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2008 DIGILAW 894 (PNJ)

Mithoo Singh v. State of Punjab

2008-04-21

KANWALJIT SINGH AHLUWALIA

body2008
JUDGEMENT Kanwaljit Singh Ahluwalia, J 1. Mithoo Singh son of Nand Singh and his co-accused Sadha Singh son of Fateh Singh, Balwinder Singh son of Shital Singh, Gardaur Singh alias Kala Daint son of Gurbax Singh were named as accused in case FIR No.24 dated 5.5.1992 registered at Police Station Bareta, under Sections 452, 460 & 34 IPC. Out of these four accused Balwinder Singh and Gardaur Singh died during the trial. Mithoo Singh and Sadha Singh were convicted by the Court of learned Additional Sessions Judge, Mansa, under Section 460 IPC and were sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-each, in default whereof to further undergo rigorous imprisonment for three months. 2. As per the record Mr. Prem Kumar, Advocate, is appearing as Amicus Curiae for Mithoo Singh, Sadha Singh has not filed appeal. Learned counsel appearing for appellant at the outset has stated that Mithoo Singh appellant was arrested on 17.6.1992 and was released on bail on 19.9.1992 as challan was not filed within the statutory period of 90 days, however, the bail bonds could only be furnished on 30.9.1992 and hence the appellant had undergone three months and 13 days as under trial. It has been further contended before me that appellant was taken into custody by the trial Court on the date of judgment i.e. 19.2.1997 and thereafter he has been granted bail by this Court on 29.1.2001 and hence he has undergone three years, one month and 11 days after his conviction and thus, in all appellant has undergone three years, four months and 24 days out of his actual sentence of seven years apart from the remissions. 3. Learned counsel for the appellant has also brought into my notice certificate Ex.D1, which is a Handicap Certificate to show that the appellant suffer from 70% handicap and permanent disability as his left arm has been amputated. He has also brought into my notice observations of the trial Court which are recorded in para 16 of the judgment wherein it has been held that “Mithoo Singh is handicapped from left hand and not from right hand”. Probably this certificate was relied to show that the appellant could not have caused injuries as he is deprived of left arm and the learned trial Judge had held that “his right arm is fully developed and is in working condition. Probably this certificate was relied to show that the appellant could not have caused injuries as he is deprived of left arm and the learned trial Judge had held that “his right arm is fully developed and is in working condition. Learned counsel for the appellant stated that 70% disability and handicap may be taken as mitigating circumstance for reduction of the sentence. 4. At this stage I have to weigh whether because of protracted trial, as the occurrence took place on 5.5.1992, coupled with the fact that the appellant suffered from 70% disability and his left arm is amputated and has undergone more than three years and four months, he is entitled to reduction in sentence to already undergone or not. 5. Before I give due consideration to the submissions by learned counsel for the appellant, it would be necessary to recapitulate facts of the case. 6. Baldev Singh son of Gurdial Singh made a statement on 5.5.1992 at Primary Health Center, Bareta to Gurdeep Singh, Assistant Sub Inspector, that he is resident of Bahadurpur. He has further stated that at about 1.00 A.M. in the night, he heard some noise. When he woke up, he heard his wife and brother raising alarm “killed killed”. Mohinder Kaur was standing in the room. She switched on the light of courtyard then the complainant saw Mithoo Singh armed with gandasa was inflicting injuries to Major Singh. Major Singh warded off gandasa blows, which hit on his right little finger. Meanwhile, three other persons also came. Out of them one was Sadha Singh son of Fateh Singh who was armed with Gandasa. He inflicted a gandasa blow which hit on the head of complainant. Mithoo Singh inflicted gandasa blow to the complainant’s son Major Singh and also caused injuries to his son Harbans Singh. The complainant further stated that he could not recognize two other accused due to darkness. All the accused fled away from the spot along with their weapons. He further stated that on his search of the luggage he discovered that a cash of Rs.13,320/-, five gold mohars weighing about 1¼ tolas and a pair of gold ear rings weighing around 1 tola were missing from the wooden box lying in the room and the accused had escaped. He has also given features and names on the basis of suspicion of other two accused. 7. He has also given features and names on the basis of suspicion of other two accused. 7. After the FIR was investigated, report under Section 173 Cr.P.C. was submitted. The present appellant along with Sadha Singh was charged for causing grievous hurt to Baldev Singh, Major Singh and Harbans Singh for offence under Section 460 IPC. The accused pleaded not guilty and claimed trial. 8. PW.1 Dr. Ramesh Kumar Katodia has stated that he found one injury on the person of Harbans Singh, aged 13 years, son of Baldev Singh, which was on the head near the ear. On the same night i.e. night of 5.5.1992 he found three injuries on the person of Major Singh, brother of complainant Baldev Singh. Injury No.2 was amputation of right index finger, therefore, the same was declared as grievous. 9. PW.1 Dr. Ramesh Kumar Katodia also examined Baldev Singh and found one injury on his person, which was on the head. In cross-examination, he has stated that injuries can be caused with gandasa. He further stated that injuries No.2 and 3 on the person of Major Singh could also be self-suffered with separate blows. PW.2 is injured Major Singh. He has stated that Mithoo Singh accused came armed with gandasa and gave injuries to him. PW.3 Baldev Singh, complainant, appeared and reiterated the version given by him in the FIR. PW.4 Surinder Mohan, Assistant Sub Inspector, had partly investigated the case. PW.5 Gurmail Dass, Moharrir Head Constable, Police Station Lehra, proved FIR, which was against accused Balwinder Singh who had died during the trial. PW.6 Gurdip Singh, Assistant Sub Inspector, is the Investigating Officer. Thereafter, prosecution evidence was closed. All incriminating evidence was put to the accused. He denied the allegations against him. In defence, DW.1 Jalour Singh was examined to state that Sadha Singh was residing at Mansa. Dw.2 Dr. Rameshwar Chander, Civil Surgeon, Mansa, has proved handicap certificate Ex.D1 by which it has been stated that appellant Mithoo Singh suffer from handicap and permanent disability to the extent of 70%. 10. Appellant and complainant belong to the same village. Pw.6 Gurdip Singh, Assistant Sub Inspector, has specifically stated that he did not enquire regarding origin of Rs.13,320/-which was alleged to have been robbed. 10. Appellant and complainant belong to the same village. Pw.6 Gurdip Singh, Assistant Sub Inspector, has specifically stated that he did not enquire regarding origin of Rs.13,320/-which was alleged to have been robbed. Though there is no doubt, from the testimony of witnesses, that the appellant was one of the accused who had caused injuries to the injured but the statement of witnesses suffer from blemish as they had introduced robbery without any basis. It is rare that a co-villager will commit robbery in his own village. No independent witness from the village has been examined who could justify the fact regarding robbery. It cannot be ruled out that a case where accused had caused injuries after trespassing into the house of complainant, to make the offence aggravated, had introduced robbery. Be as it may, appellant has been convicted of trespass into house of the complainant for causing grievous injuries. No recovery of stolen articles has been made from the appellant. The appellant has been charged and convicted for an offence under Section 460 IPC, which is for committing lurking house trespass with intention to cause grievous hurt, therefore, no charge of robbery has also been framed. 11. In view of the discussion made above, I am of the considered opinion that taking into account 70% disability proved by DW.2 Dr. Rameshwar Chander, Civil Surgeon, Mansa, vide certificate Ex.D1, the fact that the appellant has undergone more than three years and four months, ends of justice will be fully met in case the sentence of appellant Mithoo Singh is reduced from seven years to four years rigorous imprisonment. With these modifications in the sentence, present appeal is dismissed. Appeal dismissed.