Punjab-Haryana High Court
Prem Singh Son Of Har Chanda vs The State Of Haryana on 4 May, 2009
Criminal Appeal No. 211-SB of 1995 1
Criminal Appeal No. 570-SB of 1995
Criminal Revision No. 817 of 1995
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 211-SB of 1995
Date of Decision: 04.05.2009
Prem Singh son of Har Chanda, resident of village
Anangpur, Police Station N.I.T., Faridabad.
... Appellant
Versus
The State of Haryana
...Respondent
Criminal Appeal No. 570-SB of 1995
Date of Decision: 04.05.2009
1. Ved Pal son of Attar Singh, resident of village Anangpur,
Police Station N.I.T., Faridabad.
2. Chattar Singh son of Har Chanda, resident of village
Anangpur, Police Station, N.I.T., Faridabad.
... Appellants
Versus
The State of Haryana
...Respondent
Criminal Appeal No. 211-SB of 1995 2
Criminal Appeal No. 570-SB of 1995
Criminal Revision No. 817 of 1995
Criminal Revision No. 817 of 1995
Date of Decision: 04.05.2009
Ajit son of Piare, resident of Village Anangpur, P.S. N.I.T.
Faridabad, District Faridabad.
... Revision-petitioner
Versus
1. Prem Singh son of Har Chanda;
2. Ved Pal son of Attar Singh;
3. Chattar Singh;
4. Attar Singh;
5. Vijender;
6. Nirbhey, sons of Har Chanda;
7. Rajinder son of Hari Chand;
8. Tejpal son of Attar Singh;
All residents of village Anangpur, P.S. N.I.T. Faridabad,
District Faridabad.
...Respondents
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. R.S. Sihota, Senior Advocate,
with Mr. B.R. Rana, Advocate,
for the appellant,
in Criminal Appeal No. 211-SB of 1995.
Mr. R.S. Sihota, Senior Advocate,
with Mr. B.R. Rana, Advocate,
for the appellants,
in Criminal Appeal No. 570-SB of 1995.
Mr. P.S. Sullar, Deputy Advocate General, Haryana,
for the respondent - State.
Criminal Appeal No. 211-SB of 1995 3
Criminal Appeal No. 570-SB of 1995
Criminal Revision No. 817 of 1995
Mr. Sandeep Mann, Advocate,
for the complainant,
in both the appeals.
Mr. Sandeep Mann, Advocate,
for the revision-petitioner,
in Criminal Revision No. 817 of 1995.
Mr. R.S. Sihota, Senior Advocate,
with Mr. B.R. Rana, Advocate,
for the respondents,
in Criminal Revision No. 817 of 1995.
SHAM SUNDER, J.
**** This judgement shall dispose of Criminal Appeal No. 211-SB of 1995, filed by Prem Singh, against the judgement of conviction dated 16.03.95, and the order of sentence dated 20.03.95, vide which, he was convicted and sentenced as under; Criminal Appeal No. 570-SB of 1995, filed by Ved Pal, and Chattar Singh, accused (now appellants), against the same judgement, vide which, they were convicted and released on probation; and Criminal Revision No. 817 of 1995, filed by Ajit, revision- petitioner, for enhancement of sentence of imprisonment, and fine, imposed upon Prem Singh, accused (now appellant); award of suitable sentence to Ved Pal and Chattar Singh, accused, who were released on probation; setting aside the judgement of acquittal qua Attar Singh, Bijender, Rajinder, Tejpal Singh, and Nirbhey and awarding them suitable sentence and award of compensation.
Criminal Appeal No. 211-SB of 1995 4 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Name of the accused Offence for which Sentence awarded (now appellants) convicted 1 2 3 Prem Singh (a) Under Section 326 To undergo rigorous of the Indian Penal imprisonment for a Code. period of three years, and to pay a fine of Rs. 500/-, in default thereof, to further undergo rigorous imprisonment for a period of three months. (b) Under Section 324 To undergo rigorous of the Indian Penal imprisonment for a Code. period of one year, and to pay a fine of Rs. 200/-, in default thereof, to further undergo rigorous imprisonment for a period of one month. (c) Under Section 27 To undergo rigorous of the Arms Act. imprisonment for a period of two years, and to pay a fine of Rs. 300/-, in default thereof, to further undergo rigorous imprisonment for a period of two months.
All the subtantative sentences, were ordered, to run concurrently.
2. The gist of the prosecution case is that, Pyare Lal father of Ajit, had two brothers namely Hari Chand and Harchanda. Accused Bijender and Rajender, were the sons of Hari Chand. In November 1987, they had a land dispute, with them. The other uncle of Ajit namely Harchanda, had also aligned himself, with them. In the earlier occurrence, Bajinder was injured, for which, Ajit and Sarjit brother of Ajit were challaned, by the Police, Criminal Appeal No. 211-SB of 1995 5 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 under Section 325 of the Indian Penal Code.
