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2005 DIGILAW 238 (PNJ)

Rachhpal Singh v. State Of Punjab

2005-02-09

VIRENDER SINGH

body2005
Judgment Virender Singh, J. 1. Rachhpal, Gamdur Singh, Sukhwinder Singh, Bant Singh sons of Chanan Singh and Jit Singh son of Fakir Chand, all residents of village Babanpur (Police Station Bareta) District Mansa were booked in a case FIR No. 26 dated 8.4.1990, under Sections 326/325/324/148/149 IPC, registered at Police Station Bareta. All the five accused were convicted by learned Judicial Magistrate Ist Class, Mansa vide judgment dated 18.7.1998 as under :- Jit Singh U/s 326 IPC substantively RI for two years and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo RI for one month. Rachhpal Singh, Gamdur Singh, Sukhwinder Singh and Bant Singh U/s. 326 read with Section 149 IPC, RI for one and a half years and to pay a fine of Rs. 300/-, in default of payment of fine to further undergo RI for one month. Rachhpal Singh, Gamdur Singh and Bant Singh U/s 324 IPC substantively, RI for one year and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo RI for seven days each. Jit Singh and Sukhwinder Singh U/s 324 read with Section 149 IPC RI for six months and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo RI for seven days each. Sukhwinder Singh and Bant Singh U/s 323 IPC substantively RI for six months and to pay a fine of Rs. 100/- each, in default of payment of fine to further undergo RI for seven days each. Rachhpal Singh, Gamdur Singh and Jit Singh U/s 323 read with Section 149 IPC., RI for three months and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo RI for seven days each. 2 All the accused were also sentenced for one year under Section 148 IPC and to pay a fine of Rs. 100/- each, in default of payment of fine to further undergo RI for seven days. 3. All the sentences were ordered to run concurrently. 4. Aggrieved by the aforesaid judgment, an appeal was filed by all the five persons. However, during the pendency of the appeal, Gamdur Singh son of Chanan Singh died and as such appeal qua him stood abated. 5. 3. All the sentences were ordered to run concurrently. 4. Aggrieved by the aforesaid judgment, an appeal was filed by all the five persons. However, during the pendency of the appeal, Gamdur Singh son of Chanan Singh died and as such appeal qua him stood abated. 5. The appeal qua remaining four appellants now stands dismissed vide impugned judgment of learned Additional Sessions Judge, Mansa dated 23.9.1999 except with slight modification qua Gamdur Singh observing that he alone was required to be convicted under Section 324 IPC substantively whereas other four appellants were sentenced under Section 324 read with Section 149 IPC. In the same manner the sentence is also modified. 6. I have heard learned counsel for both the sides and have carefully perused the entire evidence on record. 7. The only argument advanced before me by learned counsel for the petitioners is that conviction of Jit Singh under Section 326 IPC substantively is unsustainable for a simple reason that the injury now attributed to him during trial would not attract Section 326 IPC and instead would be attracting Section 324 IPC only. He then contends that both the Courts below have not appreciated the evidence led by the prosecution from that angle and have concluded that injury No. 2 as per the medico-legal report is attributed to Jit Singh, which ultimately turned out to be grievous in nature. My attention has been drawn to the statement of Dr. Ramesh Katodia (PW-1), who had medico- legally examined Chuhar Singh-complainant on 7.4.1990 in Civil Hospital Bareta and then Dr. Surinder Singh Bedi (PW-5), who had radiologically examined him on 10.4.1990 and noticed fracture of both the bones of left leg (tibia and fibula), fracture of fibula of right leg and fracture of both the bones of fore-arm (radius and ulna). According to the learned counsel, the case set up by the prosecution initially or even in the substantive statement of Chuhar Singh is that Gamdur Singh, who was also armed with gandasa, gave three blows to him, which hit him on his right leg. Jit Singh petitioner is initially attributed the role of giving gandasa blow to Chuhar Singh, hitting the back lower portion of his left leg. According to the learned counsel, all the main injuries, including injury No. 2 attracting Section 326 IPC are attributed to Gamdur Singh only and he is since dead. 8. Jit Singh petitioner is initially attributed the role of giving gandasa blow to Chuhar Singh, hitting the back lower portion of his left leg. According to the learned counsel, all the main injuries, including injury No. 2 attracting Section 326 IPC are attributed to Gamdur Singh only and he is since dead. 8. The learned counsel while drawing my attention to the statement of Chuhar Singh, the injured witness, submits that even from his substantive statement also, it cannot be held categorically as to who is the author of injury No. 2; and that in this eventuality also, the conviction under Section 326 IPC would be bad in the eye of the law. The charge under Section 326 IPC thus falls on the ground along with the charge of Section 149 IPC also. 9. Without joining issue on other aspects of the case, the learned counsel contends that in case the conviction of the petitioners under Section 326 IPC is set-aside, then their conviction stands on the remaining two counts viz. Sections 324 and 323 IPC substantively or with the aid of Section 149 IPC. Mr. Garg in the same stream prays for a lenient view with regard to the quantum of sentence qua all the petitioners on the grounds that the occurrence relates to the year 1990 and by now they have faced the ordeal of protracted trial spreading over to long 15 years; that during the interregnum no altercation has taken place between both the sides, who are residents of the same village and are residing peacefully; that the petitioners have remained in jail for some time and that all these factors can be considered as mitigating circumstances in favour of the petitioners for the relief sought. 