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2005 DIGILAW 1168 (PNJ)

Gurdev Singh v. State Of Punjab

2005-11-10

M.M.AGGARWAL

body2005
Judgment M.M.Aggarwal, J. 1. This is an appeal against judgment dated 24-02-1994 of Additional sessions Judge, Sangrur, whereby accused/appellant Gurdev Singh was convicted for offences under Sections 450/326/324/506 IPC and sentenced to undergo RI for four years and to pay fine of Rs. 1,000/- and in default of payment of fine to further undergo RI or six months under Section 450 IPC. For offence under Section 326 IPC to undergo RI for three years and to pay fine of Rs. 500/- and in default of payment of fine to further undergo RI for four months. For offence under Section 324 IPC to undergo RI for two years and for offence under Section 506 IPC to undergo RI for six months All the sentences were directed to run concurrently. 2. FIR for offence under Sections 506/452/324 IPC had been registered against the accused/appellant on the statement of Jagdish Kumar that on 17.7.1987 at about 10.00 or 10.30 PM he was lying on a cot in his room, in Prem Basti Sangrur and was listening the transistor. The gate of his room was open because milk-vendor had come to supply milk. Then Gurdev Singh accused entered the house. He was holding an iron weapon in his hand. Then Jagdish Kumar asked Gurdev Singh as to for what purpose he had come. Gurdev Singh appellant did not reply but then gave blows with both hands. Jagdish Kumar raised his left arm and the blow hit on the wrist of his left arm. When Gurdev Singh wanted to give another blow on his neck then he (Jagdish Kumar) again raised his left arm and the blow his on his left arm. Jagdish Kumar raised alarm. Gurdev Singh again gave a blow which hit partly on the right arm. Then Raghbir Chand, brother of Jagdish Kumar came from the kotha and Gurdev Singh fled away. While fleeing, he raised lalkara asking Raghbir Chand to go back otherwise he will also be given blows. After registration of the case police had taken up investigation. They had originally filed challan of case triable by the Court of Magistrate but after some evidence Chief Judicial Magistrate Sangrur found that the case was for offence under Section 450 IPC exclusively triable by the Court of Session. Case was accordingly committed to the Court of Session. Accused/appellant faced trial for offence under Sections 326/324/452/450/506 IPC. They had originally filed challan of case triable by the Court of Magistrate but after some evidence Chief Judicial Magistrate Sangrur found that the case was for offence under Section 450 IPC exclusively triable by the Court of Session. Case was accordingly committed to the Court of Session. Accused/appellant faced trial for offence under Sections 326/324/452/450/506 IPC. The case was found to be duly proved. He was accordingly convicted and sentenced as aforesaid. 3. Jagdish Kumar complainant-injured had been examined as witness in the Court of Chief Judicial Magistrate but had died before he could be examined during trial in the Session Court. 4. Counsel for the appellant had argued that the case against accused/appellant was not proved as Jagdish Kumar complainant was not examined and an opportunity to cross-examine Jagdish Kumar had been denied. He argued that Raghbir Chand PW2 was just brother of Jagdish Kumar and no reliance could be placed on his testimony. It was also pointed out that as per allegations, occurrence had taken placed on 17.7.1987 whereas FIR was recorded on 24.7.1987 after delay of about one week. He pointed out that there was no motive for the accused/appellant to cause injuries on the person of Jagdish Kumar. it was also argued by counsel for the appellant that Jagdish Kumar was a bad character as it will come out from certified copies Exhibits D-1 to D-20. 5. In this case, Dr. K.S. Raikhi who had medico-legally examined Jagdish Kumar on 17.7.1987 itself at about 10.30 PM had appeared as PW1 and had proved the following injuries on the person of Jagdish Kumar : 1. Incised wound 6" x 1/2" skin deep on the left side of the neck placed obliquely just below the left of angle mandible. Bleeding from the wound was present. 2. Incised wound 4" x 1" bone deep on the back of left forearm 5" below the olercranon process. The underlying bone cut. The fractured end of the bone (ultra) protruding from the wound. Profuse bleeding of the wound was present. 3. Incised wound 3" x 1/2" x muscle deep on the back of left forearm 5" below the olercranon process. 