CIVIL APPEAL None on 5 July 1996

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.

Crl.Appeal No.89-SB of 2002Date of decision:10.8.2010

Baldev Singh and others

versus

... Appellants

State of Punjab

... Respondent

CORAM:HON'BLE MR. JUSTICE JORA SINGH.

Present:Mr.Daleep Singh, Advocate,for the appellants.Mr.Arshvinder Singh, DAG, Punjab....

JORA SINGH, J.

Baldev Singh, Kaur Singh and Bhola Singh @ Balbir Singhfiled this appeal to impugn the judgment of conviction and order of sentence9.1.2002 rendered by Additional Sessions Judge, Bathinda, arising out ofFIR No. 50 dated 5.7.1996 under Sections 308/34 IPC, Police Station, Phul.

By the said judgment, they were convicted under Sections308/34 IPC and sentenced to undergo RI for four years and to pay a fine ofRs.1,000/-, in default of payment of fine, to further undergo RI for twomonths each.

Prosecution story,in brief, is that on 4.7.1996, Balwinder Singh,injured, was admitted in Civil Hospital, Rampura, and made statementbefore ASI Gurdip Singh to the effect that today, i.e., 4.7.1996 at about 8.00AM, he along with Bhola Singh from his brotherhood had gone to thisfields. When they were near the fields, then sighted Baldev Singh, BholaSingh and Kaur Singh while demolishing the watercourse meant to irrigatehis land. At that time, Baldev Singh was armed with a kasia. Accused were

requested not to demolish the watercourse, then Bhola Singh raised lalkarathat they will teach a lesson for preventing them from demolishing thewatercourse. Then Bhola Singh gave a kasia blow from its reverse sidehitting on the right hand side of his (Balwinder Singh) forehead. On receiptof kasia blow, Balwinder Singh fell down. Then Baldev Singh and KaurSingh gave fist blows to him. Raula was raised. Then accused had fledaway from the spot with their weapons. After arranging a tractor,Balwinder Singh was shifted to Civil Hospital, Rampura, where he wasmedico legally examined. Motive to cause injuries was demolition ofwatercourse. Statement (Ex.PL) after making endorsement by ASI GurdipSingh was sent to the concerned police station, on the basis of which, formalFIR was recorded. On 5.7.1996, in view of application, doctor gave hisopinion (Ex.PB/1).

On 6.7.1996, Investigating Officer had gone to the place ofoccurrence. Rough site plan with correct marginal notes was prepared.Blood stained earth produced by Bikkar Singh was taken into policepossession after the same was made into sealed parcel. On 9.7.1996,accused were arrested while present near Bus Stand, Rayia. Accused BholaSingh was interrogated and in pursuance of disclosure statement, he gotrecovered kasia from the specified place. Sketch of kasia was prepared andsame was made into a sealed parcel. Kasia was taken into police possessionvide separate memo attested by the witnesses. After completion ofinvestigation, challan was presented in the Court.

Accused were charged under Sections 308/34 IPC, to whichthey pleaded not guilty and claimed trial.

PW1 Dr. Rakesh Kumar Goyal stated that on 4.7.1996 at 9.30

AM, he had medico legally examined Balwinder Singh and found thefollowing injuries on his person:- “1.3 cm x 1-1 /2 cm lacerated wound on the right frontalregion irregular red in colour bleeding and underlyingfrontal bone seemed fractured and depressed. X-ray wasadvised.region irregular red in colour bleeding and underlyingfrontal bone seemed fractured and depressed. X-ray wasadvised.

2. Black eye right side.”

Injury No.1 was kept under observation and as per x-ray report,injury was declared dangerous to life. Probable time of the injuries was 12hours.

PW2 Dr.R.K.Kaushal brought bed head ticket of the injuredand stated that injured was admitted in the hospital on 6.7.1996 at 8.20 PM.Patient had injury on the right side of his forehead. CT Scan of headshowed depressed fracture of the right frontal bone. Eye was black at thattime. Injury was dangerous to life. Injured was discharged on 15.7.1996.

PW3 Balwinder Singh is the injured and stated that he alongwith Bhola Singh was present near his fields, then noticed the appellantswhile demolishing watercourse meant to irrigate his land. Accused wererequested not to demolish the watercourse. Then Bhola Singh gave kasiablow from its blunt side on the right side of his forehead. On receipt ofinjuries, he fell down. Then Baldev Singh and Kaur Singh gave fist blows.Raula was raised. Then the accused had fled away from the spot with theirweapons. After arranging vehicle, he was shifted to Civil Hospital,Rampura, where he was medico legally examined.

PW4 Bhola Singh is the eye witness and supported the versionof Balwinder Singh by saying that in his presence, accused had given

injuries to Balwinder Singh.

