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2010 DIGILAW 194 (PNJ)

Sanjiv Kumar v. State Of Punjab

2010-01-11

T.P.S.MANN

body2010
Judgment T.P.S.MANN, J. 1. The appellants have filed the present appeal against the judgment and order dated 11.5.1998 passed by Additional Sessions Judge, Jalandhar. Vide impugned judgment, Sanjiv Kumar-appellant was convicted under Sec.308 IPC while Rajesh Kumar @ Raju under Sec.308 read with Sec.34 IPC and both of them were sentenced to undergo RI for a period of one year and to pay a fine of Rs.300/- each. In default of payment of fine, they were to undergo further ri for a period of two months. 2. The FIR was registered on the basis of statement Ex. PD made by nirmala Kumari PW4. She stated therein that her husband Dhani Ram Kapur was working in the Irrigation Department at Pathankot. He would visit Jalandhar on the evening of every Friday. On 10.3.1995 her brother Devinder Kumar had come to meet her at about 6.30 p. m. At that time she was washing the floor of her house. In the meantime, both the appellants came there and asked her as to why she had thrown the dirty water in the street. The complainant told them that she had washed the clothes and the dirty water would pass into the drain. Both the appellants started abusing her. When her husband prevented them, they went back to their respective houses. At about 8.15 p. m. when the complainant and others were talking to each other in her house, both the appellants again came there and started abusing her. The complainant enquired from them as to why they were abusing. On this, both of them stated that they would teach her a lesson for throwing the water in the street. The appellants picked up brick bats and went on the roof of their house and started throwing brick bats. Brick bat hurled by Sanjiv Kumar hit on the head of her brother Devinder Kumar, who fell down and became unconscious. On an alarm being raised by the complainant and her husband, both the appellants fled away from the scene. 3. Devinder Kumar was medico-legally examined by Dr. Ramesh Kumar of civil Hospital, Jalandhar who found a lacerated wound of 2cm x 1cm x bone deep on the left side of the scalp. The injury was kept under observation. Dr. On an alarm being raised by the complainant and her husband, both the appellants fled away from the scene. 3. Devinder Kumar was medico-legally examined by Dr. Ramesh Kumar of civil Hospital, Jalandhar who found a lacerated wound of 2cm x 1cm x bone deep on the left side of the scalp. The injury was kept under observation. Dr. Munish bansal of D. M. C. Ludhiana also medically examined the injured and gave his report to the effect that the injury found on the scalp of injured Devinder kumar was grievous in nature. Dr. R. K. Kaushal gave an opinion on the application moved by the police that the injury found on the person of Devinder Kumar was dangerous to life on the basis of findings at the time of operation. 4. The case was initially registered under Sections 325/34 IPC. However, in view of the aforementioned report declaring the injury on the person of Devinder Kumar to be dangerous to life, the police added the offence under Sec.308 IPC to the heading of the FIR. The investigation was conducted by Sub Inspector Surinder Singh, who went to the spot and prepared rough site plan. He also recorded the statements of the witnesses and arrested the accused. After completion of the investigation, challan was submitted by sub Inspector Mukhwinder Singh. After commitment of the case, Additional sessions Judge, Jalandhar charge-sheeted Sanjiv Kumar accused under Section 308 IPC and Rajesh Kumar accused under Sec.308 read with Sec.34 IPC, to which they pleaded not guilty and claimed trial. In support of its case, the prosecution examined Dr. Ramesh Kumar PW1, Dr. Munish Bansal PW2, Dr. R. K. Kaushal PW3, Smt. Nirmala Kumari-complainant PW4, Devinder Kumar-injured pw5 and SI Surinder Singh PW6. 5. When examined under Sec.313 Cr. P. C. , both the accused pleaded false implication. In defence, the accused produced DW1 Ram Sarup. 6. After hearing learned counsel for the parties and perusing the evidence brought on the file, learned trial Court believed the prosecution version regarding causing of a brick bat injury by Sanjiv Kumar on the head of Devinder Kumar-injured making him liable for offence under Sec.308 IPC whereas Rajesh Kumar, being present at the time of occurrence and sharing the common intention with Sanjiv Kumar, was held guilty under Sec.308 read with Sec.34 IPC. None has appeared on behalf of the appellants. None has appeared on behalf of the appellants. However, with the able assistance of learned State counsel, I have gone through the evidence minutely. 