CRIMINAL APPEAL None on 24 October 1998

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH.

CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA

***Present:Mr.Pritam Saini, Advocate andMr.Rahul Vats, Advocate for the appellants.Mr.Sandeep S. Mann, Sr. DAG, Haryana.

***

KANWALJIT SINGH AHLUWALIA, J. (ORAL)

By this common order Criminal Appeal No.97-SB of 2002preferred by Palli, Ballu and Kalu @ Jai Kishan sons of Shukla, RamKrishan son of Sukhiya, Sukhiya son of Sudha and Jagbir son of Dharmaand Criminal Appeal No.147-SB of 2002 preferred by Mahabir son of

Shukla and Ram Kumar son of Dharma shall be decided together. They allwere named as accused in a case FIR No.315 dated 24.10.1998 registered atPolice Station Sadar Panipat under Sections 323, 324, 325, 307, 148 and149 IPC. The above-said FIR was investigated. Report under Section 173Cr.P.C. was submitted in the trial Court and the accused were committed tothe Court of Additional Sessions Judge, Panipat, who vide his judgmentdated 5.1.2002 held them guilty of offence under Sections148,307,325,324,323 read with Section 149 IPC and vide a separate order ofeven date sentenced them as under:- “3.Heard. Since the convicts were armed with deadlyweapons i.e. Lathi, Jaili and Gandasi at the time of thecommission of offence of rioting, therefore, I sentence all theconvicts to undergo R.I. for a period of one year each for thecommission of offence punishable under Section 148 IPC. Ialso sentence all the convicts to undergo R.I. for a period ofseven years each and a fine of Rs.1000/- each (Rupees onethousand each only) for the commission of offence punishableunder Section 307/149 IPC. In default of payment of fine, theconvict shall further undergo R.I. for a period of two months. Ialso sentence the convict to undergo R.I. for a period of threeyears each and a fine of Rs.250/- each (Rupees two hundredand fifty each only) for the commission of offence punishableunder Section 325/149 IPC. In default of payment of fine, theconvicts shall undergo further R.I. for a period of 15 days. Ialso sentence all the convicts to undergo R.I. for a period oftwo years each for the commission of offence punishable underSection 324/149 IPC. I also sentence all the convict toundergo R.I. for a period of nine months each for thecommission of offence punishable under Section 323/149 IPC.In case, the fine is recovered, out of the same, an amount ofRs.8000/- would be paid to Smt.Om Pati and Om Parkashequally. However, the sentences awarded to the convict will run concurrently....”

The present appeals are directed against the judgment ofconviction and order of sentence.

Criminal proceedings were set into motion on a statementEx.P19 made by Gulab Singh PW8. Gulab Singh aged 18/19 years statedthat he is a resident of Village Kurar and was a student of 10+2. On23.10.1998 at about 6.00 P.M. he accompanied by his mother and mother'ssister Om Pati was going towards their Gher. When they were passingthrough the Barra of Zile Ram son of Hoshiara, accused Mahabir asked as towhy Om Pati was going through their Barra. In the meantime, all otheraccused arrived at the scene. Mahabir and Jagbir were armed withGandasies and remaining accused were armed with Lathies. They formedan unlawful assembly. On the lalkara raised, Mahabir gave a gandasi blowon the head of Om Pati. Ram Kishan son of Sukhiya gave a lathi blow onthe head of Om Pati. Thereafter Palli gave a Zaili blow on the head of OmPati. On receiving these injuries, Om Pati fell down on the ground.Thereafter Mahabir, Ballu, Palli, Ram Kishan, Sukhiya, Ram Kumar andJagbir also caused injuries to Om Pati with their respective weapons. In themeantime, Om Parkash son of Parbhu reached the spot. He tried to rescueOm Pati. At that time, Mahabir gave a Gandasi blow on the head of OmParkash, as a result of which Om Parkash fell down on the ground.Thereafter, all the accused caused injuries to Om Pakarsh with theirrespective weapons. The complainant raised an alarm which attractedSubhash and Bassa on the spot. They rescued Om Pati and Om Parkashfrom the accused and thereafter the accused ran away from the spot alongwith their respective weapons. ASI Rattan Singh PW10 received a ruqa

from Chaudhary Hospital, Panipat regarding admission of Om Pati and OmParkash and reached the hospital where statements of Om Pati and OmParkash were recorded. As stated earlier the above-said FIR wasinvestigated. Challan was submitted and the case was committed to theCourt of Additional Sessions Judge, Panipat.

Additional Sessions Judge, Panipat charged all the accusedunder Section 148 IPC for having constituted unlawfully assembly, as theywere armed with deadly weapons like Jaili and Gandasi etc. for causinginjuries to Om Pati and Om Parkash. All the accused were also charged foroffence under Section 307/149 IPC for causing injuries to Om Parkash.They were also charged for offence under Section 325/149 IPC for causinggrievous injuries to Om Pati. They were charged for offences underSections 324/149 IPC and 323/149 IPC for having causing injuries to OmPati and Om Parkash. They did not plead guilty and claimed trial.

