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2004 DIGILAW 394 (PNJ)

Balbir Singh v. State of Haryana

2004-03-31

JASBIR SINGH

body2004
JUDGMENT Jasbir Singh, J. - Appellants/accused, by filing this appeal, have laid challenge to the judgment and order dated 3.3.1992, vide which they were found guilty and convicted for commission of offence punishable under Section 307 read with Section 34 Indian Penal Code and also offence under Section 324 read with Section 34 Indian Penal Code, for causing injuries to Jeet Singh and Wajir Singh (PWs). Appellants No. 1 and 2 were also found guilty for commission of an offence punishable under Section 27 of the Indian Arms Act, 1959. Regarding sentence, following order was passed by the trial court :- "Accordingly accused Balbir Singh, Jara Singh @ Hazara Singh, Karnail Singh and Jasbir Singh are sentenced to undergo Rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/- each, or in default of payment of fine, the defaulter to further undergo Rigorous Imprisonment for six months, under- section 307 read with section 34 of the Indian Penal Code. All the accused are also sentenced to undergo Rigorous Imprisonment for 6 months and to pay fine of Rs. 200/- each or in default of payment of fine, the defaulter to further undergo Rigorous Imprisonment for two months, under-section 324 read with section 34 of the Indian Penal Code. Accused namely Balbir Singh and Jora Singh @ Hazara Singh are further to undergo Rigorous Imprisonment for two years, under-section 27 of the Indian Arms Act." 2. Both appellants and the injured were residents of village Niharsi. It was case of the prosecution that on 13.1.1987, Mehar Singh, Sarpanch of that village had hosted a dinner to celebrate Lohri on account of birth of grand son of his brother Labh Singh. All the appellants/accused had gone to participate in that celebration. Complainants/injured were also invited. After finishing their dinner, Wajir Singh and Jeet Singh had left for their houses. 3. At 8.00 p.m. when they reached near tree next to the house of Sarpanch, they found all the four appellants/accused standing there. Appellant Balbir Singh, on seeing them, started giving abuses. Appellant Karnail Singh raised on exhortation that they be taught a lesson for entering fight with them which had taken place last year on account of taking forcible possession of a manure pit by the complainant party. After this, Karnail Singh caught hold of Jeet Singh from his long hair. Appellant Balbir Singh, on seeing them, started giving abuses. Appellant Karnail Singh raised on exhortation that they be taught a lesson for entering fight with them which had taken place last year on account of taking forcible possession of a manure pit by the complainant party. After this, Karnail Singh caught hold of Jeet Singh from his long hair. When Wajir Singh tried to rescue his uncle, Jagir Singh, appellant caught hold of him from his long hair. Appellant Jara Singh @ Hazara Singh took out a knife from his pocket and gave knife blow to Wajir Singh on right side of his chest. Balbir Singh, appellant also took out a knife from his pocket and gave knife blow on left flank of Jeet Singh. 4. On alarm being raised, PWs Surat Singh and Inder Singh were attracted to the spot. They rescued the injured from the assailants and the injured were taken to their houses. Then they were shifted to Primary Health Centre on a tractor of Avtar Singh. They were examined by Dr. S.L. Kaushik at 11.45 pm and 12.30 am respectively. Intimation was sent to the police regarding their admission. Law enforcement agency initiated action and after recording statement of PW Jeet Singh, FIR Ex.PX was recorded at 2.35 pm on 14.1.1987. 5. Keeping in view serious condition of Jeet Singh, he was referred to Civil Hospital, Ambala and then to PGI at Chandigarh for further treatment, where he was operated upon and to save his life a surgical operation was performed. Appellants/accused were arrested, investigation was completed as per norms and thereafter, final report was submitted in the trial court. All the appellants/accused were charge sheeted, to which they pleaded not guilty and claimed trial. Prosecution then led evidence to prove their guilt. On completion of prosecution evidence, statements of the appellants/accused were recorded under Section 313 Criminal Procedure Code, wherein they denied all the allegations appearing against them in prosecution evidence and pleaded their false implication. 6. Trial Court, on appraisal of evidence, found them guilty, convicted and sentenced them as found mentioned in para 1 of this order. Hence, this appeal. 