3. On 23.02.88, at around 8.30 P.M., Ajit was going to attend his duty, on a cycle and when he reached near the field of Rumal, situated quite close to their house, Nirbhai, Attar Singh, Chattar Singh and Prem, accused, armed with lathis and hockey sticks, accosted him. Nirbhai exhorted his co- accused to teach him (Ajit) a lesson, as a result whereof, he dropped his cycle, and ran towards his house, to save himself, but Nirbhai, dealt a lathi blow, on his back. Ajit returned home, and talked about the incident, to his neighbours Dharambir, Shish Pal and Suraj. In the meanwhile, the aforesaid accused, also reached there, and altercation took place. Dharambir, Shish Pal and Suraj, intervened and dispersed them.
4. On 24.02.88, at about 7 A.M, accused Nirbhey, came in front of their (complainant party's) house. He shouted at Ajit, that even though, he had escaped, on the preceding night, yet he would settle the score, at some other time. Ajit Singh, exchanged hot words with him. On hearing of commotion, all the accused, reached the spot. Accused Attar Singh, was armed with a sword, Ved Pal was carrying a country made pistol, Bhim Singh and Harchanda, were empty handed, Chattar Singh, Bijender, Rajender and Tej Pal, were carrying lathies or hockey sticks. From the side of Ajit Singh, Rajender, Ranjit, Kishan, Beg Raj, Risal, Hans Raj and Ajay Pal, besides Sudesh, also came there. Attar Singh, accused shouted, that they would see him (Ajit). Then the accused attacked the members of the complainant party, with lathis and hockey sticks. They also used brick bats. Attar Singh, also exhorted Prem Singh, to bring his gun. Accordingly, Prem Singh, brought his gun, and fired 4 or 5 shots, while standing on his Criminal Appeal No. 211-SB of 1995 6 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 chabutra. Ved Pal, fired one single shot, from his pistol. The first shot of Prem Singh, struck Ajit Singh, on his eye, face and shoulder. Tejbir, Hans Raj, Ajai Pal, Jaipali and Bittoo, received pellet injuries at the hands of Prem Singh, whereas Jaggo, received the pellet injuries, at the hands of Ved Pal. Ranjit, Kishan, Rajender, Beg Raj, Risal and Sudesh, received injuries, besides Ajit Singh. They received injuries at the hands of the accused with lathies and hockey sticks. The complainant party, also threw stones, at the accused, as a result whereof, some of them, received injuries. Chahat, Bahadur and Amrit, Sarpanch, witnessed the occurrence. The injured were taken to the hospital.
5. On 24.02.88, Bisheshar Lal, Inspector, received a ruqa from B.K. Hospital Faridabad, as a result whereof, he visited the same, and recorded the statements of Ajit Singh, exhibit PDD, and Piare Lal injured, who were admitted, in the hospital, after obtaining the opinion of the doctor, that they were fit to make the same. Bisheshar Lal, Inspector, also recorded the statements of the witnesses, in the hospital, and thereafter, visited the spot. He prepared the rough site plan exhibit PHH, on the pointing out of Ranjit Singh, prosecution witness. He picked up two empties from the baithak of Attar Singh, sealed the same, in a parcel, and took the same into possession, vide recovery memo exhibit PJJ, attested by the witnesses. Bisheshar Lal, Inspector, arrested six accused, on 27.02.88, and Ved Pal, accused on 01.03.88. On interrogation, Ved Pal, accused, made a disclosure statement, that he had concealed one country made pistol, in front of the kikar of his house, and could get the same recovered. In pursuance of his disclosure statement, he got recovered the pistol, which was taken into possession by Criminal Appeal No. 211-SB of 1995 7 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Bisheshar Lal, Inspector. He arrested Nirbhey, accused, on 01.03.88. On 27.02.88, Attar Singh, produced his licenced gun, and the same was taken into possession, vide recovery memo exhibit PCC, after preparing its rough sketch exhibit PCC/1. After the completion of investigation, the accused were challaned.
6. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, Charge under Sections 148, 307, 323, and 325 read with Section 149 of the Indian Penal Code, against all the accused, as also under Section 27 of the Arms Act, against Prem Singh, accused, was framed, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial.
7. The prosecution, in support of its case, examined as many as 15 witnesses. Dr. V.K. Aggarwal, appeared as (PW1), who examined Ajit, and found the following injuries, on his person:-
(i) Left eye was congested. There was lacerated wound of size 3mm x 3 mm on upper lip on the medium side with fresh bleeding. Injury was referred to eye specialist.
(ii) Lacerated wound size 3mm x 3mm on right cheek with fresh blood.
(iii) Lacerated wound size 3mm x 3mm on right side of scalp in parietal region.
(iv) Two lacerated wounds size 3mm x 3mm on upper part of right arm with clotted blood.