PW5 HC Harbhajan Singh was with the police party headed byASI Gurdip Singh. When Bikkar Singh produced blood stained shirt ofBalwinder Singh, same was taken into police possession vide separatememo attested by the witnesses, after converting it into a sealed parcel.Statement of Bhola Singh was also recorded. Appellants were arrestedwhile present near Bus Stand of Rayia. In pursuance of disclosurestatement, Bhola Singh got recovered kasia from the specified place.Sketch of kasia was prepared and taken into police possession.PW6 HC Gurmail Singh had delivered special report to theIlaqa Magistrate.

PW7 Inspector Bhupinder Singh stated that he had partlyinvestigated this case. On 26.7.1996, he had recorded the statements ofAMHC Gurparminder Singh and Constable Paramjit Singh.

PW8 ASI Gurdip Singh is the Investigating Officer.

PW9 Dr. Baldev Singh stated that on 4.7.1996, he hadexamined x-ray report of Balwinder Singh. Depressed fracture of rightfrontal bone was noticed. Ex.PU is the ex-ray report.

After close of the prosecution evidence, statements of accusedunder Section 313 Cr.P.C. were recorded. They denied all the prosecutionallegations and pleaded to be innocent.

Defence version of Kaur Singh was that he was innocent,whereas defence version of Baldev Singh and Bhola was that BalwinderSingh and his relations had forcibly constructed watercourse in their fieldson the intervening night of 3/4.7.1996 and had irrigated the land ofBalwinder Singh from the motor of Nachattar Singh. Water started flowing

through their fields. They along with Kaur Singh had gone to the fieldswith bullock cart. Bullock cart had entered that watercourse in order to goto their fields. Watercourse had split out. Balwinder Singh grappled withthem. Baldev Singh was thrown on the ground in the passage and startedgiving fist and knee blows while sitting on his (Baldev Singh) chest, as aresult of which, 2 teeth of Baldev Singh were broken. Balwinder Singhtried to strangulate Baldev Singh, then Bhola Singh gave a dang blow onthe forehead of Balwinder Singh in order to save Baldev Singh. After that,Balwinder Singh and his relation went away. Baldev Singh was brought toCivil Dispensary, Phul, where he was medico legally examined. Matter wasreported to ASI Gurdip Singh, but he did not record the statement of BaldevSingh because he was conniving with the opposite party. False case wasgot registered against them After hearing learned Public Prosecutor for the State, learneddefence counsel for the appellants and from the perusal of evidence on file,appellants were convicted and sentenced as stated aforesaid.

I have heard learned defence counsel for the appellants, learnedState counsel and have gone through evidence on file.

Learned counsel for the appellants argued that according to theprosecution story, watercourse was constructed to irrigate the land ofBalwinder Singh from the motor of Bachittar Singh. Watercourse wasdemolished by the appellants. When complainant party requested theappellants not to demolish, then appellants had given injuries to BalwinderSingh, but, in fact, watercourse was constructed in the land of the appellantson the intervening night of 3/ 4.7.1996 and through that watercourse,Balwinder Singh had irrigated his land. At the time of occurrence, water

was flowing through the fields of appellants. Baldev Singh and BholaSingh had gone to their fields. Their bullock cart entered into thatwatercourse. When watercourse split out, then Balwinder Singh and BholaSingh had grappled with appellant Baldev Singh. Baldev Singh was givenfist and knee blows. Balwinder Singh tried to stringulate Baldev Singh,then Bhola Singh gave danda blow. Argued that Kaur Singh was notpresent at the spot. Baldev Singh as per prosecution story had given fistblows to the complainant but no injury was noticed at the time of medicolegal examination of Balwinder Singh. Only one injury was noticed on theperson of Balwinder Singh. Second injury was the result of injury No.1. Ifappellants had the intention to commit the crime, then blow should havebeen given from the right side of kasia. There was no idea to give blowfrom its reverse side. Blow was not repeated. No offence punishable underSection 308 IPC is made out. Injury was caused by appellant Bhola Singhwhen complainant party tried to strangulate Baldev Singh. In defence,Bhola Singh gave danda blow. If the Court is of the opinion that injury wascaused by Bhola Singh, then he is liable for punishment under Section 325IPC and not under Section 308 IPC. To convict the appellants underSection 308 IPC, appellants should have the intention and knowledge tocause injuries. There was a sudden fight amongst the parties. Occurrence isdated 4.7.1996. At that time, Baldev Singh was 64 years' old, Kaur Singhwas 26 years' old, whereas Bhola Singh was 32 years' old. Baldev Singhand Kaur Singh, as per prosecution story, had given fist blows. BaldevSingh and Kaur Singh have already undergone one month and twenty fivedays, each out of actual sentence, whereas Bhola Singh has alreadyundergone three months and eleven days. Appellants are ready to

compensate the injured. Requested to take lenient view qua sentence.

