singh @ Bobby have been attributed specific injuries and they have been wrongly convicted and sentenced in this case.
Learned State counsel has argued that injury No.1 on the person of Gurmanpreet Singh caused by Shaminder Singh with sharp edged weapon was declared grievous on x-ray examination. The mere suggestion to the doctor that such an injury can be caused by coming under a heavy weight do not suggest that this injury was either self suffered or caused in any other manner. Moreover, Gurmanpreet Singh was a guest of Harjinder Kumar. He had no enmity with the petitioners. The mere fact that he was smelling alcohol at the time of his medical examination gives no reason to reject the testimony of the injured as well as eyewitnesses. The non-examination of other injured Sandeep Kumar, who was also guest of Harjinder Kumar, in no way had weaken the prosecution case. Sandeep Kumar had also gone to the village of Harjinder Kumar to attend a religious ceremony and was caused injuries. He was medically examined and injuries were found on his person. He had gone abroad and his presence could not be procured by the Court. The testimony of all the witnesses is reliable and without any aspersion, and is further corroborated by the medical evidence. There is no delay in medical examination of the injured. Both were taken to the Civil Hospital, Nawanshahr immediately after the occurrence and they reached Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -8- there at 9.00/9.15 p.m. The delay was on the part of doctor who conducted their medical examination after midnight. Immediately thereafter, injured Gurmanpreet Singh was taken to Orthonova Hospital, Jalandhar, where the police recorded his statement. The delay in lodging the FIR, as such, has been duly explained.
Before appraisal of the judgments of both the Courts below, it would be relevant to look at the statements of injured and eyewitnesses who have stated about the manner in which the occurrence took place. The complainant named two of the assailants viz Shaminder Singh and Bobby. He did not name other petitioners or attributed any injury to them. Eyewitness Jatinder Kumar PW2 had also stated that Shaminder Singh and Bobby armed with kirpans along with six other persons armed with dangs came to the spot and gave lalkara. He immediately gave information on phone to his uncle Dhani Ram. He attributed specific injuries to Shaminder Singh and Bobby caused to Gurmanpreet Singh and Sandeep Kumar. A push was also attributed to one Mika son of Virsa Singh but there is no accused of the name of Mika son of Virsa Singh in this case. No specific injury to petitioners Sarabjit Singh son of Sohan Singh and Surinder Singh son of Pritam Singh was attributed except a vague statement that remaining assailants caused injuries to Sandeep Kumar.
PW3 Inderjit named the assailants who came to the spot as
(i) Shaminder Singh, (ii) Sarabjit brother of Shaminder Singh, (iii) Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -9- Baljinder Singh @ Bobby, (iv) Mika son of Virsa Singh and (v) Surinder son of Pritam Singh. He attributed a push given by Mika to Gurmanpreet Singh and stated that while the injuries were caused on the right leg, Gurmanpreet was not wearing shoe as it got removed during the occurrence. A kirpan blow was also attributed to Mika son of Virsa Singh which he caused on the person of Sandeep Kumar. He attributed a dang blow to Surinder Singh on the right leg of Sandeep Kumar, but did not attribute any specific injury to Sarabjit Singh son of Sohan Singh and stated that other accused had caused dang blows to Sandeep Kumar and Gurmanpreet Singh.
From the above discussion, it is clear that Mika son of Virsa Singh, whose presence was mentioned at the spot and who was attributed a push to Gurmanpreet and injury to Sandeep was not arrayed as accused in this case. The statements of eyewitnesses further show that the complainant and PW2 Jatinder Kumar had not attributed any injury specifically to petitioner Sarabjit Singh and Surinder Singh. Even their presence was specifically stated at the spot by these witnesses. Inderjit Singh PW3 has spelled the presence of petitioner Baljinder Singh @ Bobby, Sarabjit Singh, Shaminder Singh and Surinder Singh at the spot and attributed one injury to Surinder Singh caused on the right leg of Sandeep Kumar with dang. However, injured Sandeep Kumar has not been examined as witness in this case by the prosecution.
From the above discussion, it transpires that the prosecution Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -10- has been able to make out the role of two petitioners viz Baljinder Singh @ Bobby and Shaminder Singh. Most of the injuries on the person of Gurmanpreet and Sandeep have been attributed to them. The recovery of a dang from petitioner Surinder Singh vide memo Ex.PW6/FA/PW4 in no manner proves his involvement in the occurrence in the absence of any cogent and convincing evidence. Learned trial Court has not discussed the part played by the above named petitioners in the occurrence while recording their conviction for the offences punishable under Sections 326, 324, 323 read with Section 149 and 148 IPC. The appellate Court has also not looked into this aspect. While discussing the evidence in this regard, the appellate Court has observed as follows:-
"The participation of the appellants in commission of the offence, the presence of the eye witnesses is duly proved by the complainant. The presence of the complainant alongwith Sandeep Kumar at the place of occurrence is natural, as he had gone to attend some religious programme on invitation given by Harjinder Kumar. The presence of the complainant at the place of incident is very much natural as he had gone to the tubewell motor of his friend Harjinder Kumar. Inderjit Singh and Jatinder Kumar brothers of Harjinder Kumar were already present at the tubewell motor. At the first instance the complainant got recorded the name of Shaminder Singh son of Sohan Singh and Bobby son of Major Singh. These appellants were named by the complainant at the first instance. The prosecution version that the appellants alongwith Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -11- other unidentified assailants inflicted injuries on the person of Gurmanpreet and Sandeep Kumar, is very much proved by the prosecution witnesses. The complainant while reiterating his version deposed on oath that the appellants alongwith other unidentified persons reached the spot. The complainant has also assigned reason why the appellants inflicted injuries on his person as well as on the person of Sandeep Kumar, because they had stopped them from abusing Harjinder Kumar and his family. The complainant has attributed specific injuries to Shaminder Singh which he inflicted on his person with the sword carried by him. The unidentified persons as per statement of the complainant pushed him and as a result he fell on the ground and the said person gave a blow with sword on his foot and right leg below the knee. Appellants also inflicted injuries on the person of Sandeep Kumar. The version of the complainant seems to be very natural and cannot be said to be an improved or concocted, had it been so, he might have named the other persons in his statement Ex.PA got recorded with the police. But the complainant narrated the true version to the police and only named Shaminder Singh and Sarabjit Singh. The presence of eye witnesses namely Jatinder Kumar and Inderjit Singh who have been examined as PW-2 and PW-3, cannot be doubted from any corner as these witnesses had gone to their fields for checking the flow of water."