(v) Five abrasions size 4mm x 4mm with contusion around them on the right side of chest and posterior aspect of right shoulder with clotted blood.Criminal Appeal No. 211-SB of 1995 8
Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 He proved M.L.R. exhibit P.A, xray report exhibit PB, and skiagrams exhibit PB/1 to PB/5. He also proved ruqa, exhibit PC, sent to the Police, regarding the arrival of injured, in the hospital. He also proved opinion, exhibit PD.
8. On 25-2-88, Dr. V.K. Aggarwal, also medically examined, Ajay Pal, and found three radio opaque shadows of matalic density. He proved his report exhibit PE and skiagrams exhibit PE/1 and PE/2.
9. On 24-2-88, he also x-rayed Risal, and found no bony injury. He proved report exhibit PF and skiagrams exhibit PF/1 to exhibit PF/3, in that behalf.
10. Rajinder, was also radiologically examined by Dr. V.K. Aggarwal, and he proved his report exhibit PG, and skiagram exhibit PG/1. He also radiologically examined Ranjit, Virender, Jai Pal, Jaggo, Tejbir, and proved xray reports exhibits PH, PJ, PK, PL and PN respectively.
11. Dr. Rajiv Arya (PW2), on 24-2-88, medically examined Tejbir, and found the following injuries, on his person:-
(i) Patient was conscious. The anterior chamber of right eye contained blood. There was history of vomitting.
(ii) There were multiple small circular wounds present on the forehead on right side and left side. Each wound was about 0.35cm x 0.35cm in size with fresh bleeding and underline swelling.
(iii) Two small circular wounds were present on the left side of neck about 0.45 cm x 0.45 cm. in size with fresh bleeding and underline swelling.
(iv) A small circular wound 0.45 cm x 0.45 cm in size on the left shoulder area with fresh bleeding.
(v) There was swelling of the right eye with bleeding. The anterior chamber of the eye contained blood. This injury was referred to eye surgeon for his opinion while other injuries were referred for surgeon's opinion.Criminal Appeal No. 211-SB of 1995 9
Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 He examined his report exhibit PN, in that behalf, on Police application, and proved opinion exhibit PN/A.
12. Dr. Rajiv Arya (PW2), also medically examined Beg Raj, and found the following injuries, on his person:-
(i) A 3" long lacerated wound on the right parietal region just below to the midline. The wound was scalp deep and the underline bone was healthy. Injury was kept under observation and was referred to Surgeon's opinion.
He proved M.L.R Exhibit P.Q in this behalf.
13. Risal, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:-
(i) A 1" long lacerated wound on the left eye brow. The underline bone was healthy. The injury was referred for xray and eye Surgeon's opinion.
(ii) There was blood in the anterior chamber of left eye. Advised for eye Surgeon's opinion.
(iii) There was lacerated wound 1.5cm on the left vestigule of the nose. Advised xray nasal area.
He proved exhibit PP the correct carbon copy of M.L.R.
14. Doctor Rajiv Arya (PW2), also medically examined Sudesh, and found the following injuries, on his person:-
(i) Lacerated wound 1cm present on the forehead on the left side.
Fresh bleeding present.
(ii) An abrasion 2"x0.25" on the lateral surface of right thigh. Underline swelling was present.
He proved carbon copy of MLR Exhibit PQ, in this behalf.
15. Kishan, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:-
(i) Lacerated wound 1" in size on the parietal (left) region. Fresh bleeding was present.Criminal Appeal No. 211-SB of 1995 10
Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995
(ii) Abrasions were present on the right hand. He proved carbon copy of MLR Exhibit PR in that behalf.
16. Hans Raj, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:-
(i) A small 0.25x 0.25 cm circular wound present on the lateral surface of the left leg. Advised xray.
(ii) A small 0.25x0.25cm circular wound present at the lateral surface of the left ankle joint. Advised xray.
M.L.R exhibit P.S was proved by the aforesaid doctor, in that behalf.
17. Dr. Rajiv Arya (PW2), also medically examined Ajay Pal, and found the following injuries, on his person:-
(i) Two small circular wounds present on the forehead on the left side just above the left eye brow. Each measuring 0.25cm x 0.25cm in size. Fresh bleeding was present. Advised xray and Surgeon's opinion. Wound was fresh.
He also medically examined carbon copy of MLR exhibit PT in that behalf.
18. Smt. Jaggo, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on her person:-
(i) A small circular wound 0.35cm x 0.35 cm in size was present on the anterior lateral surface of the right thigh.
(ii) A small circular wound 0.25 x 0.25 cm present on the lateral surface of the right forearm closed to the elbow joint.
He proved exhibit PW, the M.L.R., in that behalf, and exhibit PW1/1 the opinion.