7. Shri Mann, appearing on behalf of the appellants, has vehemently assailed the impugned judgment and order, by stating that the conviction, in view of shaky evidence on record, was not justified. 6. Trial Court, on appraisal of evidence, found them guilty, convicted and sentenced them as found mentioned in para 1 of this order. Hence, this appeal. 7. Shri Mann, appearing on behalf of the appellants, has vehemently assailed the impugned judgment and order, by stating that the conviction, in view of shaky evidence on record, was not justified. He, by referring to the medical evidence and ocular version of the prosecution, argued that no offence was made out under Section 307 Indian Penal Code. There was no intention/knowledge on the part of appellants to murder, as had been urged against them. He further stated that presence of appellants No. 3 and 4 was not proved on record. At the maximum, without conceding anything, Shri Mann contended that it was a case of sudden fight without any pre-meditation. He also referred to some discrepancies in the statements of prosecution witnesses. On merits, he prayed that appeal be allowed, judgment and order under challenge be set aside and appellants be acquitted of the charge framed against them. 8. In the alternative, he prayed that as the appellants and the injured were co-villagers, appellants were not previous convicts, the only bread winners for their families and were of young age at the time of alleged occurrence, leniency be shown to them and sentence awarded to them be reduced to the one already undergone. 9. Arguments raised by counsel for the appellants have vehemently been controverted by Shri Rattan Singh, AAG Haryana appearing on behalf of the State of Haryana. He, by referring to the evidence on record, argued that guilt of the appellants/accused was proved on record, as such, their conviction and sentence awarded to them was justified. As the appellants had committed a very serious crime, he prayed that no leniency be shown to them. He further stated that recording of FIR was very prompt. Discrepancies, as indicated by the counsel for the appellants in the statements of prosecution witnesses, were minor, as such, were not fatal to the case of the prosecution. He prayed that appeal, having no substance, be dismissed. 10. Counsel for the parties heard and record was perused with their assistance. 11. Before taking note of rival contentions of both the parties, it is necessary to look into medical evidence on record. Wajir Singh, injured (PW) was medico-legally examined by Dr. He prayed that appeal, having no substance, be dismissed. 10. Counsel for the parties heard and record was perused with their assistance. 11. Before taking note of rival contentions of both the parties, it is necessary to look into medical evidence on record. Wajir Singh, injured (PW) was medico-legally examined by Dr. S.L. Kaushik on 13.1.1987 at 11.45 pm and he found following injuries on his person :- "1) 17 mm x 15mm incised wound present on the right posterior axillary line at the level of inferior scapular angle. Bleeding from the wound was present. Probing was not done. There was corresponding cut in the garments. He was advised X-ray chest and surgeons opinion." 12. Similarly, on 14.1.1987, at 12.30 am, the doctor medico-legally examined injured Jeet Singh and found following injuries on his person :- "1) An incised wound obliquently present on the lower part of the chest in between the left mamory and anterior axillary line 12 cm below the left nipple. The wound was 16 mm x 18 mm spindle shaped. Reddish mass was coming out of the wound. Bleeding was present. There was corresponding cut in the garments. X-ray and surgeons opinion was advised." 13. It is also apparent from the record that condition of injured Jeet Singh was serious, he was referred for medical treatment of Civil Hospital Ambala from where he was further referred to PGI at Chandigarh, where he was admitted on 14.1.1987. To save his life, he was operated upon. Dr. Rajan Saxena (PW 9) had deposed that Jeet Singh was operated in PGI on 14.1.1987 at 12.40 pm and after operation, he gave the following findings regarding injury to Jeet Singh :- 1) About 1 litre of blood with mucuous and flakes was present in the peritoneal cavity. 2) There was a linear tear about 1.5 cm in length on the capsule of the spleen on its lateral surface with active bleeding. 3) There was a perforation of about 1 cm diameter at the greater curvature of the stomach, just adjacent of the inferior pole of spleen. No active bleeding from the perforation. 