High Court Punjab-Haryana High Court

Jagdev Singh And Another vs State Of Punjab on 14 January, 2009

Punjab-Haryana High Court
Jagdev Singh And Another vs State Of Punjab on 14 January, 2009
           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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