19. Dr. Rajiv Arya (PW2), also medically examined Rajinder, and found the following injuries, on his person:-
(i) An abrasion 1 ½ "x0.5" in size present on the antero lateral aspect of the right leg at the centre. Xray advised.
He proved Exhibit P.X the correct carbon copy of M.L.R. in that behalf. Criminal Appeal No. 211-SB of 1995 11 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995
20. Ranjit, was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:-
(i) An abrasion 1.5 x 1.5" in size present on the front of left foot.
(ii) An abrasion and swelling 2"x2" in size present over the right shoulder joint. Advised xray.
He proved exhibit PY, the M.L.R., prepared in that behalf, and exhibit PY/1, the opinion. He also proved the opinion exhibit UP/1, regarding the injuries suffered by Virender, as well as the opinion exhibit PT/1, regarding injuries suffered by Ajay Pal. The report exhibit PN/1, was also proved, by him, vide which, he referred Tejbir, to A.I.I.M.S. Delhi.
21. Dr. Rajiv Arya (PW2), also medically examined Attar Singh (accused), on 24.02.88, and found the following injuries, on his person:-
(i) Multiple abrasions on the left hand on posterior surface with swelling of the hand. Xray advised.
(ii) A big contusion 4" x 6" in size on the anterio lateral aspect of the left fore-arm. Tenderness was present. Xray advised.
(iii) An abrasion 2" x 1 ½ " on the posterio lateral surface of the right forearm closed to the right elbow joint with swelling and tenderness. Xray advised.
(iv) Multiple abrasions were present on the right hand.
(v) An abrasion was present on the right foot closed to the big toe on the anterio surface.
(vi) A contusion 2" x 2" was present 4" above the left ankle joint with swelling. Xray advised.
He proved MLR, exhibit DA, in that behalf,.
22. Dr. Rajiv Arya (PW2), also medically examined Nirbhey (accused), and found the following injuries, on his person:-
(i) A lacerated wound 1" in size was present on the forehead on the Criminal Appeal No. 211-SB of 1995 12 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 left side closed to the parietal region. Clotted blood was present.
(ii) There was a penetrating wound 0.75cmx0.5cm on the lateral surface of the lower abdomen on left side. The margins were sharp. The injury was advised for xray and for Surgeon's opinion.
(iii) There were multiple contusion marks on the front and lateral side of the left thigh with tenderness.
He proved MLR exhibit DB, in that behalf.
23. Harchanda (from the side of the accused), was also medically examined by Dr. Rajiv Arya (PW2), who found the following injuries, on his person:-
(i) A lacerated wound with fresh bleeding 3" long was present on the anterior surface of right foot.
(ii) An abrasion on the right leg in the medial surface was present.
(iii) There were multiple abrasions on the left foot.
He proved M.L.R. Exhibit D.C in that behalf.
24. On the same day, Dr. Rajiv Arya (PW2), also examined Lali, and found the following injuries, on her person:-
(i) A lacerated wound 1" in size on the anterio lateral surface of the left foot on the front side was present.
(ii) A lacerated wound was present of 1" in size on the right parietal region which was scalp deep.
He proved exhibit DD, the photocopy of MLR, in that behalf.
25. Charan Singh, Clerk, office of the Sub Divisional Magistrate, Ballabgarh, (PW3), brought the record, regarding sanction of arm licence for DBBL. 12 gun in favour of Attar Singh.
26. Kanhiya Lal, Sub Inspector (PW4), proved applications, exhibit PZ and PZ/A, moved by him, for seeking opinion of the doctor, regarding the nature of injuries, on the person of the injured. On 9-7-88, he recorded Criminal Appeal No. 211-SB of 1995 13 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 the statement of Charan Singh Clerk.
27. Rura Ram, Head Constable (PW5), proved ruqa, exhibit PAA, and made an entry, to this effect, in the DDR, at serial No.5, dated 02.02.88, vide DDR exhibit PAA/1.
28. Ram Lubhaya, Head Constable (PW6), tendered affidavit Exhibit PBB.
29. Chhattar Singh, Head Constable (PW7), stated that gun exhibit P1, was taken into possession, by Sub Inspector Bisheshar Lal, from Attar Singh accused, vide memo exhibit PCC.
30. Ajit, complainant (PW8), and Ranjit, eye-witness (PW9),deposed in terms of the prosecution version.
31. Chahat (PW10), and Tejbir (PW11), narrated about the incident.
32. Paras Ram, Medical Record Technician (PW12), brought the summoned record, pertaining to the treatment of Ajit Singh.
33. Dr. Atul Kumar, Associate Professor (PW13), stated that he knew Dr. S.N. Jha. He also deposed that on reference from B.K. Hospital Faridabad, Ajit was treated at their Institute. He also stated that he only examined the patient in the Retina Clinic for both of his eyes. His left eye showed damage to the Retina with haemorrahage. The doctor proved his report exhibit PGG. He further stated that he (Ajit) was examined by another Specialist, on being referred to Trauma Clinic, and the final opinion of the Trauma Clinic, was that the prognasis was poor in the left eye and to some extent, there was loss of vision.
