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2001 DIGILAW 26 (PNJ)

Gurmail Singh v. State of Punjab

2001-01-05

V.K.BALI

body2001
ORDER V.K. Bali, J. (Oral) - Darshan Singh and his son, namely, Gurmail Singh have filed this revision calling in question order of conviction and sentence recorded against them by the Chief Judicial Magistrate, Jalandhar dated January 17, 1987, whereby they were held guilty under sections 326/34 Indian Penal Code. Whereas, Gurmail Singh was sentenced to undergo RI for one year and to pay fine of Rs. 1000/-, or in default thereof to further undergo RI for three months under Section 326 Indian Penal Code, Darshan Singh was sentenced to undergo RI for six months and to pay fine of Rs. 500/-, or in default thereof to further undergo RI for two months, under Section 326 read with Section 34 Indian Penal Code. This order of the conviction and sentence recorded against the petitioners has since been upheld by the Additional Sessions Judge, Jalandhar vide order dated July 8, 1987. As mentioned above, it is against these two orders that present revision has been filed. 2. Brief facts of the case reveal that petitioner Darshan Singh is real brother of Shankar Singh injured, whereas, as mentioned above, Gurmail Singh petitioner is son of Darshan Singh. Shankar Singh injured was employed as Khalasi in the Railways Workshop at Jalandhar Cantt. On November 1, 1983, after duty hours, he left for his native village on his cycle. When he reached at the outstricks of village, he was joined by his son Dilbag Singh and wife Jagir Kaur who were returning home from the fields. Shankar Singh got down from his cycle and started walking on foot towards their house. When they had covered a short distance, they were confronted by Darshan Singh. Shankar Singh injured asked for his Sohaga from the said petitioner. The reply given by Darshan Singh petitioner was taunting and he stated that he would return something more than Sohaga. He raced to his house. Shankar Singh, his son and wife proceeded ahead and when they reached near the house of the petitioners, Darshan Singh petitioner raised an alarm exhorting Gurmail Singh to teach a lesson to Shankar Singh for demanding Sohaga. Upon that, Gurmail Singh gave a Gandasi blow on Shankar Singh which landed on his left arm. Another blow was given with the same weapon on the left upper arm of Shankar Singh, who fell down and raised an alarm. Upon that, Gurmail Singh gave a Gandasi blow on Shankar Singh which landed on his left arm. Another blow was given with the same weapon on the left upper arm of Shankar Singh, who fell down and raised an alarm. The petitioners are then stated to have left the spot. insofar as injured is concerned, he was taken to the hospital at Jalandhar where he was medically examined and admitted there. 3. The prosecution, in its endeavour to bring home the offence against the petitioners, examined Shankar Singh injured as PW1, Dilbag Singh as PW2, Dr. S.D. Chitkara as PW3 and Dr. K.S. Purewal as PW4. 4. When examined under Section 313 Criminal Procedure Code, petitioners stated that Lachhman Singh, who is real brother of Darshan Singh, was issueless and he had transferred his landed property in favour of sons of Darshan Singh which was not to the liking of injured Shankar Singh and it is for that reason that petitioners have been implicated in this case. They, however, led no evidence in defence. 5. Before this Court might evaluate the contentions raised by the learned counsel for the petitioners, it would be useful to mention that the occurrence, according to the prosecution, had taken place on November 1, 1983 at 6.30 PM whereas FIR with regard to the incident came to be lodged on November 5, 1983 at 11.30 AM. 6. Mr. Punia, learned counsel for the petitioners vehemently contends that the prosecution came up with a false story simply on account of grudge entertained by injured Shankar Singh on account of property of third brother having been transferred to the sons of Darshan Singh and petitioners in this case are absolutely innocent. With a view to substantiate his plea, as noted above, learned counsel contends that there is delay of about four days in lodging the FIR and no explanation is forthcoming for such a delay. The injured and other witnesses, thus, had enough time to concoct a false story and implicate the petitioners. It may be mentioned at this stage that the contention of learend counsel with regard to delay in lodging the FIR was repelled by the courts below on the ground that Shankar injured was unable to make statement all this while, i.e., from the time he got injured and till such time FIR was actually recorded by the police. It may be mentioned at this stage that the contention of learend counsel with regard to delay in lodging the FIR was repelled by the courts below on the ground that Shankar injured was unable to make statement all this while, i.e., from the time he got injured and till such time FIR was actually recorded by the police. It appears to this Court that the finding to the effect aforesaid has been recorded only on the basis of statement made by PW4 Dr. K.S. Purewal. It may be mentioned that insofar as injured Shankar Singh is concerned, he was examined by Dr. S.P. Gupta, and this doctor was not produced in witness box by the proseuction. It is his writing to the effect that Shankar Singh was unable to make a statement that was proved by PW4 Dr. K.S. Purewal. It is clear from reading of the evidence that insofar as Dr. S.P. Gupta is concerned, he could not be cross-examined having not been produced in the witness box at all. The proof of handwriting of Dr. S.P. Gupta by Dr. K.S. Purewal PW4 to the effect that Shankar Singh injured was unable to make statement, cannot be siad to have proved the fact that in fact and reality Shankar Singh was unable to make statement. Moreover, injury to Shankar Singh was on the left forearm and it does not appear to be of that kind that Shankar Singh might have been unconscious for so many days. The matter does not rest there as the son of Shankar Singh, namely, Dilbag Singh PW2, when cross-examined stated that his father remained conscious throughout and he had never become unconscious. PW3 Dr. S.D. Chitkara also stated that Shankar Singh was fully conscious when he was brought to the hospital. It requires to be mentioned here that PW2 Dilbag Singh son of Shankar Singh, as per the prosecution version, was with him at the time of incident and had taken him to the hospital and, as per his version, had stayed with him all through. Insofar as Jagir Kaur is concerned, she has not been even examined. From the facts, as given above as also that the prosecution story from its very inception seems to be improbable, in view of this Court, no conviction could be recorded against the petitioners. Insofar as Jagir Kaur is concerned, she has not been even examined. From the facts, as given above as also that the prosecution story from its very inception seems to be improbable, in view of this Court, no conviction could be recorded against the petitioners. As per the prosecution version, injured was going on a cycle after working hours and at the outskirts of the village, his wife and son met him. True, these two, i.e., wife and son of Shankar Singh were returning from fields, but the prosecution did not bring on record to suggest that the way to home of injured from office and of these two witnesses from fields to their house, would be common. It was, therefore, a chance meeting of these three when the occurrence took place. That apart, there does not appear to be any motive for this crime as well. Even though, it is true that when the occurrence as such is proved, presence of motive or otherwise pales into insignificance, but in the present case, as mentioned above, fight is between two brothers and provocation for the occurrence is demand made by the injured from his brother of his Sohaga. How could such a demand be provocative for another brother to take law into his hands, is wholly un-understandable. Quite to the contrary, there appears to be some motive on the part of the complainant partry to involve his brother in a criminal case. It is admitted by none other than Shankar Singh when he was examined as PW1 that another brother, namely Lachhman Singh, who was unmarried and issueless, had transferred his land at to the sons of Darshan Singh petitioner. From the prosecution version, emanating from the statement made by Shankar Singh while lodging the FIR as also other attending circumstances, as have been mentioned above, as also the delay in lodging the FIR, considerable doubt arises in the mind of the Court and that in itself is enough to give the petitioners benefit of doubt. 7. For the reasons mentioned above, this revision is allowed. Impugned orders of conviction and sentence recorded by the learned trial Magistrate, which have since been confirmed by the appellate Court, are set aside. Petitiones are on bail. They shall be discharged of their bail bonds. Revision allowed.