Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 580 (PNJ)

Swinder Singh v. State Of Punjab

2007-03-21

T.P.S.MANN

body2007
Judgment T.P.S.Mann, J. 1. The appellants were tried by Additional Sessions Judge, Gurdaspur for offences under Sections 307 and 342 IPC. Vide judgment and order dated 24.8.1994, the trial Court convicted both the appellants for the said offences. The appellants were directed to undergo RI for five years and to pay a fine of Rs. 500/- each, in default of payment of fine, to undergo further RI for a period of three months each under Section 307 IPC. Both the appellants were also sentenced to undergo RI for three months each for the offence under Section 342 IPC. Sentences were ordered to run concurrently. Aggrieved of the same, the appellants filed the present appeal. 2. The prosecution case can be summed up as follows :- Prabh Dyal Singh PW-3 and his two brothers, namely, Jagtar Singh PW-2 and Avtar Singh injured (now dead) purchased land from Sarup Singh of village Khera. Afterwards, all of them started residing there. On 9.11.1988 at about 9.00 p.m., Prabh Dayal Singh along with his two brothers was talking to each other in the courtyard of their house. It was Diwali night. Meanwhile, a noise was heard from the adjoining house of Swinder Singh that the monkey of Avtar Singh had come in their house and the same should be taken away. Avtar Singh went to the house of the accused to bring back his monkey. At that time, Swinder Singh accused armed with a kirpan and his father Anup Singh armed with a gandasi were standing amongst the eucalyptus trees there. Anup Singh gave a gandasi blow on the right hand of Avtar Singh. When Prabh Dyal Singh and Jagtar Singh moved towards their brother Avtar Singh, Anup Singh gave another gandasi blow, hitting Avtar Singh on his nose and cheek. Swinder Singh accused gave a kirpan blow, which hit below the left knee of Avtar Singh. Another kirpan blow landed on the head of Avtar Singh. Both the accused then dragged Avtar Singh into a room of their house and confined him there. 3 Prabh Dyal Singh and Jagtar Singh went to the BSF Post in the village but they found no support. They were asked to go back to their house. On the next day, they informed the village Panchayat and Avtar Singh was got released from the house of the accused. 4. 3 Prabh Dyal Singh and Jagtar Singh went to the BSF Post in the village but they found no support. They were asked to go back to their house. On the next day, they informed the village Panchayat and Avtar Singh was got released from the house of the accused. 4. The motive for the occurrence was that about five months prior to the occurrence, Anup Singh received injuries at the hands of relatives of Prabh Dyal Singh. The respectable persons of the village had intervened and got the matter settled. However, the accused still nursed a grudge against the complainant party. 5. Prabh Dayal Singh PW-3 proceeded towards the Police Station and met ASI Balbir Singh PW-4 on the way, where he made statement Ex. PE. On the basis of the same formal FIR Ex. PE/2 came to be recorded in Police Station, Fatehgarh Churian on 10.11.1988 at 1.35 p.m. 6. The accused were arrested on 17.11.1988. During their interrogation, both the accused made their respective disclosure statements. In pursuance of the same, gandasi Ex. P1 and Kirpan Ex. P2, were recovered. 7. After the completion of the investigation, challan was presented against the accused. 8. In support of its case, the prosecution examined Dr. Sukhdev Singh PW1, who stated that on 10.11.1988 at 1.45 p.m., he medico-legally examined Avtar Singh and found the following injuries :- "1. Incised wound 8 cm x 1 cm over right parietal region of scalp, 7 cm behind anterior hair line starting from mid line. It was bone deep. The skull bone was cut. Wound showed early signs of infection. It was obliquely placed. 2. Incised wound 15 cm x 2 cm over face starting from left outer surface of distal end of nose extending upto 3 cm in front of pinna of right ear. The nasal bones and cartilages were cut. The maxilla on right side was cut. Depth of the wound was 3.5 cm. The wound showed early signs of infection. 3. Incised wound 6 cm x 2-1/4 cm over back of right index finger base extending upto hand at level of middle finger. The underlying bone i.e. 1st phalanx was cut. The wound showed early signs of infection. 4. Incised wound 9 cm x 1 cm over back of right scapular region, vertically placed. It was skin deep, showed early signs of infection. 5. The underlying bone i.e. 1st phalanx was cut. The wound showed early signs of infection. 4. Incised wound 9 cm x 1 cm over back of right scapular region, vertically placed. It was skin deep, showed early signs of infection. 5. Incised wound 5 cm x 4 cm over outer surface of left leg, 1 cm below knee. The muscle mass and underlying fibular bone was cut. The wound showed early signs of infection." 9. He further stated that sum total effect of all the above injuries was dangerous to life and individually injuries Nos. 1, 2, 3 and 5 were declared grievous and injury No. 4 was simple. Probable duration of the injuries was within 24 hours and all the injuries were caused with sharp edged weapon. He further stated that all the injuries were dangerous to life but for medical aid. 10. Prabh Dyal Singh PW3 and Jagtar Singh PW2 deposed regarding the ocular account of the occurrence. 11. SI Balbir Singh PW4 stated about recording of statement Ex. PE made by Prabh Dyal Singh and conducting of the investigation thereafter by him. He also deposed about the arrest of the accused and recovery of weapons from them. 12. Rishi Ram, Draftsman appeared as PW-5 and proved site plan Ex. PW5/A prepared by him. 13. Constable Surat Singh PW-6 stated about the delivery of special report to the Ilaqa Magistrate on 11.11.1988 at 9.00 a.m. 14. When examined under Section 313 Cr.P.C., both the accused denied the correctness of the prosecution version and stated that they had been falsely implicated. In defence, the accused examined Dharam Pal DW-1, who stated that there were numerous trees between the two deras and one dera was not visible from the other. 