Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 318 (PNJ)

Chhota Khan v. State of Punjab

2009-02-11

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This revision petition is directed against the judgment dated 11.07.2002, rendered by the Court of Additional Sessions Judge, Patiala, vide which it dismissed the appeal against the judgment of conviction dated 07.01.1999, rendered by the Court of Judicial Magistrate Ist Class, Patiala, convicting the accused (now revision-petitioners) and awarding them sentence to undergo rigorous imprisonment for a period of ne year each, for the offence punishable under Section 148 of the Indian Penal Code, to further undergo rigorous imprisonment for a period of three months each, for the offence punishable under Section 323 read with Section 149 of the Indian Penal Code, to further undergo rigorous imprisonment for a period of two years each, and to pay a fine of Rs. 500/- each, in default of payment of fine, to undergo further rigorous imprisonment for three months each,for the offence punishable under Section 32 read with Section 149 of the Indian Penal Code, to further undergo rigorous imprisonment for a period of two years each, and to pay a fine of Rs. 500/- each, in default of payment of fine, to undergo further rigorous imprisonment for three months each,for the offence punishable under Section 325 read with Section 149 of the Indian Penal Code, and to further undergo rigorous imprisonment for a period of one year each,for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code. All the substantive sentences were ordered to run concurrently. 2. The facts, in brief, are that on 27.12.1991, Nirmal Singh son of Niranjan Singh, made a statement, which was recorded in the DDR to the effect that there was a dispute, between him, and the accused, regarding some land and a case for correction of Khasra Girdawari was pending before the Tehsildar, Patiala. On 27.12.1991, the Tehsildar, Patiala, was to physically inspect the spot and, as such, the complainant, his brother Ranjit Singh, his father Niranjan Singh and some other members of Panchayat were present, in the disputed land, situated in village Sidhuwal. Jit Singh Karnail Singh, Chhota Khan, his brother, one person who happened to be the son-in-law of one Tohra and his son, were also present there. At about 10.00 AM, before the visit of the Tehsildar, there was a scuffle between the parties. Jit Singh Karnail Singh, Chhota Khan, his brother, one person who happened to be the son-in-law of one Tohra and his son, were also present there. At about 10.00 AM, before the visit of the Tehsildar, there was a scuffle between the parties. Chhota Khan, accused, gave a Dang blow on the head of Nirmal Singh complaint as a result whereof, he fell down Jit Singh, and Karnail Sigh, accused gave fist blows, on the person of Nirmal Singh. Ranjit Singh and Niranjan Singh, tried to save the complainant, whereupon, Karnail Singh, accused, gave a blow on the left arm of Niranjan Singh with Safajang Jit Singh, accused gave a blow with his Takua on the right knee of Niranjan Singh. The son-in-law of one Tohra, also gave blows to Nirmal Singh and Niranjan Singh. Harminder Singh, accused gave dang blow on the head of Niranjan Singh. Amrir Singh, accused, gave a knife blow, after taking out the same, from his pocket, on the left hand of Niranjan Singh. Thereafter, Amrik Singh, accused also gave a dang blow, after snatching the same, on the right arm of Niranjan Singh. The complainant and the other injured raised alarm, which attracted Bachan Singh, Pritam Singh and Rajinder Singh, to the spot, who on seeing them, ran away with their respective weapons. The injured were shifted to Civil Dispensary, Model town Patiala, where they were medicolegally examined. After recording the statement of Nirmal Singh, complainant, Hardial Singh, Assistant Sub Inspector, appended his endorsement, on the basis whereof, formal FIR was registered. 3. On 29.12.1991, Hardial Singh, Assistant Sub Inspector, visited the spot and site plan Ex.PW5/A was prepared. The statements of the witnesses were recorded. The accused were arrested. The statements of the witnesses were recorded. After the completion of investigation, the challan was presented, against the accused in the Court. 4. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Sections 148,326, 325,324, and 323 read with Section 149 Indian Penal Code, was framed against the accused to which they pleaded not guilty and claimed judicial trial. 5. The prosecution, in support its case, examined Dr. Atul Gupta, (PW-1) Nirmal Singh, complainant,(PW-2), Ranjit Singh, (PW-3), Niranjan Singh, (PW-4), Hardial Singh, Sub Inspector, (PW-5), and Dr. Satya Pal, Medical Officer, (PW-6). 