7. As per the testimony of Nirmala Kumari, both the accused had come to her house at 6.30 p. m. on 10.3.1995 and protested as to why she had thrown the water in the street. Her explanation that she had washed the clothes and the dirty water passed into the drain, did not satisfy them. They abused the complainant and then went towards their respective places. However, both the accused, once again, came to her house at 8.15 p. m. on the same day and started abusing her. They told her that they would teach her a lesson for throwing water in the street. Both the accused picked up brick bats and went on the roof of their house and started throwing brick bats. The brick bat thrown by Sanjiv kumar hit on the scalp portion of Devinder Kumar, brother of the complainant. To the extent that the brick bat thrown by Sanjiv Kumar had hit the injured, the testimony of Nirmala Kumari is corroborated by the injured. There was some delay in lodging of the FIR, although the prosecution tried to explain the same in the light of the opinion obtained from the doctor that Devinder Kumar-injured was not fit to make statement. Even if Devinder Kumar was not fit enough to make statement before the police, the complainant was very much an eye witness of the incident in question and she could have informed the police about the occurrence. It appears that as Rajesh Kumar was shown to be present in the earlier incident, which occurred at 6.30 p. m. he was also named as an accused in the main occurrence, which occurred at 8.15 p. m. Though Rajesh Kumar was also attributed hurling of brick bats upon the complainant but none was hit as a result thereof. Accordingly, a case is made out for extending the benefit of doubt in so far as involvement of Rajesh Kumar @ Raju, is concerned. The participation of Sanjiv Kumar in the occurrence in question stands duly established from the testimonies of Nirmala Kumari PW4 and of her injured brother Devinder Kumar pw5. The medical evidence corroborated the ocular account stated by them. The participation of Sanjiv Kumar in the occurrence in question stands duly established from the testimonies of Nirmala Kumari PW4 and of her injured brother Devinder Kumar pw5. The medical evidence corroborated the ocular account stated by them. On account of the fact that there was no serious enmity between the parties, learned trial Court was justified in convicting Sanjiv Kumar accused for an offence under Sec.308 IPC, as Dr. R. K. Kaushal PW3 had given his opinion ex. PD/4 that the injury found on the person of Devinder Kumar-injured was dangerous to life. Accordingly, the conviction of Sanjiv Kumar under Section 308 IPC is well merited. The incident in question had taken place on 10.3.1995. Sanjiv Kumar-appellant has been facing the agony of criminal prosecution during the last about 15 years. There was no serious enmity between the parties. Sanjiv Kumar-appellant was not attributed the use of any weapon in causing a solitary injury on the person of Devinder kumar. He had only hurled a brick bat, which hit on the person of Devinder kumar. Sanjiv Kumar-appellant is also not shown to be a previous convict. At the time of the incident, he was about 25 years of age. The offence under section 308 IPC is punishable with maximum imprisonment for seven years. Therefore, a case is made out for extending the benefit of probation to Sanjiv kumar-appellant instead of requiring him to undergo the sentence. 8. Resultantly, the appeal of Rajesh Kumar @ Raju is accepted and he is acquitted of the charge under Sec.308 read with Sec.34 IPC. The amount of fine, if already paid by him, be refunded. The conviction of Sanjiv kumar-appellant for offence under Sec.308 IPC is maintained. However, in lieu of the sentence, he is ordered to be released on probation on his furnishing personal bonds in the sum of Rs.20,000/- with one surety of the like amount to the satisfaction of Chief Judicial Magistrate, Jalandhar, for maintaining peace and to be of good behaviour for a period of two years. The fine imposed upon Sanjiv Kumar-appellant by the trial Court shall be treated as compensation. In the event of his violating the terms and conditions of the probation bonds, he shall have to undergo sentence of imprisonment imposed upon him by the trial Court.