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2010 DIGILAW 2085 (PNJ)

Malkiat Singh Etc. v. State Of Punjab

2010-07-22

SABINA

body2010
Judgment Sabina, J. 1. Appellants were convicted for an offence under Sections 304 Part I and 452 of the Indian Penal Code (`IPC for short) by the Additional Sessions Judge Hoshiarpur vide judgment dated 16.5.2000. Vide order of even date, they were sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 4000/- each under Section 304 Part I IPC and they were also sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/- each under Section 452 IPC. Both the sentences were ordered to run concurrently. Hence, the present appeals by the appellants. 2. The brief facts of the case, as noticed by the trial Court, read as under :- "Briefly stated the case of the prosecution is that Khushi Ram, caste Ad-dharmi, resident of village Anandgarh, P.S.Sadar Hoshiarpur, was living with his son Chaman Lal, who was employed as constable in the Punjab Police. Khushi Ram owns a plot in the abadi of village Anandgarh where about 13/14 trees were standing. The trees were of various kinds, such as, Tahli, Safeda etc. Out of those trees, 6/7 trees were cut by Malkiat Singh and his sons. Malkiat Singh is the brother of Chaman Lal and son of Khushi Ram and is residing separately from Khushi Ram and his son-Chaman Lal. Khushi Ram and Chaman Lal showed their grievance to Malkiat Singh accused and the matter was reported to the police but compromise was effected. On the same day, i.e. 1.10.1997 at about 6.00 P.M. Chaman Lal came to his village Anandgrh from Hoshiarpur-PW Sheela Devi at whose instance, the case has been registered was present in her house alongwith her children. PW Sheela Devi wife of Chaman Lal heard raula in the street and she went to the street and saw that Malkiat Singh armed with dang, his son Om Parkash alias Pappu armed with Gandassi and Jaswinder Singh alias Deepa armed with a Faura (wooden tool for collecting dung) and accused Binder, son-in-law of Malkiat Singh amed with Sota were scuffling in the street. Malkiat Singh was saying that matter regarding the dispute of trees should be finished. PW Sheela Devi raised raula `Na Maro Na Maro and on hearing the raula, Ram Lal son of Karam Chand and Paramjit came to the spot. Malkiat Singh was saying that matter regarding the dispute of trees should be finished. PW Sheela Devi raised raula `Na Maro Na Maro and on hearing the raula, Ram Lal son of Karam Chand and Paramjit came to the spot. All the accused started throwing brick bats at Chaman Lal, husband of Sheela Devi, PW. The accused also started throwing brick bats in the house of PW Sheela Devi. Accused Binder opened the door of the house of Sheela Devi and accused Om Parkash gave a Gandassi blow to Chaman Lal, which hit on the back of his head, as a result of which Chaman Lal became unconscious and fell on the ground. While he was lying on the ground, all the accused continued giving injuries with their respective weapons. PW Sheela Devi, Ram Lal and Paramjit raised alarm and the accused ran away after leaving the Faura and the pair of shoes at the spot. On the basis of statement made by PW Sheela Devi, before Ram Singh, Inspector of PS Sadar Hoshiarpur, the present case has been registered against the accused." 3. Learned counsel for the appellants has submitted that the prosecution has failed to prove its case. The dispute had arisen between the parties who were related to each other. Malkiat Singh and Jaswinder Singh had also suffered injuries. The said injuries had not been explained by the prosecution. As per the FIR, Om Parkash had given a gandassi blow on the head of the deceased, whereas, as per witnesses, while appearing in the witness box, he had attributed injuries to appellant-Jaswinder Singh also with a Faura on the head of deceased-Chaman Lal. As per the medical evidence, there was only one injury on the person of the deceased. Learned counsel has further stated that in civil suit filed by Malkiat Singh and others Rs. 3,00,000/- have been allowed as damages to the family members of deceased-Chaman Lal. 4. Learned State counsel, on the other hand, has submitted that the prosecution had successfully proved its case. Eye witnesses had duly proved the prosecution case which was corroborated by the medical evidence. 5. As per PW 1 Dr.O.P. Gojra, Medical Officer, the following injuries were found on the person of deceased:- "1. A difused swelling over the left side and top of the scalp. On dissection clotted blood was present over the skull and beneath the scalp. Eye witnesses had duly proved the prosecution case which was corroborated by the medical evidence. 5. As per PW 1 Dr.O.P. Gojra, Medical Officer, the following injuries were found on the person of deceased:- "1. A difused swelling over the left side and top of the scalp. On dissection clotted blood was present over the skull and beneath the scalp. On removal of clot multiple fractures of left temperal bone were present. A fractured would of left parietal bone was depressed and piercing the brain. On further dissection membrances were lacterated. Brain matter was also lacerated and haematoma was present" 6. As per the FIR, which was recorded on the basis of the statement of Sheela Devi, the accused had come to the spot and Om Parkash gave a gandassi blow on the head of her husband- Chaman Lal and he fell down. Thereafter, the other accused also inflicted injury on the person of her husband while he had fallen down. Sheela Devi, while appearing in the witness box as PW 3,however, deposed that Om Parkash had given a gandassi blow on the head of Chaman Lal. Thereafter, Jaswinder Singh gave a Faura blow on the head of Chaman Lal . To the similar effect is the statement of PW 4 Ravina, daughter of the deceased and PW 5 Paramjit Singh. Thus, the eye witnesses, while appearing in the witness box, have given improved versions and the said versions were not corroborated by the medical evidence. As per PW 