4) There was a three cm long tear on the inferior surface of the left lob of the liver, with no active bleeding. 5) Two small haematoma were present over the splenic flexure of the colon. No active bleeding from the perforation. 4) There was a three cm long tear on the inferior surface of the left lob of the liver, with no active bleeding. 5) Two small haematoma were present over the splenic flexure of the colon. 6) About 1.5 cm linear cut of the stab wound present on the parietal peritoneum in relation to the lateral abdominal wall and the lower ribs underlying the external stab wound, piercing the diagphragm as well." 14. It is further in the statement of PW Dr. Rajan Saxena that injuries referred to above, were repaired. Patient was transfused two units of blood during operation along with other intravenous fluids. He opined nature of injuries on the person of Jeet Singh as dangerous. However, while deposing in court, this witness had categorically stated that by dangerous he means dangerous to life. It is also admitted case that Jeet Singh, injured (PW) remained admitted in PGI till 3.7.1987. It is apparent from the records that injury was on vital part of the body of Jeet Singh and its gravity can be seen from the post operation note given by (PW9) Dr. Rajan Saxena. Under these circumstances, it can safely be said that the injury caused to PW Jeet Singh, could have been dangerous to life. 15. Contention of Shri Mann that the offence committed by the appellants does not fall within the definition of Section 307 Indian Penal Code, in view of medical evidence on record, as referred to above and other circumstances, is liable to be rejected. A Full Bench of this Court in Sarvinder Singh alias Chhinda son of Kesar Singh and another v. The State, 1976 The Punjab Law Reporter 867, while interpreting as to under what circumstances offence will fall within purview of Section 307 Indian Penal Code had opined as under :- "12. In our opinion, intention or knowledge is not to be measured by the consequence. It has to be gathered from all the surrounding facts and circumstances. In our opinion, intention or knowledge is not to be measured by the consequence. It has to be gathered from all the surrounding facts and circumstances. If an act is done with the intention of knowledge requisite for the commission of the offence of murder, and, if there are no circumstances introducing a defence to a charge of murder either by way of a general or a special exception, the offence would be attempt to murder, if the act does not result in death, whatever be the reason for the act not resulting in death, whatever be the nature of the injuries and even if no injuries are caused. The requisite intention, or knowledge is not to be excluded from the mere fact that death is not the consequence of the act. Such an act may not result in death for a variety of reasons, such as, the ineffectiveness of the weapon, the intention of a sudden obstruction etc. It is true that the mere act of firing a gun need not necessarily lead to the inference of the requisite intention or knowledge necessary to make the offence one of murder. A person may fire a gun in the air intending to frighten someone, a person may aim and shot at some ones legs intending to cause injury to the leg, a person may discharge a gun from a distance of 300 yards knowing that the maximum range of the gun is 30 yards. In such or similar situations, one may not draw the inference of the requisite intention or knowledge for the commission of the offence of murder. But, if a person shoots at another at a sufficiently close range or if a person fires a loaded cannon at a crowd of persons, the requisite intention or knowledge can be readily inferred. Such an intention of knowledge cannot be refused to be inferred merely because the act does not result in the death of any one either because the weapon is defective or because the powder is wet or the pellets too small, or because only a few pellets strike the victim the aim of the assailants being poor, or because the victim is so lucky that no vital portion of the body is injured or expert medical attention available on the spot saves his life and so on. We, therefore, overrule the observations of the Division Bench in Gurmukh Singh and another v. The State of Punjab." 