4. Incised wound 2" x 1/2" skin deep on the front of right forearm 3 below the below joint. Bleeding from the wound was present." 6. Injury No. 2 was grievous. Profuse bleeding of the wound was present. 3. Incised wound 3" x 1/2" x muscle deep on the back of left forearm 5" below the olercranon process. 4. Incised wound 2" x 1/2" skin deep on the front of right forearm 3 below the below joint. Bleeding from the wound was present." 6. Injury No. 2 was grievous. He had also deposed that on arrival of Jagdish Kumar in the hospital. he had sent information regarding the injured to the Police Station Sangrur. Then on that very night, Head Constable Ram Singh came and moved application to enquire whether Jagdish Kumar was fit to make statement but he had opined that about 11.10 PM at night that Jagdish Kumar was unfit to make statement. Then on the next day an application was made. Again he opined on that application that Jagdish Kumar was unfit. Then on 19.7.1987 Head Constable Ram Singh again moved application Ex PE and he made endorsement that Jagdish Kumar was fit to make statement. Then statement of Jagdish Kumar was recorded. Police had recorded DDR on the statement of Jagdish Kumar on 19.7.1987. From these circumstances it cannot be said that there was any delay in lodging the FIR. 7. Jagdish Kumar had appeared as PW2 when case was before Chief Judicial Magistrate Sangrur. In his statement as PW2 he had given the details of the occurrence as written in the FIR. He had further stated that earlier this Gurdev Singh was employed by him as driver of the truck but he had caused an accident and three buffaloes got injured and vehicle also got damaged. Then Gurdev Singh accused had been turned out from service and therefore he caused injuries. Jagdish Kumar was cross-examined at length in the Court of Chief Judicial Magistrate. At that time, Raghbir Singh had appeared as witness of the occurrence in the Court of Magistrate as PW3. Then Raghbir Singh was examined in the Session Court as PW2 and had supported the prosecution case. 8. Section 33 of the Evidence Act provides as under : "Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Then Raghbir Singh was examined in the Session Court as PW2 and had supported the prosecution case. 8. Section 33 of the Evidence Act provides as under : "Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. - Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay of expense which, under the circumstances of the case, the Court Considers unreasonable : Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were subsequently the same in the first as in the second proceeding. Explanation. - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section." 9. The judicial proceedings before Chief Judicial Magistrate Sangrur were in respect of the same FIR and the occurrence. Complete cross-examination had been conducted on behalf of accused/appellant Gurdev Singh in that Court. Statement as such of Jagdish Kumar recorded in the Court of Chief Judicial Magistrate as PW2 is relevant and has to be relied. It is further corroborated by medical evidence and statement of Raghbir Chand PW2. 10. As far as documents Exhibits D-1 to D-20 are concerned, these would show that Jagdish Kumar was involved in many cases under Section 13-A of Public Gambling Act, which will mean that he was doing Dara Satta business. Indulging in Dara Satta or being involved in Section 13-A of the Public Gambling Act, will not mean that Jagdish Kumar was a bad character or anybody could go and cause injuries on his person, There was no cause for Jagdish Kumar to falsely involve Gurdev Singh for the injuries suffered by him. 11. Counsel for the appellant had lastly argued that occurrence took place in the year 1987. 11. Counsel for the appellant had lastly argued that occurrence took place in the year 1987. Gurdev Singh appellant faced trial up to 1994 in the Court of Chief Judicial Magistrate, Sangrur and Additional Sessions Judge, Sangrur. He had suffered enough and lenient view be taken and sentence should be reduced to already undergone. 12. I find that in this case Gurdev Singh had trespassed into the house of Jagdish Kumar at night time without any cause after having made preparation to cause hurt. He caused hurt on the person of Jagdish Kumar and had committed an offence punishable with imprisonment for life i.e. 326 IPC and had also caused other injuries. This is not a fit case to take any lenient view. 13. From the above discussion, I do not find no merit in this appeal and the same is dismissed.