Punjab-Haryana High Court
Kausal Pal vs State Of Punjab on 25 January, 2011
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No.1123-SB-2001 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.1123-SB of 2001
Date of decision: 25.1.2011
Kausal Pal
... Appellant
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.R.K.Singla, Advocate,
for the appellant.
Mr.P.S.Grewal, AAG, Punjab.
...
JORA SINGH, J.
This criminal appeal was preferred by Kausal Pal to challenge the judgment of conviction and order of sentence dated 18.9.2001 passed by Additional Sessions Judge, Bathinda, in Sessions Case No. 9 of 28.7.2000, arising out of FIR No.128 of 12.3.2000 under Sections 307/324 IPC, Police Station Kotwali, Bathinda.
By the said judgment, he was convicted under Sections 307/324 IPC and sentenced to undergo RI for 4 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 4 months under Section 307 IPC, and to undergo RI for 1 year and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for 1 month under Section 324 IPC. However, both the sentences were ordered to run concurrently.
Prosecution story, in brief, is that on 12.3.2000, ruqa was received in P.P. Civil Lines, Bathinda, regarding admission of Vijay Kumar Crl.Appeal No.1123-SB-2001 2 and Suraj Pal in Civil Hospital, Bathinda. On receipt of information, ASI Amarjit Singh along with police party had gone to Civil Hospital, Bathinda. Application was made requesting the doctor to opine as to whether injured were fit to make statement of not. Suraj Pal was declared fit to make statement. Then his statement was recorded by ASI Amarjit Singh. Suraj Pal reported to the IO that he is from UP. Accused is also from UP. They both are Painters by profession for the last many years in Bathinda. About 20 days back, he got a contract to paint the house of Om Parkash. After that, he along with the accused started painting the house of Om Parkash. After 12-13 days, due to heavy work, Vijay Kumar was also joined in painting the house. On the day of occurrence, he was painting the kitchen and Vijay Kumar was painting the door of stairs, whereas the accused was painting the frills. At about 11.00 AM, accused came down from the stairs and after that he had gone to the chaubara along with ghapa and gave ghapa blows on the person of Vijay Kumar. On receipt of injuries, Vijay Kumar fell down and started raising raula. Then accused tried to give ghapa blow on the left side of his (Suraj Pal) forehead and in order to save himself, he raised his left hand. Then ghapa had hit on the back side of his left hand. Accused gave another blow hitting on the left side of his chest. Third blow was given on his right arm. On hearing raula, Om Parkash, owner of the house, came and on seeing him, accused had fled away from the spot along with ghapa. Both the injured were shifted to Hospital, where they were medico legally examined. Motive to cause injuries was that accused had a dispute with the injured and dispute was settled before the Panchayat. After making endorsement, statement (Ex.PH) was sent to the police station, on the basis of which, formal FIR (Ex.PH/2) was recorded. Crl.Appeal No.1123-SB-2001 3
IO had gone to the spot. Rough site plan with correct marginal notes was prepared. Doctor Ashok Kumar Garg produced blood stained clothes worn by injured Vijay Kumar. Clothes were made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Accused was arrested and weapon was recovered stained with blood. Blade of the weapon was made into a sealed parcel after preparing its sketch. Parcel was taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in Court.
Accused was charged under Sections 307/324 IPC, to which he pleaded not guilty and claimed trial.
Prosecution examined 10 witnesses.
PW1 Dr. Ashok Gupta on 12.3.2000 had medico legally examined Suraj Pal and found the following injuries on his person:-
"1. An incised wound 13 cms x 2.5 cms upwards and laterally in direction, 6 cms below the sternoclavicular joint and 5.5 cms from the left nipple. Wound was muscle deep and fresh bleeding was present. Corresponding cut on shirt and banayan was present. Advised x-ray.
2. An incised wound 4 cms x 0.8 cm on left fronto parietal region of skull, 2 cms left to the middle and 4.5 cms from the left eye brow. Direction was posterior lateral and tailing of wound was present at posterior end. Wound was muscle deep. Fresh bleeding was present. Advised x-ray.Crl.Appeal No.1123-SB-2001 4
3. An incised wound measuring 2.5 cms x 0.8 cm on right upper arm, 9 cms from elbow joint. Direction was upwards and laterally wound was muscle deep. Fresh bleeding was present. Corresponding cut on shirt was present.