34. Dr. S.N. Jha, Consultant, Sir Ganga Ram Hospital, Delhi (PW14), stated that he had examined the patient and also operated upon him on 25-2- Criminal Appeal No. 211-SB of 1995 14 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 1988. There was perforation at the limbus, radiological examination revealed Magnetic foreign body. He also deposed that he repaired the damage and tried to remove the aforesaid foreign body. Three pellets were found embedded in the orbit of the eye. He also stated that he applied giant magnet and was able to extract one pellet from outside the eye. The doctor proved his report exhibit PHH.
35. Bisheshar Lal, Inspector Vigilance, Karnal (PW15), Investigating Officer, made a statement, about the sequence of investigation, conducted by him.
36. The Public Prosecutor for the State, tendered into evidence exhibit PEE affidavit of Constable Harmes. He also tendered into evidence report exhibit PFF of the Radiologist lady doctor Shashi Bhalla. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
37. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They took up a plea, that the attack was launched by the complainant party, and they caused injuries, in self defence.
38. In defence the accused examined Sish Pal (DW1). They also tendered into evidence documents exhibit DY and marks A and B. Thereafter, the accused closed their defence evidence.
39. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced Prem Singh, appellant, as stated above, whereas, convicted and released Chattar Singh, and Ved Pal, accused, on probation of good conduct, and acquitted Criminal Appeal No. 211-SB of 1995 15 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Bijender, Rajinder, Tejpal, Nirbhey, and Attar Singh, accused.
40. Feeling aggrieved, the aforesaid appeals by the appellants, and the revision-petition, by the complainant/revision-petitioner were filed.
41. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
42. The Counsel for the appellants, submitted that the trial Court, was wrong in coming to the conclusion, that it was a case of free fight, in which, the accused as well as the members of the complainant party, caused injuries on each other. He further submitted that from the evidence, on record, it was proved that the members of the complainant party, were the aggressors, and the members of the accused party, were the aggressive. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Five injuries on the person of Ajit, caused by fire arm, four injuries on the person of Tejvir, caused by fire arm, one injury on the person of Beg Raj, caused by blunt weapon, three injuries, on the person Risal, caused by blunt weapon, two injuries, on the person of Sudesh, caused by blunt weapon, two injuries on the person of Kishan, two injuries, on the person of Hans Raj, one injury, on the person of Ajay Pal, two injuries, on the person of Jaggo, one injury, on the person of Rajinder, two injuries, on the person of Ranjit, as also injuries on the person of Virender, and Jaipal, on the complainant side, and six injuries, on the person of Attar Singh, accused, three injuries, on the person of Nirbhey Singh, accused, three injuries on the person of Harchanda (from the side of accused), and two injuries, on the person of Lalli (from the side of accused), were found. In this manner, there were eleven injured, on the side of the complainant party, and four injured, on the Criminal Appeal No. 211-SB of 1995 16 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 side of the accused party, referred to above. The members of the complainant party, suffered fire arm injuries, at the hands of the members of the accused party, as also injuries, with blunt weapons. The occurrence took place, in the lane outside the house of Ajit one of the injured. From the evidence, on record, the trial Court, was right, in coming to the conclusion, that the members of both the parties, were armed with various types of weapons. They had come to the lane outside the house of one of the injured, to enter into a pitched battle. Had it been not the intention of members of both the parties, to enter into a pitched battle, they would not have come armed with various types of weapons. The principle of law, laid down, in Bachan Singh and others Vs. The State, 1969 P.L.R. 393 (P&H(DB) and Gaja Nand Vs. State of Uttar Pradesh, AIR 1954 (SC), 695, was to the effect, that a free fight, is that, when both sides mean to fight, from the start, go out to fight, and there is a pitched battle, the question of who attacks and who defends, in such a fight, is wholly immaterial and depends upon the tactics, adopted by the rival commanders. It is to be seen, as to whether, the principle of law, laid down, in the aforesaid cases is applicable to the facts of the present case or not. Various factors, from which, it could be concluded, that it was a case of free fight, have been narrated above. Members of both the parties armed with various types of weapons, measured their strength, and caused injuries, on each other. The trial Court, was, thus, right in holding that it was not a case of aggressor or aggressive, but was a case of free fight, in which, members of the both the parties took law into their own hands, and entered into a free fight. In these circumstances, the trial Court, was right, in holding that the members of the Criminal Appeal No. 211-SB of 1995 17 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 accused party, would be held guilty for their individual roles, and not with the aid of the provisions of Section 149 of the Indian Penal Code. The submission of the Counsel for the appellants, to the effect, that the members of the complainant party, were the aggressors, and the members of the accused party were the aggressive, and the trial Court, was wrong in holding that it was a case of free fight, therefore, being devoid of merit, must fail and the same stands rejected.