From the discussion of the evidence by the appellate Court, it is clear that even the appellate Court has not reached any specific Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -12- conclusion about the participation of petitioner Sarabjit Singh, Amrik Singh and Surinder Singh.
From the above discussion, I am of the considered opinion that both the trial Court and appellate Court have committed gross error of law and facts while recording conviction and sentence to the petitioners Sarabjit Singh and Surinder Singh. The judgment of the trial Court to this extent is not sustainable in the eyes of law and is required to be set aside.
Admittedly, injured Gurmanpreet Singh in no manner was inimical towards petitioner Shaminder Singh and Bobby. He had named both in his statement. There is no delay in his medical examination as they have reached the hospital within an hour of the occurrence. As to why the delay of 3 hours in conducting his medical examination took place, could be explained by the doctor i.e. Dr. Balbir Kumar PW4. The defence preferred not to inquire this fact from him and did not put any question to him in his cross-examination.
Injuries on the person of Gurmanpreet Singh were caused by sharp-edge weapon and were quite serious. One injury caused on the right foot was declared grievous in nature. He has explained the manner in which this injury was caused and stated that after a push, he fell on the ground and his foot got embedded in the mud in water irrigated field. He took the kirpan blow given by Shaminder Singh on his foot which resulted in causing grievous injury. PW3 Inderjit has stated that at the Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -13- time of causing the above injury, the shoe of Gurmanpreet Singh was not on the foot due to which he received injuries on the foot. Both Courts have discussed the point of delay in recording the statement of complainant and I find no reason to differ with these observations and this delay in no manner reflect on the case of the prosecution. So far as the non-examination other injured Sandeep Kumar is concerned, it also do not effect the prosecution case as the Court had closed the evidence of the prosecution after recording the statements of other witnesses except Sandeep Kumar who had gone abroad.
This plea of learned counsel for the petitioners that the coloured version of the occurrence has been given by the complainant after consultation with friends and relatives. It is clear that in his statement the complainant has named only two persons specifically namely petitioners Shaminder Singh and Bobby. Had he made statement after consultation, he could have named all the petitioners in his statement and attributed one or the other injuries to them. This shows that he has given the natural narration of the occurrence and the Courts below have rightly observed that police did not record the statement of injured after 2nd January, 2005. The fact that the eyewitnesses did not intervened and were not caused any injuries has also been looked into by both the Courts below and no substance was found in this argument.
It is clear from the statement of complainant as well as eye witness that Sandeep Singh had intervened to save Gurmanpreet and was Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -14- caused injuries by Shaminder Singh. The other eyewitness preferred to immediately give information at their house on phone. The occurrence had taken place at the spur of the moment without giving much time for the eyewitnesses to intervene. As such, this argument of learned counsel for the petitioner carry no weight.
The fact noticed by Dr. Balbir Kumar PW4 while conducting medical examination of Gurmanpreet Singh that he was smelling liquor, in no manner affects the veracity of the truthfulness of his statement regarding the occurrence and also that of the eyewitnesses. Gurmanpreet Singh was a guest, who had gone to village Garhi on invitation of his friend Harjinder Kumar. He at the time of occurrence was unarmed. He has not caused any injuries to the assailants and even if he was smelling liquor when he was medically examined, do not create any suspicion about his statement or the version of the prosecution.
As a sequel to my discussion above, the revision petition filed by petitioner Surinder Singh bearing CRR No.331 of 2014 and another petition bearing CRR No.313 of 2014 to the extent it relates to Sarabjit Singh have merits and are allowed. The judgments of both the Courts below convicting and sentencing petitioners Surinder Singh and Sarabjit Singh for the offences punishable under Sections 326, 324, 323 read with Section 149 and 148 IPC are set aside and they are acquitted of the charge framed against them. The conviction of petitioners Baljinder Singh @ Bobby and Sahminder Singh for the offence punishable under Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH CRR-313-2014 -15- Section 148 IPC and the sentence awarded is set aside and they are acquitted of the same. Their conviction for the offences punishable under Sections 326, 324, 323 read with Section 149 IPC is modified to the offences punishable under Sections 326, 324, 323 read with Section 34 IPC.
Keeping in view the age, antecedents and the facts of the case, the sentence awarded to Baljinder Singh @ Bobby and Shaminder Singh for the offence punishable under Section 326 read with Section 34 IPC is reduced from three years to two years. The sentence awarded to them under Section 324 and 323 read with Section 149 IPC is maintained but modified as sentence awarded under Section 324, 323 read with Section 34 IPC. The revision petition bearing CRR No.313 of 2014 filed on behalf of Baljinder Singh @ Bobby and Shaminder Singh is partly allowed only to the extent of modification of the sentence as discussed above.
Copy of this judgment be sent to the trial Court and Chief Judicial Magistrate, Hoshiarpur for further necessary action.
( SURINDER GUPTA ) July 25, 2014. JUDGE Sachin M. Mehta Sachin 2014.07.25 17:44 I attest to the accuracy and integrity of this document CHANDIGARH