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2008 DIGILAW 140 (PNJ)

Bhupinder Singh:. v. State of Punjab:

2008-01-21

KANWALJIT SINGH AHLUWALIA

body2008
JUDGMENT Kanwaljit Singh Ahluwalia, J. - The instant appeal has been preferred by Bhupinder Singh son of Amar Singh, resident of Ajit Nagar, Jalandhar. As per head note on the impugned judgment, at the time of pronouncement of the judgment he was 58 years. He was sought to be prosecuted in case FIR No. 68 dated 7.5.1992 registered at police station, Division No. 4-Jalandhar. He has been convicted under Section 307 Indian Penal Code by learned additional Sessions Judge, Jalandhar and sentenced to undergo RI for four years and to pay a fine of Rs. 1,000/-. In default thereof to suffer further rigorous imprisonment for three months. 2. The FIR in the instant case was registered on the statement of Major Rajinder Sharma who stated therein that he had received an information that Col. Dyal Singh Kang had been stabbed in abdomen near hotel Skylark at about 9.30 p.m. on 6.5.1992 by one Bhupinder Singh. On reaching the spot, he came to know from the CRPF Guard at Circuit House that an altercation had ensued between the accused and the injured, due to colliding of scooters. Lt. Col. Dyal Singh had been taken to the hospital. 3. Before adverting to the factual matrix of the case and analysing the same, learned Counsel appearing for the appellant has raised five arguments. Firstly she argued that in this case the prosecution has miserably failed to establish identity of the accused as his name was not known to the injured. Secondly, she has argued that through the place of occurrence was a thoroughfare, being near Skylark hotel and it has also come in the FIR that the CRPF Guard was posted in the Circuit House, it was incumbent upon the investigating/prosecuting agency to join an independent witness but none has been joined. Thirdly, the learned Counsel has argued that the weapon of offence has not been established as the weapon shown to the injured in Court was not the same as used by the accused. The fourth argument raised is that the injured-witness has been duly confronted with his previous statement, wherein he had stated that he had handed over the assailant to a Head Constable of the police. Her last argument is that there is a delay in recording of the FIR as also in delivery of the special report. 4. The fourth argument raised is that the injured-witness has been duly confronted with his previous statement, wherein he had stated that he had handed over the assailant to a Head Constable of the police. Her last argument is that there is a delay in recording of the FIR as also in delivery of the special report. 4. Although the learned Counsel has made the aforesaid submissions with full vehemence in an attempt to persuade this Court. Yet I am not ready to accept any of her contentions for the reasons stated hereinafter. 5. In the instant case FIR was lodged by a Major who got an information that Lt. Col D.S. Kang had received stab injury in his abdomen. Sequence of events would go to show that the occurrence took place on 6.5.1992 at 6.30 P.M. The victim reached the Military Hospital. There was a single stab would of 3 cms present over abdomen, 5 cms from umbilicus. As per Dr. D.P.Srivastava (PW-1) he was immediately shifted to ICU. PW3 Lt. Col. A.S. Raghunath, Surgical Specialist has deposed that on the same night, he had operated upon the injured as the injury was entering the pentoneum abdomen and had caused bleeding. According to the opinion of this witness, the injury was grievous in nature and dangerous to life. 6. The learned Counsel has pointed out during the course of arguments that there is no x-ray report. I am afraid, this cannot be accepted as the abdomen is a soft tissue and-there can be no fracture. As per the surgical opinion, which is to be considered in this regard, this injury was dangerous to life. 7. The reading of the FIR and the deposition of PW4, Lt. Col Dyal Singh Kang the injured, goes to show that the latter was coming on a scooter and collided with the scooter of the accused on which his wife and two children were also sitting. Due to impact, they fell down. Apparently, the Army man and the accused, who was having his wife and children, (who fell down), exchanged hot words and an altercation ensued. Therefore, this Court will consider alteration of the offence as occurrence took place on the heat of moment without any premeditation, spontaneously on the spur of the moment. 8. Due to impact, they fell down. Apparently, the Army man and the accused, who was having his wife and children, (who fell down), exchanged hot words and an altercation ensued. Therefore, this Court will consider alteration of the offence as occurrence took place on the heat of moment without any premeditation, spontaneously on the spur of the moment. 8. Exception 4 to Section 300 of the Indian Penal Code provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 9. In the instant case since only one injury was given Exception 4 to Section 300 Indian Penal Code will be attracted. Once exception 4 is invoked offence under Section 302 Indian Penal Code will fall under Section 304 Indian Penal Code and in the case of 307 to 308 Indian Penal Code. As such the accused appellant is held guilty of an offence under Section 308 Indian Penal Code instead of Section 307 Indian Penal Code. 10. Once the appellant is found to have committed the offence under Section 308 Indian Penal Code, the argument of the learned Counsel that the identity of the accused is not established, cannot he given credence, especially when the victim himself has appeared in the witness-box and stated regarding exchange of abuses and hot words. The injured being an army-man had himself handed over the assailant to a Head Constable of the police. It has been held by the Courts that the identification of the accused in Court is a substantive evidence and any test of identification carried prior thereto is corroborative in nature. In the instant case an offer of identification parade was given to the accused, in which he denied to participate on the ground that being a leader his photographs are generally published in newspapers. I hold that the identity to the accused in Court in the circumstances of the instant case is sufficient. This argument of the learned Counsel is, thus, repelled. 11. I hold that the identity to the accused in Court in the circumstances of the instant case is sufficient. This argument of the learned Counsel is, thus, repelled. 11. So far as the argument regarding non-joining of an independent witness despite availability of CRPF Constables and other persons in the Circuit House, is concerned, it may be observed that the persons, who were roaming there were not static, The CRPF officials are supposed to go on changing and are not presumed to remain there. Though the conduct of the Investigating Officer in not joining any independent witness cannot be said to be justified but in view of the deposition of the injured witness in Court, this contention of learned Counsel pales into insignificance. Once it has been stated that the accused- appellant had given stab injury, recovery or non-recovery of the weapon of offence will not demolish the case of the prosecution. In a case under Section 308 Indian Penal Code, delay in lodging the FIR cannot be taken into account when there is a single accused. 12. Taking the totality of the circumstances into account, since I have already converted the offence from Section 307 to the one under Section 308 Indian Penal Code, the appellant, who was 58 years of age in the year 1992, must be 73 years old by now. He is said to have already undergone about three months. Ends of justice would be met if he is released on probation for a period of one year under the Probation of Offenders Act, subject to payment of Rs. one lac as compensation to the injured. Order accordingly Rs. One lacs is awarded as compensation as the injured was not only serving Army Lt. Col. but also suffered injury in abdomen and remained admitted for about 23 days. In case the appellant furnishes probation bonds for keeping peace and be of good conduct and deposits the aforesaid amount of compensation by 25th of March, 2008, he need not serve the remaining sentence. Non deposit of the amount of compensation shall, however, lead to dismissal of the appeal and the appellant will undergo the substantive sentence of three years under Section 308 Indian Penal Code.With the modifications in the impugned judgment as indicated hereinabove, the appeal stands disposed of. Order accordingly.