43. It was next submitted by the Counsel for the appellants, that the ocular version and the medical evidence were inconsistent with each other. He further submitted that, under these circumstances, the benefit of doubt was required to be given to the accused, but the trial Court, failed to do so. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. When the trial Court, held that it was a case of free fight, in which, the members of both the parties, took law into their own hands, entered into a free fight, and caused injuries on each other, any inconsistency between the medical and ocular evidence, was hardly of any consequence. Had it been not a case of free fight, the matter would have been different. Even otherwise, it is settled principle of law, that when there is contradiction, between the ocular and medical evidence, then the former will have primacy over the latter. The perusal of the medical and ocular evidence, does not, in any way, go to reveal that there was any material inconsistency between the two. When the occurrence was almost admitted, as also proved, whether there was any discrepancy between the ocular and medical evidence it did not affect the merits of the case. Looked from any angle, the submission of the Counsel for the appellants, does not merit Criminal Appeal No. 211-SB of 1995 18 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 acceptance, and the same stands rejected.
44. It was next submitted by the Counsel for the appellants, that the witnesses produced by the prosecution, were not telling the truth. He further submitted that Chahat, PW10, made a number of improvements and contradictions in his statement in the Court, vis-a-vis his previous statement before the Police. He further submitted that even Tejbir, PW11, made improvements, and contradictions, in his statement, in the Court, vis-a-vis his earlier statement, before the Police. He further submitted that these improvements and contradictions, must prove fatal to the case of the prosecution. Again it may be stated here, that once the occurrence was almost admitted, by both the parties, and only the mode and manner, as also the number of the members of both the parties, who were present, and participated in the occurrence, was disputed, the improvements and contradictions made by the aforesaid prosecution witnesses, vis-a-vis their previous statements, before the Police were of no consequence, at all. Even otherwise, the improvements and contradictions, which cropped up, in the statements of the aforesaid witnesses, vis-a-vis their previous statements, were of insignificant and innocuous nature, which did not affect the very fabric of the case. Had it been not a case of free fight, the matter would have been different. No help, therefore, can be drawn, by the Counsel for the appellants, from the improvements and contradictions, which were insignificant and innocuous, cropping up in the statements of Chahat, and Tejvir, prosecution witnesses, vis-a-vis their previous statements before the Police. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. Criminal Appeal No. 211-SB of 1995 19 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995
45. The Counsel for Prem Singh, appellant in Criminal Appeal No. 211-SB of 1995, however, submitted that since the said appellant, did not commit any offence, after his conviction, in the aforesaid case, and much water has flown under the bridges since the date when the first information report, in the year 1988, was registered, against the accused, he be granted the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958. Prem Singh, appellant, was convicted, for the offences, punishable under Sections 326 and 324 of the Indian Penal Code, as also 27 Arms Act. The Counsel for Prem Singh, appellant, placed reliance on State of Punjab Vs. Nasib Singh, 2003(3) RCR (Criminal) 304, a case decided by a Division Bench of this Court, in support of his contention that the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958, could also be granted, for the offence, punishable under Section 326 of the Indian Penal Code. The facts of State of Punjab's case (supra), were that injuries were inflicted with sword, on the person of the complainant. Injury on the left leg of the injured caused fracture of bone, as per the medical evidence. X-ray was not conducted. The trial Court, in these circumstances, held that the offence, punishable under Section 326 of the Indian Penal Code, was made out, as there was specific opinion of the doctor, that there was fracture of bone, irrespective of the fact, that no radiological examination was conducted. The accused was convicted and sentenced for the offence punishable under Section 326 of the Indian Penal Code. Feeling aggrieved, the accused preferred an appeal, in the Court of Sessions, which was assigned to the Court of Additional Sessions Judge. The Court of Additional Sessions Judge, held that, no offence, punishable under Section 326 of the Criminal Appeal No. 211-SB of 1995 20 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Indian Penal Code, was made out, as the radiological examination was not conducted, in relation to the injuries, and only an offence, punishable under Section 324 of the Indian Penal Code, was made out. The appellant was acquitted for the offence, punishable under Section 326 of the Indian Penal Code. Accordingly, the conviction was converted into one for the offence, punishable under Section 324 of the Indian Penal Code, instead of Section 326 of the Indian Penal Code, and the accused (respondent) was ordered to be released on probation of good