Dr.Satish Chaudhary PW5 on 23.10.1998 had sent a ruqa toPolice Station Sadar Panipat regarding arrival of Om Pati and Om Parkashin an injured condition. Ruqa has been proved as Ex.P5. On the same day,this witness examined Om Parkash and found the following injuries on hisperson:- “1.Stellar shape wound with lacerated margins over rightparietal region scalp 4x4 cm dia meter with centre 2 cmdeep. Lenier fracture of underlying skull anteroposteriorly seen through the wound about 2 cm long.parietal region scalp 4x4 cm dia meter with centre 2 cmdeep. Lenier fracture of underlying skull anteroposteriorly seen through the wound about 2 cm long.

2. Right hand:a) clean incised wound 2x1/4cm x 1/4cm deep middlefinger.a) clean incised wound 2x1/4cm x 1/4cm deep middlefinger.

b) clean incised wound 4 x 1/4[th] x ½ cm deep ring finger.

c) clean incised wound 2 x ½ x 1/4[th] cm deep little finger.

A, B., C obliquely placed over proximal phalanges in line with each other.

3. Clean incised wound right shoulder anteriorly 2 x ½ x1/4[th] cm deep.1/4[th] cm deep.

4. Contusion right arm at insertion of deltoid muscle 3 x1cm.1cm.

5. Contusion right chest anteriorly memory region 10 x10cm.10cm.

6. Abrasion ½ x ½ cm over contusion 3 x 3cm over left eyebrow.brow.

Injury No.1 was declared dangerous to life. Injuries No.4 and 6 were declared grievous and the remaining injuries were declared simple.

On the same day, this witness examined Om Pati and found the following injuries on her person:-

1. Clean lacerated wound fronto parietal region, left side ofskull, 5 x 1/4[th] x 2cm deep.skull, 5 x 1/4[th] x 2cm deep.

2. Swelling left hand 5[th] meta-carpal neck with puncturewound ½ x 1/4[th] x 1/4[th] cm deep. Swelling 3 x 3cm.wound ½ x 1/4[th] x 1/4[th] cm deep. Swelling 3 x 3cm.

3. Swelling right fore-arm middle with step over ulna.

4. Clean lacerated wound Ist web space right hand 3 x 1 x1cm deep.1cm deep.

5. Lathi contusion 10 x 3cm over left anterior superior iliaccrest.crest.

6. Lathi abrasion left arm deltoid region 6 cm x 3 cm.7.Lathi contusion left infrascapular region 30 x 3cm.7.Lathi contusion left infrascapular region 30 x 3cm.

8. Lathi abrasion left lumbar region 6 x 3cm horizontal.

Injuries No.2 and 3 were declared grievous and the remaining injuries were declared simple in nature.

The author of the FIR Gulab son of Ram Sarup appeared as PW8 and had not supported the prosecution case. He was declared hostile.He was confronted with his previous statement Ex.P19, on the basis ofwhich FIR was registered.

Bassa son of Om Parkash appeared as PW1 and supported theprosecution case.

Om Pati appeared as PW2 and reiterated the entire occurrence.Om Parkash another injured appeared as PW3.

PW4 HC Rajinder Kumar was joined by the InvestigatingOfficer, who took into possession blood stained earth vide recovery memoEx.P1 and other weapons vide recovery memos Ex.P2, P3 and P4 fromaccused Kalu, Ram Kumar and Palli.

PW 6 Ratna son of Prabhu was also a witness to the recovery ofweapon from another accused.

Constable Jagbir Singh PW7 had prepared the scaled site planEx.P18.

PW 9 Krishan Chander ASI proved registration of formal FIREx.P19/1.

PW 10 SI Rattan Singh who was the Investigating Officernarrated the entire occurrence. Thereafter, the prosecution closed itsevidence.

Statements of the accused were recorded under Section 313Cr.P.C. They denied all incriminating circumstances put to them. They hadnot divulged any defence version. However, in defence Jia Lal, Numberdarof the village was examined who stated that about three years ago somescuffle took place between Parkash party and the accused party but he wasnot able to divulge the details of occurrence due to darkness.

Dr.S.K.Gupta DW2, Medical Officer, Civil Hospital, Panipaton the day of occurrence i.e. 23.10.1998 examined Sukhiya and found threeinjuries on his person. On the same day, he examined Mahabir and found

five simple injuries on his person. Injury No.5 was on the skull. Thiswitness also found three injuries on the person of Palli. All the injurieswere simple in nature. On the same day, at 11.15 P.M., this witnessexamined Palla son of Sukhiya and found two injuries on his person. Thiswitness stated that all the injuries on the person of Sukhiya, Mahabir, Palliand Palla were simple in nature.