Learned State counsel argued that there was a watercourse bythe side of land of appellants and through that watercourse, complainanthad irrigated his land. Allegation of appellants is that watercourse wasconstructed on the intervening night of 3/ 4.7.1996. Land was irrigated andwhen bullock cart of the appellants had entered into that watercourse, thenwater had split out. Balwinder Singh, injured, had grappled with BaldevSingh and when he tried to strangulate him, then to save Baldev Singh,Bhola Singh gave danda blow. That means, Baldev Singh and Bhola Singhwere very much present at the time of occurrence. No dispute about thepresence of Balwinder Singh and eye witness Bhola Singh.

Balwinder Singh and Bhola Singh, while appearing in Court,then categorically stated that on 4.7.1996 at 8.00 AM, appellants had causedinjuries. Earlier to the occurrence, there was no dispute amongst theparties. Dispute was regarding demolition of watercourse. Withoutprevious enmity, there was no idea to name the appellants. Injury No.1 onthe person of Balwinder Singh was found to be dangerous to life. Injurywas from the back side of kasia, but injury was on the forehead. If BholaSingh had no intention to cause injury, then injury could easily be caused onthe non-vital part of body. Blow was given with an intention to murder.Appellants had the knowledge that when injury on the head, then death is tooccur. Appellants were rightly convicted under Section 308 IPC.

Evidence on file shows that land of complainant party was nearthe land of the appellants. There was a watercourse adjoining the land ofthe appellant and this fact is clear from the site plan. No documentaryevidence on file that watercourse was in the land of the appellants. If

watercourse was in the land of the appellants, then copies of khasragirdwari, jamabandi or aks shijra could easily be produced to show thatthere was a watercourse in the land of the appellants. No suggestion to thewitnesses that watercourse was in the land of the appellants. Noindependent witness came forward to state that watercourse was constructedduring night time and was in the land of the appellants. Statements ofinjured and the eye witness, coupled with rough site plan on file show thatwatercourse was not in the land of the appellants, but was in the passage toirrigate the land from the motor of Bachittar Singh.

Balwinder Singh and Bhola Singh when appeared in Court,then stated that when they were present at the spot at 8.00 AM, then sightedappellants while demolishing watercourse. When they requested theappellants not to demolish the watercourse, then injuries were caused toBalwinder Singh, but allegation of the appellants was that watercourse wasconstructed during night time and when their bullock cart had entered intowatercourse while going to their fields, then water had split out. After that,there was a fight amongst the parties. As per defence version, Baldev Singhand Bhola Singh were present at the spot. When Balwinder Singh tried tostrangulate Baldev Singh, then Bhola Singh gave danda blow, but noquestion to the doctor that injury noticed on the person of Balwinder Singhwas possible with danda. Balwinder Singh and Bhola Singh were presenton the spot. Only dispute is whether Bhola Singh gave danda blow to saveBaldev Singh or appellant Bhola Singh had given kasia blow to BalwinderSingh when he was requested not to demolish watercourse. Injury on theforehead cannot be self suffered or self inflicted. Baldev Singh and KaurSingh gave fist blows but only two injuries were noticed on the person of

Balwinder Singh. Injury No.2 was the result of injury No.1. Injury No.1was with a kasia blow by Bhola Singh. When fist blows are given, thenapparently no injury is to be noticed on the person of injured. Dispute isregarding presence of Kaur Singh only but earlier to the occurrence,complainant party had no enmity with Kaur Singh. Kaur Singh is thebrother of Bhola Singh, main accused. So, presence of Kaur Singh at thespot cannot be doubted. If intention of complainant was to implicate theappellants, then it was very easy for the complainant party to levelallegation that Kaur Singh was armed with soti and gave blow. After goingthrough the evidence on file, I am of the considered view that appellantswere present at the time of occurrence and had caused injuries to BalwinderSingh.

Evidence shows that only one kasia blow from its reverse sidewas given hitting on the forehead of Balwinder Singh. Blow was notrepeated. Baldev Singh and Kaur Singh gave fist blows. Occurrence was at8.00 AM. Immediately after the occurrence, injured was shifted to thehospital and at 9.30 AM on the same day, Balwinder Singh was medicolegally examined. Intimation was also given to the concerned police stationby sending ruqa (Ex.PC). After receipt of information, InvestigatingOfficer had gone to Civil Hospital, Rampura, where statement of BalwinderSingh was recorded. According to Dr. Rakesh Kumar Goyal , two injurieswere noticed on the person of Balwinder Singh. Injuries were kept underobservation and after x-ray,injury No.1 was declared dangerous to life.Admittedly, injured was conscious when mdico legally examined. InjuryNo.2 was the effect of injury No.1. Injured had left the ward on 5.7.1996.On 6.6.1996, injured was admitted in DMC, Ludhiana, and this fact is clear