16. In the case in hand, attempt on the part of the appellant to commit murder is apparent. As has been referred to above, injury to PW Jeet Singh was grievous and could have been dangerous to life. It was on vital part of his body. Perusal of evidence further shows that both the appellants and the injured were invited to attend a social function. There was no occasion for the appellants to go there armed with knives. When the celebrations were over, injured Jeet Singh and Wajir Singh were going to their house, they were way-laid and injuries were caused to them. There was a motive also to cause those injuries, as earlier there was a dispute between the parties regarding possession over a manure pit. By taking overall view of the facts and circumstances, as existed in this case and ratio of the judgment in Sarvidner Singhs case (supra), this Court is of the opinion that the trial court was justified in convicting and sentencing the appellants for commission of an offence under Section 307 Indian Penal Code. 17. Registration of FIR in this case was very prompt, as such, any padding is ruled out on the part of the investigating agency. Discrepancies in the oral testimony of the witnesses, as indicated by Shri Mann, are only minor/insignificant, as such, were not fatal to the case of the prosecution. Both injured PWs Wajir Singh and Jeet Singh and also one PW Surat Singh had stood rigorous test of cross-examination, during which their testimony could not be shattered. Trial court had discussed their evidence in thread bare manner. Even Shri Mann has failed to show anything on the basis of which, their testimony can be disbelieved. 18. In view of reasoning given in preceding paras of this order, argument of Shri Mann, that it was a case of sudden fight, is also ruled out. Recovery of knives was also proved on record. There existed evidence, which also shows presence of appellants No. 3 and 4 at the spot and their common intention to cause injuries to Jeet Singh and Wajir Singh. Recovery of knives was also proved on record. There existed evidence, which also shows presence of appellants No. 3 and 4 at the spot and their common intention to cause injuries to Jeet Singh and Wajir Singh. Accordingly, this Court is of the opinion that conviction and sentence of the appellants for commission of offences under Sections 307, 324/34 Indian Penal Code and Section 27 of the Arms Act, 1959 was perfectly justified. 19. Alternative prayer of Shri Mann to show leniency to the appellants, in view of evidence on record, is perfectly justified. Shri Mann has stated that the appellants No. 1 and 2 had already undergone more than seven months each of imprisonment and appellants No. 3 and 4 had remained behind the bars for about more than three weeks, after their conviction. He also brought it to the notice of the court that appellants were young between age of 22 to 32 years at the time of alleged occurrence, now they are grown up individuals and are residing in a peaceful manner alongwith their families. He further stated that they were not the previous convicts and after their conviction in this case, they had not indulged in any other similar criminal activity. He prayed that leniency be shown to them. 20. Their lordships of the Supreme Court in Karamjit Singh v. State (Delhi Admn.), 2001(9) Supreme Court Cases 161, observed as under:- "Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for this action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case, the court has to weigh the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is, what is needed in such case; a balance between the interest of the individual and the concern of the society; weighing the one against the other. An act of balancing is, what is needed in such case; a balance between the interest of the individual and the concern of the society; weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record, would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law." 21. In Tarak Nath Singh and another v. State of West Bengal, 1998(1) Supreme Court Cases (Criminal) 587, their Lordships of Supreme Court, keeping in view the fact that the occurrence took place 18 years earlier to the decision of appeal and the parties were relatives, reduced the sentence to the period already undergone. 22. Similar is the opinion expressed by two Division Benches of this Court in State of Punjab v. Gurmail Singh, 2002(2) R.C.R. (Criminal) 600. In that case in an appeal against acquittal, accused were convicted. However, they were sentenced to a term of imprisonment already undergone, keeping in view the fact that incident had occurred in the year 1981. 23. To the same effect is the opinion of this Court in Chhota Singh v. State of Punjab, 1998(1) R.C.R. (Criminal) 467. 24. Counsel for the appellant has also placed reliance upon a judgment of Supreme Court in Mohammad alias Biliya v. State of Rajasthan, (2000) 10 Supreme Court Cases 486, wherein, in a case under Section 304 Part II Indian Penal Code, leniency was shown to the accused in that case and they were ordered to be released on probation. 