5. The prosecution, in support its case, examined Dr. Atul Gupta, (PW-1) Nirmal Singh, complainant,(PW-2), Ranjit Singh, (PW-3), Niranjan Singh, (PW-4), Hardial Singh, Sub Inspector, (PW-5), and Dr. Satya Pal, Medical Officer, (PW-6). Thereafter, the Assistant Public Prosecutor for the State closed the prosecution evidence. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating -circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, examined Iqbal Singh, DW and Rajinder Singh, Panchayat Secretary of Gram Panchayat, DW-2 in their defence. Thereafter, they closed the. defence evidence. 7. After hearing the Assistant Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by the accused-appellants, which was dismissed vide order dated 11.07.2002, by the Court of the Additional Sessions Judge, Patiala. 9. Still dis-satisfied, the instant revision petition was filed. 10. I have heard the counsel for the parties, and have gone through and perused the evidence and record, of the case, carefully. 11. The Counsel for the revision-petitioners, at the very outset, submitted that the names of Amrik Singh and Harminder Singh, did not figure in the FIR. He further submitted that, in his supplementary statement, made by Nirmal Singh, complainant, he disclosed their names, after a delay of about 9 days. He further submitted that no test-identification parade with regard to the establishment of their identity, as the perpetrators of crime, was conducted by the Investigating Agency. He further submitted that the Courts below, thus, were wrong in recording conviction and awarding sentence, to Amrik Singh and Harminder Singh, accused. It is, no doubt, true that while exercising revisional jurisdiction, this Court cannot revaluate and re-appreciate the evidence, until and unless it comes to the conclusion, that the Courts below, committed an illegality, in the conduct of trial, or the procedure adopted, was illegal, or the findings recorded were perverse or grossly erroneous resulting into miscarriage of justice. In the instant case, the finding of fact recorded by the Courts below, qua the participation of Amrik Singh and Harminder Singh, in the alleged commission of crime is grossly erroneous. In the instant case, the finding of fact recorded by the Courts below, qua the participation of Amrik Singh and Harminder Singh, in the alleged commission of crime is grossly erroneous. In his statement, which was made by Nirmal Singh, complainant, first in point of time, and, on the basis whereof, DDR, copy whereof Ex.PA dated 27.12.1991 was recorded,the names of Amrik Singh and Harminder Singh,as accused, did not at all figure. It was only mentioned therein, that a son-in-law residing in the house of Tohra and his son was also present. The alleged occurrence took place in the broad-day light i.e. At about 10 am. Had Amrik Singh and Harminder Singh, accused, been present, and participated in the crime, their names would have been certainly mentioned, in the statement, made by Nirmal Singh, complainant, first in point of time, on the basis whereof, Ex.PA, report, in the DDR was entered. It was for the first time, that on 06.01.1992, in his supplementary statement, that the names of Amrik Singh and Harminder Singh were mentioned, as participants in the crime. Why Nirmal Singh, complainant, kept quiet, for a period of about nine days, and who I prevented him from mentioning the names of Amrik Singh and Harminder Singh, accused, as the perpetrators of crime, for such a long time, was not explained. It means at their names were mentioned, for the firs time, after a delay of 9 days, after due deliberations and consultations. The trial Court did not properly appreciate the evidence, with regard to the alleged presence of Amrik Singh and Harminder Singh and their alleged participation in the commission of crime, on account of misreading and mis-appreciation of evidence. The findings of the Courts below, that Amrik Singh and Harminder Singh were present, at the time of occurrence, could be said to be perverse. On account of such mis-appreciation of evidence by the Courts below, miscarriage of justice occasioned in so far as both these revision-petitioners namely Amrik Singh and Harminder Singh, are concerned. The Courts below were required to give benefit of doubt, to both these revision-petitioners, out of abundant caution, as their presence, at time of occurrence, was not proved beyond doubt, but they failed to do so. The revision petition qua Amrik Singh and Harminder Singh, therefore, deserves to be accepted. 12. The Courts below were required to give benefit of doubt, to both these revision-petitioners, out of abundant caution, as their presence, at time of occurrence, was not proved beyond doubt, but they failed to do so. The revision petition qua Amrik Singh and Harminder Singh, therefore, deserves to be accepted. 