15. The trial Court believed the prosecution version and convicted and sentenced the appellants as mentioned above. 16. I have heard learned counsel for the parties and gone through the evidence with their assistance. 17. Avtar Singh, who had received injuries during the occurrence and whose injuries were duly proved by the testimony of Dr. Sukhdev Singh PW1, died before he could be examined as a prosecution witness. His brothers, namely, Prabh Dyal Singh PW3 and Jagtar Singh PW2, have stated about the occurrence and infliction of injuries by both the accused to Avtar Singh. The nature of injuries, as is clear from the testimony of Dr. Sukhdev Singh PW1, died before he could be examined as a prosecution witness. His brothers, namely, Prabh Dyal Singh PW3 and Jagtar Singh PW2, have stated about the occurrence and infliction of injuries by both the accused to Avtar Singh. The nature of injuries, as is clear from the testimony of Dr. Sukhdev Singh PW1, is such that they could be caused with sharp edged weapon. The two accused were armed with a gandasi and a kirpan. These weapons could, thus, cause the injuries, which were found on the person of Avtar Singh injured. 18. During the night when the accused had caused injuries and thereafter dragged Avtar Singh to a room in their house, Prabh Dyal Singh PW-3 had made an effort to apprise the BSF officials stationed in the village, but they refused to take any action. In fact, he was asked to go back to his house and come back in the morning. On the next day, he came across SI Balbir Singh, who recorded his statement Ex. PE. Thus, whatever delay occurred in the registration of the FIR, has been satisfactorily explained by the prosecution. The accused had the motive to cause injuries to Avtar Singh. About five months prior to the present occurrence, Anup Singh accused had suffered injuries at the hands of the relatives of the complainant party. Though, the matter was compromised but Anup Singh accused and his son Swinder Singh accused still nursed a grudge. They found an opportunity in reacting when Avtar Singh went towards their house on 9.11.1988 at about 9.00 p.m. so as to bring back his monkey. Both the accused surrounded him and caused number of injuries on his person. So much so that he was even dragged into a room of their house and confined there. 19. Coming to the nature of offence, it may be noticed that none of the injuries found on the person of Avtar Singh was individually declared dangerous to life. As per the statement of Dr. Sukhdev Singh PW-1 the total effect of all the five injuries was dangerous to life. Individually, injuries Nos. 1, 2, 3 and 5 were declared grievous, while injury No. 4 was simple in nature. Out of the five injuries, injury No. 3 was on the right index finger, while injury No. 5 on the outer surface of left leg 1 cm below knee. Individually, injuries Nos. 1, 2, 3 and 5 were declared grievous, while injury No. 4 was simple in nature. Out of the five injuries, injury No. 3 was on the right index finger, while injury No. 5 on the outer surface of left leg 1 cm below knee. There is no categorical opinion by the doctor about any particular injury of Avtar Singh injured to be dangerous to life. Though, in examination-in-chief, the doctor stated that all the injuries were dangerous to life collectively but for medical aid, yet in his cross-examination he clearly stated that individually none of the injuries was dangerous to life. 20. Under these circumstances, the conviction of the appellants under Section 307 IPC cannot be legally sustained. However, as four of the incised injuries on the person of Avtar Singh were declared grievous in nature, the appellants can be saddled with liability under Section 326 IPC. 21. Coming to the question of sentence, it may be noticed that the occurrence in question had taken place on 9.11.1988. About 19 years have elapsed since then. The appellants have been facing the agony of criminal prosecution all this while. They remained in custody for a couple of days during the trial of the case and again for more than three weeks as convicts. Under these circumstances, ends of justice would be amply met if the appellants are sentenced to the period already spent by them for the offence under Section 326 IPC. At the same time, they can be directed to pay a fine of Rs. 25,000/- each for the said offence which can then be paid to the legal heirs of Avtar Singh was compensation. Similarly, the sentence of the appellants under Section 342 IPC also deserves to be reduced to that already undergone by the appellants. 22. Accordingly, the conviction of the appellants under Section 307 IPC is set aside. Instead, they are convicted under Section 326 IPC and sentenced to the period already undergone by them. However, both the appellants shall pay a fine of Rs. 25,000/- each for the said offence, which shall be paid by them within three months from the date of preparation of certified copy of this order. In default of payment of fine, the defaulting appellant shall undergo RI for one year. However, both the appellants shall pay a fine of Rs. 25,000/- each for the said offence, which shall be paid by them within three months from the date of preparation of certified copy of this order. In default of payment of fine, the defaulting appellant shall undergo RI for one year. The sentence of imprisonment imposed upon the appellants under Section 342 IPC is also reduced to that already undergone by them. 23. In case Avtar Singh was married and having children, the total amount of fine of Rs. 50,000/-, on deposit of Rs. 25,000/- by each of the appellant, shall be paid to them as compensation. If Avtar Singh has not left behind any wife or children, in that situation the said amount shall be paid to his two brothers, namely, Prabh Dyal Singh PW3 and Jagtar Singh PW2 in equal shares. 24. Except for above modification in the nature of offence and sentence of imprisonment and fine, the present appeal is dismissed.