from the statement of Dr. R.K.Kaushal, Neurosurgeon. Admission was at8.20 PM on 6.7.1996. CT Scan of the head showed depressed fracture ofthe right frontal bone. As per Dr. Kaushal, injury was dangerous to life. Nodoubt, in cross-examination, Dr.Kaushal stated that in the bed head ticket,no reference that life of patient was ever in danger. Injured Balwinder Singhin examination-in-chief admitted that Baldev Singh, appellant is his uncleand while appearing as PW did not state a word that after receiving injuries,he became unconscious.

So, in view the of statements of injured, eye witness and thedoctors, one thing is clear that only one injury was on the person ofBalwinder Singh with a kasia blow from its reverse side, but injury wasdeclared dangerous to life.

Learned defence counsel for the appellants cited 2010 (3) RCR

(Crl.) 395, Pritam Singh and another vs. State of Punjab. In this case,accused gave stab wound on the abdomen of victim with a small kirpan-Opinion of doctor that injury could be dangerous to life-No offence underSection 307 IPC made out. But the above cited authority is not helpful tothe appellants to hold that appellants are liable for offence punishable underSection 325 IPC and not under Section 308 IPC. Kasia was a dangerousweapon. Although from the back side of kasia, Bhola Singh gave blow, butblow was on the forehead of Balwinder Singh. When a blow is given with adeadly weapon hitting the head, that means accused had the intention tomurder. Accused cannot argue that he has no knowledge that when injurywith a sharp edged weapon on the head, then no question of death. Doctorsin the present case specifically stated that injury was x-rayed and as per x-ray report, depressed fracture of the right frontal bone was detected. After

CT Scan of head, injury No.1 was declared dangerous to life. Doctors didnot state a word that injury noticed could be dangerous to life. Both thedoctors were cross-examined by the defence counsel. No suggestion to thedoctors that injury noticed could be dangerous to life and was notdangerous to life. After the occurrence, injured was shifted to CivilHospital,Rampura, where he remained admitted upto 5.7.1996. Theninjured was shifted to DMC,Ludhiana, and remained admitted there upto15.7.1996. Evidence on the file was rightly scrutinized by the trial Court toopine that appellants are liable for punishment under Sections 308/34 IPC.

Occurrence is dated 4.7.1996. Only one injury was caused andthat too from reverse side of kasia. Complainant party is related to theappellants. Land of complainant party was near the land of appellants.Minor dispute regarding irrigation of land by constructing a watercourse.After the present occurrence, appellants did not commit any such act.Baldev Singh was 64 years' old, Kaur Singh was 26 years' old, whereasBhola Singh was 32 years' old. Baldev Singh and Kaur Singh have alreadyundergone one month and twenty five days, each out of actual sentence,whereas Bhola Singh has already undergone three months and eleven days.Appellants have suffered agony of protracted trial for the last about 14years. Appellants are to become hard criminals if again sent to jail to serveimprisonment as ordered by the trial Court.

State of Punjab,conviction was under Section 306 IPC. Suicide by awoman. Father-in-law and mother-in-law were the accused. Father-in-lawalready died. Mother-in-law was about 73-74 years' old. Incident was 13years old. Sentence of mother-in-law reduced to already undergone (one

month).

In 2004(3) RCR (Crl.) 372, Maha Singh and others vs. State ofHaryana, conviction was under Section 307 IPC. Accused faced trial andappeal for 15 years. Accused were 71 years, 60 years and 48 years old,respectively. Sentence was reduced to already undergone (three months).

In 2004(4) RCR (Crl.) 514, Gurdip Singh and others vs. Stateof Punjab, conviction was under Section 307 IPC. Appellants had alreadyundergone some part of sentence. They were living peacefully and have notparticipated in any such act after the occurrence. Held that sending theappellants to jail once again after the lapse of so many years would amountto reopening the wounds which might have healed by now. Sentence wasreduced to already undergone, but fine was enhanced from Rs.1,000/- toRs.10,000/-, to be paid to the injured.

Keeping in view the facts of the present case, I am of theopinion that ends of justice would be fully met if lenient view is taken.Appellants are directed to undergo imprisonment already undergone (onemonth and twenty five days each in case of Baldev Singh and Kaur Singhand three months and eleven days in case of Bhola Singh). Appellants arefurther directed to deposit Rs.20,000/- more each as fine within two monthsbefore the trial Court, payable to the injured as compensation.

For the reasons recorded above, appeal without merit isdismissed with the modification qua sentence.

10.8.2010

pk

( JORA SINGH )JUDGE