12. The conviction of the remaining revision-petitioners was not challenged, by the Counsel for the revision-petitioners. Even otherwise, the perusal of the evidence and record clearly goes to show that the concurrent findings recorded by the Courts below with regard to the participation of Chhota Khan, Jit Singh and Karnail Singh, accused, are based on the cogent, convincing, reliable and trust-worthy evidence of Nirmal Singh, complainant, Ranjit Singh, injured, PW-3, and Niranjan Singh, injured, PW-4, duly corroborated by the medical evidence of Dr. Atul Gupta, Medical Officer, PW-1, and Dr. Satya Pal, Medical Officer, PW-6. The concurrent findings, recorded by the Courts below, regarding the conviction of Chhota Khan, Jit Singh and Karnail Singh, accused, therefore, cannot be said to be perverse, in any manner. 13. The Counsel for the revision-petitioners, has submitted shat the occurrence took place on 27.12.1991 and the revision-petitioners have already been facing criminal proceedings, for the last more than 17 years. He has further submitted that Chhota Khan, revision- petitioner, is aged about 62 years, Jit Singh, revision petitioner, is aged about 67 years and Karnail Singh, revision petitioner, is aged about 52 years. He has further submitted that all of them have already undergone more than three months sentence. He further submitted that lenient view may be taken, in the matter of sentence, as the revision-petitioners have already suffered much, for their fault. The submission of the Counsel for the revision-petitioners, in this regard, appears to be correct. Since the revision-petitioners have facing the criminal proceedings for axe. He further submitted that lenient view may be taken, in the matter of sentence, as the revision-petitioners have already suffered much, for their fault. The submission of the Counsel for the revision-petitioners, in this regard, appears to be correct. Since the revision-petitioners have facing the criminal proceedings for axe. the last more than 17 years, and they1 old aged persons, the ends of justice, would be met i their substantive sentence is reduced to a period of three months each, for the offences, punishable under Section 323, 324, 325 and 326 read with Section 34 of the Indian Penal Code, as after holding that Amrik Singh and Harminder are entitled to acquittal, there could not be formation of unlawful assembly and the remaining revision-petitioners could not be convicted for the offence, punishable under Section 148 of the Indian Penal Code and for the remaining offences with the aid of section 149 of the Indian Penal Code. However, the sentence of fine, awarded to them, is required to be enhanced. The submission of the revision-petitioners to this extent, carries weight and stands accepted. 14. For the reasons recorded, hereinbefore, the revision petition filed by Chhota Khan, Jit Singh and Karnail Singh, is partly accepted. Their conviction for the offences punishable under Sections 323, 324, 325, and 326 read with Section 34 of the Indian Penal Code, instead of Sections 148, 323,324, 325 and 326 read with Section 149 of the Indian Penal Code, is maintained. The substantive sentence, awarded to them, is reduced. They are directed to undergo rigorous imprisonment for a period of three months, on each count for the offences, punishable under Sections 323, 324, 325 and 326 read with Section 34 of the Indian Penal Code. The fine is enhanced to a sum of Rs. 20,000/-, in relation to each of the revision- petitioners, namely Chhota Khan, Jit Singh and Karnail Singh, instead of Rs. 500/- each. In default of payment of fine, they shall further undergo rigorous imprisonment for a period of four months each, instead of three months each. Fine, if recovered, shall be paid to the injured, in equal shares, as compensation, by he Court, against valid receipt(s). 15. 500/- each. In default of payment of fine, they shall further undergo rigorous imprisonment for a period of four months each, instead of three months each. Fine, if recovered, shall be paid to the injured, in equal shares, as compensation, by he Court, against valid receipt(s). 15. The revision - petition for the offence, punishable under Section 148 of the Indian Penal Code qua Chhota Khan, Jit Singh and Karnail Singh, accused, is however, accepted, in toto, and they stand acquitted of the charge, framed against them for the said offence. 16. The revision-petition, filed by Amrik Singh and Harminder Singh is accepted as a whole. The judgment dated 07.01.1999, rendered by the trial Court and the judgment dated 11.07.2002, rendered by the Appellate Court, affirming the judgment of trial Court, qua Amrik Singh and Harminder Singh, are set aside. If they are on bail,they shall stand discharged of their bail bonds. If, they are in custody, they shall be set at liberty, at once, if not required, in any other case. 17. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, within two months. .