Punjab-Haryana High Court
Mohammad Ali And Others vs State Of Punjab on 9 February, 2010
Author: A.N.Jindal
Bench: A.N.Jindal
Criminal Appeal No.1036-SB of 1999(O&M) [1]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Criminal Appeal No.1036-SB of 1999(O&M) Decided on : March 22, 2010 Mohammad Ali and others ... Appellants VERSUS State of Punjab ... Respondent CORAM :
HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Mohd.Yousaf, Advocate for the appellants.
Mr.C.S.Brar, Deputy Advocate General, Punjab assisted by Mr.P.S.Dhaliwal, Advocate for the complainant party. A.N.JINDAL, J.-
The accused - appellants Mohd.Ali, Aslam Khan and Hanif Khan (herein referred as `the accused') were initially tried for the offences under Sections 307/326/34 of the Indian Penal Code. However, vide judgment dated 25.9.1999, the Trial Court while acquitting the accused under Section 307 IPC, convicted Hanif under Section 326 IPC and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/-, while accused Mohd.Ali and Aslam Khan were convicted under Section 326 read with Section 34 IPC and awarded the same sentence, each, for causing grievous injury to complainant - Dina Khan (herein referred as `the complainant'). Accused Mohd.Ali was further Criminal Appeal No.1036-SB of 1999(O&M) [2] convicted under u/s 326 IPC for the grievous injury on the person of the complainant, attributed to him, and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/-, while accused Aslam Khan and Hanif Khan were also convicted u/s 326 read with Section 34 IPC and awarded the same sentence. However, all the sentences were ordered to run concurrently.
A brief resume of facts is that on 23.9.1993 after obtaining the medical opinion regarding injured Dina Khan to make a statement, HC Sukhwinder Singh recorded his statement Ex.PE, wherein, he disclosed that he as well as Bashir Khan and Jamil Khan are brothers. Accused Aslam Khan and Mohd.Ali are his step brothers from the other mother and Gafoor Khan is their father. Dina Khan and his two brothers had a dispute over a piece of land with their step brothers Aslam Khan and Mohd. Ali and their mother, which is pending in the Civil Court at Malerkotla. On 21.9.1993 at about 4.30 PM, when the complainant was returning to his village Dugni from Malerkotla and when he reached between village Sadoorpur and Dalelgarh, accused Mohd.Ali and Hanif Khan, both armed with Takua, while accused Aslam Khan armed with a Gandasi came from the side of village Dalelgarh. Accused Hanif Khan abused the complainant and exhorted to teach him a lesson for taking the land and he gave a Takua blow, which hit on the middle of the left arm of the complainant; accused Mohd. Ali also gave a Takua blow, which hit the complainant on the wrist of his left hand, while accused Aslam Khan gave a Gandasi blow, hitting the complainant on the back side of the head. On having received the injuries, the complainant fell down on the ground and, thereafter, the Criminal Appeal No.1036-SB of 1999(O&M) [3] accused Hanif Khan inflicted a Takua blow from its reverse side on his left arm and accused Mohd.Ali also inflicted a Takua blow, hitting his left elbow. Accused Hanif Khan forcibly pulled his penis and testicles. The complainant raised hue and cry, which attracted his brother Bashir Khan, upon which all the three accused fled away from the spot with their respective weapons. On this statement of the injured - complainant, the First Information Report was registered and the investigation commenced. The Investigating Officer inspected the spot of, prepared the rough site plan Ex.PG; recorded the statements of the witnesses and also got prepared the scaled site plan Ex.PF. On completion of the investigation, the challan was presented.
Finding a prima facie case against the accused - appellants, they were charged under Sections 307/326/34 IPC.
In order to substantiate the charges, the prosecution examined as many as eight witnesses.
When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. In defence, they examined Labh Singh (DW1) and closed their evidence. The trial ended in conviction.
At the very outset, counsel for the accused - appellants has stated that the parties are close relatives and they have compromised in the case. No offence under Section 326 IPC is made out as there is no bone cut and the doctor, who X-rayed the injured was not examined, therefore, in the absence of radiological evidence, no injury could be said to be grievous in Criminal Appeal No.1036-SB of 1999(O&M) [4] nature.
