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2018 DIGILAW 1619 (RAJ)

Harnek Singh Jat Sikh v. State of Rajasthan

2018-08-01

MANOJ KUMAR GARG

body2018
JUDGMENT Manoj Kumar Garg, J. - Instant appeal has been filed by the appellant challenging the order dated 1.5.1993 passed by learned Addl. Sessions Judge No. 2, Sriganganagar in Sessions Case No. 6/1992 by which the Trial Court convicted the present appellant for offence under Section 326 I.P.C. and sentenced to three years rigorous imrpisonment and fine of Rs. 1000/-, in default of payment of fine to undergo two months S.I. 2. Briefly stated, the prosecution case as set up is that one F.I.R. was filed by Sahi Ram on 21.10.1991 stating therein that he has some dispute with Harnek Singh regarding one plot and litigation is going on between them. On the said date, at 11 A.M. when he was sleeping near the gate of the house, at that time his son Dulichand came there who was chased by Harnek Singh and his sons Joga Singh and Jeet Singh also came there. It was stated that Harnek Singh having Gandasi, Jeet Singh having Kasiya and Joga Singh having lathi attacked Duli Chand. When he tried to intervene then Harnek Singh inflicted gandasi blow on his head and all the three accused beating to him. Upon hearing the shouting Ranvir, Subhash, Ganga Ram and Indraj came and all the accused ran away. 3. On the basis of the above report, police registered a case for offence under Sections 324, 452/34 I.P.C. and started investigation. On completion of investigation, a charge-sheet was filed against the present appellant alongwith Joga Singh and Jeet Singh @ Ranjeet Singh for the offence under Sections 307, 325, 325/34, 450 I.P.C. Thereafter, the case was committed for trial in the Court of Additional Sessions Judge No. 2, Sriganganagar where charges of the case were framed against the accused persons. 4. During the course of trial, the prosecution examined as many as 8 witnesses and got exhibited various documents. The statement of accused were recorded under Section 313 Cr.P.C. but no witness was examined in defence. 5. After considering the testimonies of the prosecution witnesses and the material available on record, the learned Additional Sessions Judge No. 2, Sriganganagar acquitted the co-accused Joga Singh and Jeet Singh @ Ranjeet Singh and appellant/accused for offences under Sections 450, 307, 325, 325/34 I.P.C. but convicted and sentenced the present appellant for offence under Section 326 I.P.C. Hence, this appeal. 6. Learned Counsel for the appellant Mr. 6. Learned Counsel for the appellant Mr. Vishal Singhal argued that there are cross cases between the parties and present appellant Harnek Singh also filed F.I.R. against the complainant party and ultimately, challan was presented against the complainant party for the offences under Sections 325, 324, 323, 341/34 I.P.C. He argued that accused appellant Harnek Singh received as many as five injuries and as per injury report Ex.D/5 and X-ray report Ex.D/4, the present appellant received grievous injuries on 7th, 8th and 10th rib. It is argued that the aggressor was the complainant party and appellant has also received injuries. Further the similarly situated co-accused have already been acquitted by the Trial Court, therefore the conviction and sentenced recorded by the learned Trial Court against the appellant may be set aside. In the alternate, it is prayed that the incident took place as back as in the year 1991 and appellant remained in custody for about six days and at present the age of appellant is about 70 years, therefore, it would not be proper to send the appellant to custody and accordingly, the substantive sentence awarded to the petitioner for the aforesaid offence may be reduced to the period already undergone by him. 7. On the other hand, the learned Public Prosecutor opposed ti submissions made by the learned Counsel for the appellant. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the said case. 8. I have carefully examined the record and considered the rival contention Admittedly, there are cross cases between the parties and the appellant has also received as many as five injuries out of which one injury is found to be grievous in nature but on the other side, in the very case, Sahi Ram has received two injuries out of which one injury is on head and specifically assigned to appellant moreover, the injury was found to be grievous in nature. Therefore, the order of conviction recorded by the Trial Court for offence under Section 326 I.P.C. liable to be upheld. Therefore, the order of conviction recorded by the Trial Court for offence under Section 326 I.P.C. liable to be upheld. However, the occurrence relates back to year 1991 an appellant is now aged about 70 years, therefore, it will be just and proper if the sentence awarded by the Trial Court for offence under Section 326 I.P.C. is reduced to the period already undergone while enhancing the amount of fine imposed for offence under Section 326 from Rs. 1000/- to 10,000/-. 9. Hon'ble Supreme Court in the case of Naib Singh v. State of Punjab, reported in 1986 Cr.L.R. SC 468 considering the fact that the incident had taken place 13 years back reduced the sentence of imprisonment to the period a under "The appellant is a teacher in a Government school. The circumstances brought out by the prosecution evidence show that he acted in the heat of moment. Looking to the fact that the incident occurred on 22nd April, 73 some 13 years back, we do not think it desirable to send the appellant back to jail. We, accordingly, reduce the sentence of rigorous imprisonment till the rising of the Court and to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo rigorous imprisonment for 6 months." 10. This Court while considering the case of Naib Singh (supra) in the case of Damodar Prasad v. State of Rajasthan reported in RLW 1988 (2) Raj. 451 held as under "Looking to the facts and circumstances of the case as mentioned hereinabove, and in the light of the observations made in the case of Naib Singh (supra) by Hon'ble the Supreme Court, the appeal is partly allowed. The accused- appellant is not found guilty under Section 307, I.P.C. His conviction and sentence under this section, are therefore set aside. He instead, is convicted under Section 326, I.P.C., and sentenced to imprisonment already undergone by him and a fine of Rs. 1,000/-, and in default of payment of fine, he shall undergo rigorous imprisonment for one month. Two month's time is granted to the accused-appellant for depositing the fine." 11. Accordingly, the appeal is partly allowed. While maintaining the appellant's conviction for offence under Section 326 I.P.C., the sentence awarded to him for a period of 3 years R.I. is reduced to the period already undergone, however, the amount of fine is enhanced from Rs. Two month's time is granted to the accused-appellant for depositing the fine." 11. Accordingly, the appeal is partly allowed. While maintaining the appellant's conviction for offence under Section 326 I.P.C., the sentence awarded to him for a period of 3 years R.I. is reduced to the period already undergone, however, the amount of fine is enhanced from Rs. 1000/- to Rs. 10,000/-. The aforesaid fine shall be deposited by the appellant in the Trial Court within three months from the date of this order, said amount shall be disbursed to the injured Sahi Ram. In default of such deposit within the stipulated period, this appeal Shall stand dismissed and the appellant shall be sent to jail to serve remaining sentence. The record of Trial Court be sent back forthwith.