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 6
I 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
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