conduct. Feeling aggrieved, the State of Punjab preferred an appeal, in this Court, against the acquittal of the accused (respondent), for the offence, punishable under Section 326 of the Indian Penal Code. This Court, in State of Punjab's case (supra) held that notwithstanding the fact that, no radiological examination was conducted, once there was medical opinion, that injury on the left leg of the injured caused fracture, it fell within the purview of grievous injury, as defined by Section 320 of the Indian Penal Code, and, as such, the offence, punishable under Section 326 of the Indian Penal Code, was constituted. This Court, allowed the appeal, and affirmed the judgement of the trial Court, in regard to conviction, for the offence, punishable under Section 326 of the Indian Penal Code, and modified the judgement of the Appellate Court, to that extent. However, even after conviction of the accused, for the offence, punishable under Section 326 of the Indian Penal Code, it was held by this Court, that the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958, as granted by the Appellate Court, was correct. That part of the judgement of the first Appellate Court, was, thus, upheld. For the offence, punishable under Section 326 of the Indian Penal Code, the Criminal Appeal No. 211-SB of 1995 21 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 maximum punishment which can be awarded, is life imprisonment. Section 4 of the Probation of Offenders Act, 1958, clearly debars the grant of probation, to an accused, convicted for the offence, punishable with death or imprisonment for life. Similar principle of law was, laid down, in Som Nath Puri Vs. State of Rajasthan (AIR 1972 S.C. 1490), State of Gujarat Vs. V.A. Chauhan, AIR 1983 (SC) 359 and Jugal Kishore Prasad Vs. State of Bihar, AIR 1972 (SC) 2522, a case decided by a three Judge Bench of the Apex Court. In this view of the matter, the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958, could not be extended to Prem Singh, appellant. No help, therefore, can be drawn by the Counsel for Prem Singh, appellant, from State of Punjab's case (supra), which lays down the principle of law, contrary to the one, laid down in Som Nath's, State of Gujarat's and Jugal Kishore Parsad's cases (supra) decided by the Apex Court. The submission, referred to above, of the Counsel for Prem Singh, appellant, in Criminal Appeal No. 211-SB of 1995, being devoid of merit, must fail, and the same stands rejected.
46. Last of all, the Counsel for Prem Singh, appellant, submitted that since the appellant has been undergoing the agony of protracted trial, since 1988, when the first information report, was registered, in this case, and already a period of more than 20/21 years has lapsed, the sentence awarded to him, be reduced to the period already undergone, which comes to be 02 months and 15 days in all. He further submitted that at the time of conviction Prem Singh, appellant, was 33 years, and now, he will be aged about 54 years. He further submitted that after 20/21 years, it would be unjust to send him to jail. The submission of the Counsel for Prem Singh, Criminal Appeal No. 211-SB of 1995 22 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 appellant, in this regard, also does not appear to be correct. It was Prem Singh, appellant, who fired four or five shots, while standing on the chabutra. The pellets of the first shot fired by Prem Singh, struck the eye, face, and shoulder of Ajit Singh. Pellets from the shots fired by Prem Singh, appellant, also caused fire arm injuries, on the person of Tejvir, Hansraj, Ajai Pal, Jaipali, and Bittu. By causing fire arm injuries on the person of a number of members of the complainant party, Prem Singh, appellant, committed a very heinous offence, though the trial Court held that no offence, punishable under Section 307 of the Indian Penal Code, was made out, against him, and converted the same into one under Section 326 of the Indian Penal Code, whereas no appeal against his acquittal for the offence, punishable under Section 307 of the Indian Penal Code, was filed by the State. Prem Singh, appellant, was awarded rigorous imprisonment for a period of three years, for the offence, punishable under Section 326 of the Indian Penal Code, rigorous imprisonment for a period of one year, for the offence, punishable under Section 324 of the Indian Penal Code, and rigorous imprisonment for a period of two years for the offence punishable under Section 27 Arms Act besides, awarding sentence of fine. The sentence awarded to Prem Singh, appellant, in my considered opinion, could not be said to be excessive or harsh, in any manner. The sentence awarded to Prem Singh, appellant, by the Court below, is commensurate with his proved guilt. Undue sympathy to impose inadequate sentence, would do more harm to the justice system, to undermine the public confidence, in the efficacy of law, and the society, could no longer endure, under such serious threats. It is, therefore, the duty of every Court, to award proper sentence, having Criminal Appeal No. 211-SB of 1995 23 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 regard to the nature of offence, and the manner, in which, it was executed or committed. In case, in such like heinous offences, inadequate sentence is awarded or the sentence awarded by the trial Court, is reduced, that would amount to the mockery of justice system. No ground for reduction of sentence, is, thus, made out. In this view of the matter, the submission of the Counsel for Prem Singh, appellant, being without merit, must fail, and the same stands rejected.