1, there was one injury on the person of the deceased on his head. On account of the said injury, the deceased had suffered multiple fractures of left temperal bone. 7. As per DW4, Dr. Aruna Kumar, Medical Officer, Malkiat Singh was examined on 1.10.1997, the following injuries were found on his person :- "1. A lacerated wound 2.1 cm x 0.25 cm over the left half of forehead 0.5 cm from the midline. Fresh bleeding present. Advised x-ray. 2. Diffused reddish Swelling over post medical aspect on the lower half of right forearm. Advised x-ray 3. Redish abrasion .3x.5 cm over the back of right elbow 4. Diffused reddish blue contusion 8.5 cm x 1.7 cm oblique over post lateral aspect of middle. One third of right arm. Diffused swelling on contusion Advised x-ray." 8. Advised x-ray. 2. Diffused reddish Swelling over post medical aspect on the lower half of right forearm. Advised x-ray 3. Redish abrasion .3x.5 cm over the back of right elbow 4. Diffused reddish blue contusion 8.5 cm x 1.7 cm oblique over post lateral aspect of middle. One third of right arm. Diffused swelling on contusion Advised x-ray." 8. DW5, Doctor Kimti Lal, Medical Officer deposed that on 2.10.1997, he has examined Jaswinder Singh and found the following injuries on his person :- "1. A lacerated wound on the scalp 5 cm x 0.5 cm x 0.5 cm. 15 cm. away from the occipital point. Clotted blood present. Reddish brown colour. Advised x-ray. 2. Diffused swelling inner aspect of right forearm and wrist Reddish colour 12 cms. 6 cm size. Patient complained of pain and tenderness. Advised x-ray. 3. An abrasion size 6 x 4 cm. Reddish bluish in colour on the right shoulder backside, five cm away from the shoulder joint. 4. An abrasion 12 cm x .5 cm. Reddish blue about 10 cm away from the right shoulder joint, lying in transverse direction. 5. An abrasion 5 cm x .3 cm on the back about 40 cm away from the occipit in the midline of the spine. 6. An abrasion 6 m x .3 m reddish and purple in colour about 10 cm away from injury No. 5 on the right side back. 7. Patient complained of pain in left thigh. No external mark of any injury visible Advised x-ray. 8. A bruise purplish in colour 10 cm x 3 cm lying on the back 6 cm away from the injury No. 5" 9. PW 4 Ravina, daughter of the deceased, in her crossexamination, admitted the factum of admission of Malkiat Singh and Jaswinder Singh in the hospital. 10. Parties are closely related to each other. The deceased Chaman Lal is the brother of appellant- Malkiat Singh. Om Parkash and Jaswinder Singh are sons of Malkiat Singh. The occurrence had,allegedly taken place at 6.00 P.M. on 1.10.1997. The dispute had arisen between the brothers as some trees had been cut by Malkiat Singh and his sons from the plot of the complainant party. In the alleged occurrence, Jaswinder Singh and Malkiat Singh had also suffered injuries. The said injuries have not been explained by the prosecution. The occurrence had,allegedly taken place at 6.00 P.M. on 1.10.1997. The dispute had arisen between the brothers as some trees had been cut by Malkiat Singh and his sons from the plot of the complainant party. In the alleged occurrence, Jaswinder Singh and Malkiat Singh had also suffered injuries. The said injuries have not been explained by the prosecution. Rather it has been denied by the complainant party that Chaman Lal had inflicted injuries on the persons of Malkiat Singh and Jaswinder Singh. Since, there is only one injury on the person of the deceased- Chaman Lal, it cannot be inferred that all the accused had shared a common intention qua causing of the injury on the person of deceased Chaman Lal. It appears that in the alleged occurrence where Malkiat Singh and Jaswinder Singh, appellants had also suffered injuries, Om Parkash, appellant gave a gandassi blow on the head of deceased- Chaman Lal. Om Parkash, apparently, had no intention to commit the murder of his brother but he had the intention of causing such bodily injury which was likely to cause death. Moreover, Om Parkash has not repeated the blow but has only given one injury on the person of the deceased. In these circumstances, the learned trial Court rightly convicted and sentenced the appellant- Om Parkash under Section 304 Part I IPC. However, since the appellants- Malkiat Singh and Jaswinder Singh had not inflicted any injury on the person of the deceased, the possibility that they have been falsely involved in this case cannot be ruled out. The improved versions given by the eye witnesses, while appearing in the witness box by implicating Jaswinder Singh to the effect that he has also caused injury to the head of the deceased with Faura is, however, not corroborated by the medical evidence as only one injury was found on the person of the deceased. 11. Accordingly, this appeal is partly allowed. The conviction and sentence, as ordered by the trial Court qua appellant No. 1 Malkiat Singh and appellant No. 2 Jaswinder Singh @ Deepa are set aside and they are acquitted of the charges framed against them. 12. So far as appellant-Om Parkash is concerned, he has already undergone about three years of actual sentence. The conviction and sentence, as ordered by the trial Court qua appellant No. 1 Malkiat Singh and appellant No. 2 Jaswinder Singh @ Deepa are set aside and they are acquitted of the charges framed against them. 12. So far as appellant-Om Parkash is concerned, he has already undergone about three years of actual sentence. Keeping in view the fact that the said appellant had not repeated the blow and is facing the criminal proceedings since the year 1997, it would be just and expedient to reduce the sentence qua imprisonment of the said appellant. Accordingly, the sentence qua imprisonment of the appellant- Om Parkash under Section 304 I IPC is reduced from ten years rigorous imprisonment to five years rigorous imprisonment but the sentence under Section 452 IPC is maintained. However, both the sentences shall run concurrently as already ordered by the trial Court.