25. To support his contention, counsel for the appellants has also relied upon judgment of the Honble Supreme Court in Mohinder Pal Jolly v. State of Punjab. 25. To support his contention, counsel for the appellants has also relied upon judgment of the Honble Supreme Court in Mohinder Pal Jolly v. State of Punjab. AIR 1979 Supreme Court 577, wherein, after convicting the appellant- accused therein for commission of an offence under Section 304 Part II Indian Penal Code, their Lordships of the Supreme Court observed in para No. 12 as under :- "12. Even so on the facts and in the circumstances of this case we do not feel persuaded to let off the appellant with an imposition of fine only. We, however, thought that sentence of three years rigorous imprisonment would meet the ends of justice in this case. We were informed at the Bar and an affidavit sworn by the appellants wife was also filed before us to the effect that the appellant was in jail for about nine months as an under trial prisoner and for about four months after conviction. Thus he has already undergone imprisonment for a period of about a year and a month. The occurrence took place more than a decade ago. The appellant had to pass this long ordeal all these years both mentally and financially. Considering, therefore, the totality of the circumstances while maintaining the imposition of fine of Rs. 10,000/- and in default two years further imprisonment, we reduce his substantive term of imprisonment to the period already undergone and maintain the conviction of the appellant not under Part I of Section 304 of the Penal Code but under Part II." 26. It is apparent from records that appellant No. 1 had caused one injury to Jeet Singh and appellant No. 2 had caused one injury to Wajir Singh and thereafter, no attempt was made by them to repeat the assault, as such, it is apparent that they had not tried to take undue benefit of their dominant position at the time of alleged occurrence. Appellants No. 3 and 4 had caused no injury to Jeet Singh Wajir Singh, the only allegation against them is that they had caught hold of the injured from their long hair. Appellants had continued to face ordeal of trial for about five years, which came to an end on 3.3.1992 and since then their appeal is pending in this Court. Appellants had continued to face ordeal of trial for about five years, which came to an end on 3.3.1992 and since then their appeal is pending in this Court. During this period, fear of being sent behind the bars on one day or the other had its desired effect and as per information supplied, appellants had disciplined themselves and now are residing peacefully in the village. 27. Keeping in view Article 21 of the Constitution of India and interpretation thereof, judicial compassion can play a role and leniency can be shown to the appellants/accused for mental agony being suffered by them on account of long drawn litigation before the trial Court and also due to the pendency of this appeal in this Court for about 12 years. 28. Alleged occurrence had taken place in the year 1987, appellants No. 1 and 2 had already undergone more than seven months each of imprisonment and appellants No. 3 and 4 have already undergone about more than three weeks. Accordingly, so far as appellants No. 3 and 4, namely, Karnail Singh and Jagir Singh are concerned, their sentence is reduced to the one already undergone by them. So far as appellants No. 1 and 2 namely Balbir Singh and Jara Singh alias Hazara Singh are concerned, their sentence is reduced to two years under Section 307 Indian Penal Code, qua other offences, their sentence is maintained. 29. Keeping in view opinion of their Lordships of Supreme Court in Baldev Singh and another v. State of Punjab, AIR 1996 Supreme Court 372 and with a view to safeguard the interest of the injured and to pacify their emotions, fine is enhanced to Rs. 30,000/-, over and above the fine already imposed (to be paid equally by all the appellants). This amount is directed to be paid to injured Jeet Singh/his legal heirs by way of compensation. Appellants are directed to deposit this amount in the trial court within two months from the date of receipt of a copy of this order, failing which their appeal shall be deemed to have been dismissed. On deposit being so made, trial court is directed to disburse that amount to the injured Jeet Singh/his legal heirs forthwith. With above mentioned observations, appeal stands disposed of. Order accodingly.