47. In Criminal Appeal No. 570-SB of 1995, filed by Ved Pal, and Chattar Singh, appellants, their Counsel, however, submitted that the period, for which, these appellants were released on probation has already expired. He further submitted that during the period of probation, these appellants did not commit any offence and remained peaceful. Ved Pal, accused, was convicted, for the offence, punishable under Section 324 of the Indian Penal Code, and Chattar Singh, accused, was convicted, for the offence, punishable under Section 325 of the Indian Penal Code. Keeping in view the facts and circumstances of the case, both these appellants were given the benefit of the provisions of Section 4(1) of the Probation of Offenders Act, by the trial Court. The judgement of the trial Court, granting the benefit of Section 4(1) of the Probation of Offenders Act, 1958, to Ved Pal, and Chattar Singh, accused (now appellants), cannot be said to be perverse or illegal in any manner. The same does not warrant any interference and is liable to be upheld.
48. The Counsel for the revision-petitioner, in Criminal Revision No. 817 of 1995, however, submitted that the trial Court, took a lenient view, in the matter of awarding sentence to Prem Singh, and releasing Ved Pal, and Criminal Appeal No. 211-SB of 1995 24 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Chattar Singh, on probation of good conduct. He further submitted that Ved Pal, and Chattar Singh, were at least members of an unlawful assembly, which had opened attack and caused injuries on the members of the complainant party. He further submitted that Ved Pal, was aged about 24 years and Chattar Singh, was aged about 43 years, at the time of framing the charge. He further submitted that, as such, no ground, whatsoever, was made out, for extending them the benefit of Section 4(1) of the Probation of Offenders Act, 1958. He also submitted that the trial Court was wrong in acquitting the remaining accused. It may be stated here, that the first information report, was registered in the year 1988. Already 20/21 years have lapsed from the date when the occurrence took place. It has been held above that the sentence awarded to Prem Singh, could not be said to be excessive or harsh. It was commensurate with his proved guilt. The trial Court held that it was a case of free fight, and, as such, the question of Ved Pal and Chattar Singh, being members of an unlawful assembly did not at all arise. The trial Court, after taking into consideration the totality of the facts and circumstances of the case, was of the opinion that Ved Pal, and Chattar Singh, were entitled to the grant of benefit of Section 4(1) of the Probation of Offenders Act, 1958. No fault, can be found with the conclusion, arrived at, by the trial Court, in extending the benefit of the provisions of Section 4 (1) of the Probation of Offenders Act, 1958 to Ved Pal, and Chattar Singh. After the expiry of a period of 20/21 years, from the date of occurrence, it would be unjust either to enhance the sentence awarded to Prem Singh, or to set-aside the order, extending the benefit of the provisions of Section 4(1) of the Probation of Offenders Act, 1958, to Ved Pal, and Chattar Singh and Criminal Appeal No. 211-SB of 1995 25 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 awarding them sentence. The perusal of the judgement of the trial Court reveals that it was right, in acquitting the remaining accused, as their participation, in the commission of crime was extremely doubtful, as no individual role was assigned to them. The Revisional Court, in a revision filed by a private party, can only interfere into the judgement of the trial Court, if the findings recorded by it, are perverse, illegal, or erroneous on account of the mis-reading of evidence. In the instant case, the findings recorded by the trial Court, are neither perverse, nor illegal, nor erroneous, on account of the mis-reading of evidence. The revision-petition, therefore, being devoid of merit, deserves to be dismissed.
49. For the reasons recorded above, Criminal Appeal No. 211-SB of 1995, filed by Prem Singh, and Criminal Appeal No. 570-SB of 1995, filed by Ved Pal, and Chattar Singh, appellants, being devoid of merit, must fail, and the same are dismissed. The judgement of conviction, and the order of sentence, qua Prem Singh, appellant, whereas the judgement of conviction, and the order of releasing Ved Pal, and Chattar Singh, on probation, are upheld.
50. The revision-petition, filed by the revision-petitioner, being devoid of merit, is also dismissed.
51. If Prem Singh, appellant, is on bail, his bail bonds, shall stand cancelled.
52. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. Criminal Appeal No. 211-SB of 1995 26 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995
53. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court.
54. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action.
04.05.2009 (SHAM SUNDER) AMODH JUDGE Criminal Appeal No. 211-SB of 1995 27 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Criminal Appeal No. 570-SB of 1995 Present: Mr. R.S. Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for the appellants.
Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the respondent - State.
Mr. Sandeep Mann, Advocate, for the complainant.
**** For orders, see Criminal Appeal No. 211-SB of 1995, titled as 'Prem Singh Vs. The State of Haryana.' 04.05.2009 (SHAM SUNDER) AMODH JUDGE Criminal Appeal No. 211-SB of 1995 28 Criminal Appeal No. 570-SB of 1995 Criminal Revision No. 817 of 1995 Criminal Revision No. 817 of 1995 Present: Mr. Sandeep Mann, Advocate, for the revision-petitioner.
Mr. R.S. Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for the respondents.
**** For orders, see Criminal Appeal No. 211-SB of 1995, titled as 'Prem Singh Vs. The State of Haryana.' 04.05.2009 (SHAM SUNDER) AMODH JUDGE