Having perused the records of the case, Dr.Amar Singh Azad (PW1) had examined Dina Khan and found six injuries on his person, out of these, injuries No.3 to 6 were found swelling and the doctor described the same as simple in nature, while injuries No.1 and 2 were declared grievous in nature, which are reproduced as under:-
"1. An incised wound 10 cm x 5 cm x 5 cm on the front of left fore-arm, muscles blood vessels and nerves cut, profusely bleeding. There was corresponding cut 1.5 cm long in the periosteum of outer lamella of radius bone.
2. An incised wound 3 x 1 x 1 cm on the dorsal of and lateral side of 5th meta carpal bone, profusely bleeding. There was corresponding cut in the periosteum measuring 1 cm linear."
On perusal of injury No.1, the doctor declared it grievous on the ground that blood vessels and nerves were cut and there was corresponding cut 1.5 cm long in the periosteum of outer lamella of radius bone. Similarly, injury No.2 reveals that it was on the 5th meta carpal bone and there was corresponding cut on periosteum measuring 1 cm linear. The doctor, who had X-rayed the injuries was not examined and these two injuries were declared to be grievous, merely because there was a bone cut, but the doctor (PW1) did not disclose as to what was the extent of the bone cut. Had the doctor, who conducted the X-ray been examined, it could be ascertained as to whether the bone cut was superficial in nature, and was to Criminal Appeal No.1036-SB of 1999(O&M) [5] the extent of bone cut. or in the upper part of the bone or it was really a deeper bone cut. However, in the absence of the radiological examination, the afore-quoted two injuries cannot be said to be grievous, to bring the same within the purview of any of the clauses of Section 326 IPC. It could also not be denied that there is no report of the doctor that these two injuries were dangerous to life. In these circumstances, the Trial Court fell into an error, while convicting the accused - appellants under Section 326 IPC. It appears that the Trial Court declared the injuries grievous in nature, merely on the ground that there was cut of the radius bone or in the periosteum, but in the absence of the proof of extent of the cut, these injuries could not be declared as grievous. The net result is that the injuries quoted above, caused by sharp weapon could fall under Section 324 IPC and certainly not under Section 326 IPC.
This Court has been apprised by Mr.P.S.Dhaliwal, counsel appearing for the son and wife of the complainant, that they have compromised the matter. As a matter of fact, complainant Dina Khan has died and their legal representatives i.e, his wife Shamin Begum and son Anwar have filed their separate affidavits, which are taken on record as Annexure A-1 and A-2, respectively, wherein, they have stated that all the matters between them and the accused - appellants have been compromised and now they have no grievance against any of the accused persons and that they have no objection if the accused - appellants are acquitted by this Court. It appears that the parties in order to purchase peace and to revive their social relations, want to wash off their differences.
Heard. In such like situation, Clauses (6) and (8) of Section Criminal Appeal No.1036-SB of 1999(O&M) [6] 320 of the Code of Criminal Procedure can be invoked, which deal with the powers of the Court to compound the offences. The aforesaid clauses of Section 320 CrPC are reproduced as under:-
"(6) A High Court or Court of Sessions acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this Section.
(8) The composition of an offence under this Section shall have the effect of an acquittal of the accused with whom the offence has been compounded."
Thus, in view of sub-section (8) ibid, the composition of the offence herein shall have the effect of an acquittal of the accused - appellants as the offence has been compounded with the son and wife (i.e. legal heirs) of the complainant, during the pendency of the appeal. Similar view was taken by the Apex Court in case Moreshwar vs. State of Maharashtra and another, (2006) 1 Supreme Court Cases (Criminal)
781. For the aforesaid reasons, the impugned judgment of conviction is set aside and the accused are acquitted of the charges framed against them. The fine, if any, deposited by them be refunded.
Copy of the order be sent to Chief Judicial Magistrate, Sangrur for compliance.
February 09, 2010 ( A.N.JINDAL ) `gian' JUDGE