4. An incised wound measuring 9 cms x 2.8 cms on Palmer aspect of left hand between index and middle finger going upwards towards the thenareminence of thumb. Injury was muscle deep. Fresh bleeding was present. Advised x-ray.
5. An incised wound on dorsum aspect of left hand at base of little finger measuring 1.6 cms x 0.3 cms. Wound was skin deep.
6. Reddish abrasion measuring 5 cms x 1 cm on anterior aspect of the left shoulder. Advised x-ray."
On the same day, he had medico legally examined Vijay Kumar and found the following injuries on his person:-
"1. An incised wound starting from right cheek on lateral angle of right mandible and anterior to right tragus and extending posteriorly cutting through pinna of right ear and going posteriorly on back of neck just above the posterior hair line and crossing the midline towards left, and wound was measuring 35 cms x 8 cms. Wound was cutting muscles and was bone deep. Profuse bleeding was present. Advised x-ray of skull and cervical spine and was kept under observation of Surgeon. Crl.Appeal No.1123-SB-2001 5
2. An incised wound measuring 8 cms x 2.5 cms on left oceipito parietal area 1 cm posterior to right ear and going posteriorly and placed horizontally. Fresh bleeding was present. Wound was bone deep and was advised x-ray."
PW2 Suraj Pal is the complainant-injured, whereas PW3 Om Parkash is the eye witness. They have supported the prosecution story by saying that accused had caused injuries with a ghapa.
PW4 Dr. H.L.Garg had x-rayed the injuries on the person of Vijay Kumar. Fracture of skull was noticed. No bone injury was noticed in case of injury No.1 and 3.
PW5 Sadhu Ram brought bed head tickets of Suraj Pal and Vijay Kumar. According to bed head ticket, Vijay Kumar was referred to PGI, Chandigarh, on 13.3.2000.
PW6 Ramesh Kumar is the Photographer. He had taken photographs (Ex.PO to Ex.PV) of the place of occurrence. Ex.PW6/1 to Ex.PW6/8 are the negatives.
PW7 HC Amrik Singh and PW8 Constable Raj Singh tendered their affidavits, Ex.PW and Ex.PX, respectively.
PW9 ASI Amarjit Singh is the Investigating Officer. PW10 Rajinder Kumar Gupta had prepared scaled site plan (Ex.PO).
After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Crl.Appeal No.1123-SB-2001 6
Defence version of the accused was that Vijay Kumar had a fall from the staircase on Suraj Pal and both had received injuries by fall on the instruments of painting including iron patties and dabbas etc. He was not present at the time of occurrence. He had gone to purchase material from the bazar.
Opportunity was given to lead defence evidence but no defence was led.
After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file.
Learned defence counsel for the appellant argued that appellant was convicted under Sections 307/324 IPC but offence punishable under Section 307 IPC is not made out because doctor has not stated a word that any of the injury on the person of Vijay Kumar or Suraj Pal was dangerous to life. Dr. Ashok Gupta had medico legally examined Suraj Pal and Vijay Kumar. Injuries on the person of Suraj Pal were found to be simple in nature. Two injuries on the person of Vijay Kumar were noticed. Vijay Kumar failed to appear in Court. Doctor stated that injury No.1 on the person of Vijay Kumar was simple in nature but considering collectively both the injuries on the person of Vijay Kumar, then possibility of injuries being dangerous to life cannot be ruled out. Doctor did not state a word that any of the injury was dangerous to life. In view of law laid down in 1987(1) RCR (Crl.) 184, State of Punjab vs. Tara Singh, conviction under Section 307 IPC not sustainable. Further argued that occurrence pertains to March, Crl.Appeal No.1123-SB-2001 7 2000. At that time, appellant was 31 years' old. He is a labourer and first offender. Already he has undergone 11 months and 23 days. Requested to take lenient view.
Learned State counsel argued that two injuries were noticed on the person of Vijay Kumar. Injuries were x-rayed. Fracture of skull was noticed. Weapon was ghapa. In view of nature of weapon used to cause injuries, doctor rightly opined that injury No.2 was dangerous to life.