Pale Ram DW3 Sarpanch of the village stated that on23.10.1998 there was a fight between the accused and the complainantparty. Four persons had participated from the side of accused and 6/7persons from the side of the complainant.

Satyawan DW4 also stated that there was fight between the parties.

Mr.Pritam Saini, learned counsel appearing for the appellantshas stated that in the present case the complainant party was aggressor.They had caused injuries to three accused-appellants. Accused party hadsuffered fourteen injuries. The complainant party has offered noexplanation regarding the injuries suffered by the accused party. It is statedthat as the complainant party has caused injuries to the accused party andnon explanation of the injuries suffered by them should also be construedas fatal to the prosecution, this Court should hold that complainant partywas aggressor and the accused party had acted in self defence.

I have examined the nature of injuries suffered by the accused.Even though two injuries are on head, all injuries were declared simple innature. Most of the injuries are complain of pain. Not only the injuriessuffered by the accused are simple in nature but they are superficial also.Hence, this argument that accused acted in self defence is liable to be

rejected. Prosecution was not bound to explain the kind of injuries sufferedby the accused.

Counsel for the appellants has further submitted that it hascome in the statement Ex.P19 made by Gulab that he accompanied by hismother and aunt Om Pati were going towards their Khet. When they passedthrough the Barra of Zile Singh, the occurrence had taken place. Counselsubmits that no witness has given the reason as to why the occurrence tookplace. Genesis and origin of the occurrence is shrouded in the mystery. It isstated that no motive has been spelt out. When this Court asked the counselfor the State that as to how the occurrence had taken place, he stated thatoccurrence was a sudden fight as the same took place when Om Patialongwith her sister were passing through the Barra of Zile Singh. It hascome in the evidence of DW3 Pale Ram, Sarpanch of the Village that a fighthad taken place between the accused and the complainant party. This facthas been further corroborated by DW4 Satyawan, Chowkidar of the village.On the day of occurrence, accused Sukhiya, Mahabir and Palli wereexamined by DW2 Dr.S.K.Gupta. Palla son of Sukhiya also sufferedinjuries in the occurrence. Therefore, it is sufficient to hold that on the spurof moment without any pre-mediation a sudden occurrence had ensued.That being so, it cannot be said that accused constituted an unlawfulassembly. Hence, Section 148 IPC is not attracted in the present case. Eachaccused is responsible for the injuries caused by him. It is a case ofindividual liability. Injury No.1 on the person of Om Parkash having beendeclared as dangerous to life falls within the ambit of Section 307 IPC. OmParkash PW3 stated that Mahabir accused had given gandasi blow to him.Therefore, Mahabir is liable to be convicted under Section 307 IPC.

Injuries No.4 and 6 on the person of Om Parkash have been declared asgrievous. The author of these injuries has not been specified. Injuries No.2and 3 on the person of Om Pati have been declared as grievous. Om Patihas also not specified the author of these injuries. Grievous injuries on theperson of Om Parkash have been caused with a blunt weapon. Grievousinjuries suffered by Om Pati have also been caused by blunt weapons.Author of grievous injuries falling under Section 325 IPC is not known. Inthese circumstances, no accused can be substantially convicted for offenceunder Section 325 IPC, hence they are held liable for offence under Section323 IPC.

In view of the above discussion, it is ordered that accused-appellant Mahabir is held responsible for offence under Section 307 IPC,whereas the remaining accused-appellants are held responsible of offenceunder sections 323 IPC.

The occurrence in the present case had taken place in the year1998. A period of more than 12 years is going to elapse. Considering thefact that the accused had suffered mental pain and agony of protracted trial,the sentence is to be suitably reduced. Hence, accused-appellant Mahabir issentenced to undergo rigorous imprisonment for three years under Section307 IPC and a fine of Rs.15,000/-. In default of payment of fine, he shallfurther undergo rigorous imprisonment for nine months. All other accused-appellants who have been found guilty for offence under Section 323 IPC,taking into consideration long protracted trial and the fact that in the last 12years, no incident had taken place, this Court is of the view that they bereleased on probation for a period of one year, subject to their furnishingbonds to the satisfaction of Chief Judicial Magistrate, Panipat that during

the period of probation they shall maintain peace and be of good behaviourfor a period of one year. However, cost of litigation qua each accused isassessed at Rs.10,000/-. The amount of costs and fine so deposited shall bedisbursed to injured Om Parkash and Om Pati equally. In case costs oflitigation is not deposited, the benefit of probation shall not accrue to them.The costs shall be deposited by the appellants in the Court of Chief JudicialMagistrate, Panipat within three months from the date of receipt of acertified copy of this order.

With the aforesaid modification in the order of sentence, boththe appeals are disposed of.

( KANWALJIT SINGH AHLUWALIA )January 5, 2011. JUDGE

RC