10. The learned State counsel has not been able to factually controvert the submissions made by Mr. Garg except contending that even if the substantive charge against Jit Singh for the offence under Section 326 IPC fails for want of categorical evidence with regard to author of injury No. 2, the conviction recorded under Section 326 read with Section 149 IPC can still be maintained even qua Jit Singh petitioner and other three petitioners, who already stand convicted under Section 326 IPC with the aid of Section 149 IPC. According to the learned counsel, in this eventuality, even the death of Gamdur Singh, who had allegedly given three blows by gandasa to Chuhar Singh, including injury No. 2 would not stand as an impediment. However, on these counts, the State counsel did not feel the necessity of joining issue on merits as the counsel for the petitioners has not advanced any argument. 11. On the point of quantum of sentence, the learned State counsel submits that the petitioners do not deserve any leniency as they all had attacked Chuhar Singh with their respective weapons, causing as many as 8 injuries on his person. 12. After giving my thoughtful considerations to the rival contentions of both the sides, I find substance in the submissions made by learned counsel for the petitioners with regard to the main charge of Section 326 IPC. I have once again gone through the medical evidence vis-a-vis the substantive statement of Chuhar Singh. No doubt, in the initial statement of Chuhar Singh recorded during investigation, injury No. 2 is attributed to Jit Singh petitioner but legally the statement during investigation loses its effect after the substantive statement is recorded in the Court. In the substantive statement, no doubt he attributes the injuries to Gamdur Singh (deceased) and Jit Singh, with their respective gandasas, but he is not specific about injury No. 2. After rescanning the entire evidence of Chuhar Singh minutely, the only inference which can be drawn is that he is silent about author of injury No. 2. Admittedly, on the basis of radiological report, this injury attracts Section 326 IPC. But what appears to me is that the charge was initially framed against Jit Singh petitioner under Section 326 IPC substantively for the reason that during investigation Chuhar Singh had attributed injury No. 2 to him only. Technically the charge has to be framed on the basis of the evidence collected during investigation upto the stage of filing of the challan. To that extent, I do not find any flaw but as stated above, the substantive statement on oath has to be taken into account and not the statement recorded during investigation. Once author of the main offence is not established by the prosecution, the charge has to be diluted. To that extent, I do not find any flaw but as stated above, the substantive statement on oath has to be taken into account and not the statement recorded during investigation. Once author of the main offence is not established by the prosecution, the charge has to be diluted. The learned State counsel has not been able to seriously dispute the legal position when assessed in the light of the substantive evidence on the file. My view is fortified by the decision of the Honble Supreme Court rendered in Tameshwar Sahi and others v. State of Uttar Pradesh, 1976 SCC(Crl.) 19. 13. Keeping in view the facts and circumstances of the instant case, it would not be safe to maintain the conviction of under Section 326 IPC. Hence I set aside the conviction of Jit Singh petitioner under Section 326 IPC substantively and of others also who stand convicted with the aid of Section 149 IPC. The conviction for other charges is, however, maintained. 14. Let us now examine the instant case on the point of quantum of sentence. The main injuries are attributed to Gamdur Singh (since dead). The other injuries are simple in nature, that too caused on non-vital part. The occurrence relates to the year 1990. Since then the petitioners have faced the ordeal of protracted trial for over 15 years. As stated by Mr. Garg at the Bar, no untoward incident has occurred during the interregnum. The petitioners must be well settled in their lives by now. Jit Singh is stated to have remained in custody for 40 days and the remaining petitioners have also remained in for a few days during trial and after their appeal was dismissed, they had been in for about 15 days. Sending them to jail once again at this juncture would certainly amount to taking a harsh step, which is unwarranted in the facts and circumstances of the instant case. In my view, ends of justice would be adequately met if the substantive sentence awarded to the petitioners by the trial Court and thereafter upheld by the lower appellate Court under Sections 324/323 IPC substantively and with the aid of Section 149 IPC is reduced to the period already undergone. So ordered. Over and above this, the sentence of fine on the aforesaid counts shall remain intact. However, Jit Singh is directed to pay a sum of Rs. So ordered. Over and above this, the sentence of fine on the aforesaid counts shall remain intact. However, Jit Singh is directed to pay a sum of Rs. 10,000/- as compensation to Chuhar Singh injured under Section 357(2) Cr.P.C. within a period of two months from today, failing which proceedings shall be initiated against him to recover the said amount in accordance with law. 15. The sentence of fine awarded to Jit Singh petitioner under Section 326 IPC substantively to the tune of Rs. 500/- and to the remaining petitioners under Section 326 read with Section 149 IPC to the tune of Rs. 300/- each shall now be returned to them, as they stand acquitted for the said charge. 16. The petitioners are acquitted of the charge under Section 326 IPC, upholding their conviction under the other charges with modification in the sentence part in the terms indicated above. Resultantly, revision petition stands partly allowed.