According to story, on 12.3.2000 at about 11.00 AM, appellant and injured as Painters were painting the house of Om Parkash, PW. Appellant armed with ghapa gave six blows on the person of Suraj Pal and two blows on the person of Vijay Kumar, but before appearance in Court, Vijay Kumar had died. Due to the death of Vijay Kumar, prosecution was not in a position to examine him.
Suraj Pal, complainant-injured, appeared in Court and stated that he along with Vijay Kumar and appellant were painting the house of Om Parkash. Appellant armed with ghapa gave number of blows on his person. Two blows were given on the person of Vijay Kumar. They were shifted to Civil Hospital, Bathinda, where they were medico legally examined. Earlier to the occurrence, there was a dispute with the appellant and that dispute was settled with the intervention of Panchayat. No suggestion to the injured that there was no dispute or the dispute was not settled. Appellant and the injured are from UP. Both were working as Painters.
At about 11.00 AM, appellant had caused injuries to Suraj Pal and Vijay Kumar. Injured were shifted to the hospital. Dr. Ashok Gupta had medico legally examined them at 12.30 PM on 12.3.2000. Doctor Crl.Appeal No.1123-SB-2001 8 stated that injured were brought to the hospital on 12.3.2000 at 12.02 PM. Six injuries were noticed on the person of Suraj Pal, but all the injuries were found to be simple in nature.
Two injuries were noticed on the person of Vijay Kumar. Injury No.1 was found to be simple in nature but in case of Injury No.2, fracture of skull was noticed. Dr. H.L.Garg had x-rayed injuries on the person of Vijay Kumar but he has not stated a word that as per x-ray report, injury No.2 was dangerous to life. Dr. Ashok Gupta, who had medico legally examined Vijay Kumar, stated that considering collectively both the injuries, possibility of being dangerous to life cannot be ruled out. Dr. Ashok Gupta has not stated a word that injury No.2 was dangerous to life. Ex.PE/1 is the opinion of Dr. Ashok Gupta regarding nature of injuries on the person of Vijay Kumar.
In State of Punjab vs. Tara Singh's case (supra) cited by learned defence counsel for the appellant, this Hon'ble High Court observed that when doctor opined that possibility of injury on the person of victim being dangerous could not be ruled out, then no charge under Section 307 IPC is made out in absence of categorical opinion of the doctor. Learned State counsel failed to cite any authority that when report of the doctor is to the effect that possibility of injury being dangerous to life cannot be ruled out, then case is made out punishable under Section 307 IPC. No doubt, weapon used was ghapa and injury noticed was on the skull but no doctor was definite that injury noticed on the person of Vijay Kumar was dangerous to life. According to the doctor, possibility of injuries on the person of Vijay Kumar being dangerous to life could not be ruled out but in view of the report of the doctor, trial Court wrongly opined that injury was Crl.Appeal No.1123-SB-2001 9 punishable under Section 307 IPC, particularly when injured, on whose person injury, i.e., fracture of skull, was caused, failed to appear in Court as PW. Admittedly, Vijay Kumar had died but question is whether he had died before filing of challan or after number of dates were given to the prosecution to produce him. So, in view of the report of the doctor, no case is made punishable under Section 307 IPC.
Next submission of learned defence counsel for the appellant was that occurrence pertains to the year 2000 and at that time, appellant was 31 years' old. He is the first offender and belongs to poor family. Already he has undergone 11 months and 23 days. Requested to take lenient view.
Submission of learned defence counsel for the appellant seems to be reasonable one. Occurrence was at about 11.00 AM on 12.3.2000 in the house of Om Parkash, PW. At that time, appellant and injured were working as Painters. They were painting the house of Om Parkash. Appellant was 31 years' old. He is the first offender. Already he has undergone 11 months and 23 days. Weapon used was sharp edged. Injury was fracture of skull.
Keeping in view the seat of injury and the weapon used, appellant should have been convicted under Section 326 IPC instead of Section 324 IPC. So, appellant is directed to undergo imprisonment as already undergone (11 months and 23 days) under Section 326 IPC instead of Section 324 IPC. Fine maintained.
For the reasons recorded above, appeal without merit is dismissed with modification on the point of conviction and sentence.
25.1.2011 ( JORA SINGH ) pk JUDGE