Boota Singh vs State of Haryana

V.K. Bali, J.

Buta Singh and three others have since been held guilty under Sections 326/325/324/323 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment as follows, vide orders passed on that behalf by Judicial Magistrate Ist Class, Sirsa, on October 22, 1986 :

Under Section 326/34 IPC : RI for two years and to pay a fine of Rs. 500/ each, or in default of payment of fine, to further undergo RI for one month.

Under Section 325/34 IPC : RI for one year.

Under Section 324/34 IPC : RI for six months.

Under Section 323/34 IPC : RI for three months.

Since they were unsuccessful in their endeavour to get the order of conviction and sentence set aside from the appellate Court, present revision has been filed.

The prosecution case has been that Arjan Singh, while in the hospital, made a statement that his brother Surjan Singh was not of sound mind and that he had taken land of Didar Singh son of Jagat Singh for paddy growing at half share of batai. There were fields of Kishan Singh near the said land. On August 28, 1981 at about 1 P.M., when he and his brother Surjan Singh were picking grass from the paddy, his brother Surjan was murmuring loudly. Buta Singh and Ranjit Singh came there. They came to his fields while abusing and protested against the loud noise of Suraj Singh, who did not keep silent. At this, he tired to persuade all others while stating that he was not speaking against anybody. All the four persons went back to their fields and after some time, Satnam Singh, armed with an axe, Buta Singh, Ranjit Singh and Jaswant Singh armed with Lathis came there and Buta Singh raised an alarm to teach lesson to Surjan Singh to make loud noise. Satnam Singh caught hold of Surjan Singh while Jawant Singh gave a lithi blow on left arm and second blow on right arm of Surjan Singh. Buta Singh gave a lathi blow on the head of Surjan Singh. Ranjit Singh gave a lathi blow on right ear and another blow on chest and yet another blow on left foot jaw of Surjan Singh. Surjan Singh fell down. Thereafter, Satnam Singh give an axe blow on the head of complainant while Buta Singh gave two lathi blows at his back. Ranjit Singh and Jaswant Singh also gave two lathi blows each on the left and right eyes of complainant. The injured were saved by Balwinder Singh, who had also seen the occurrence. On receipt of information, Richhpal Singh, brother of the injured, came there on a tractor and took them to hospital.

On receipt of information, police went to the hospital where statement of Arjan Singh was recorded, on the basis of which formal FIR was registered.

In its endeavour to bring home the offence against the petitioners, prosecution examined Dr. D.K. Bhardwaj PW1, who had medicolegally examined Arjan Singh and Surjan Singh. Arjan Singh was examined as PW4. Neki Ram Inspector was examined as PW5. He detailed the steps that he had taken while investigating the case. Dr. K.B. Singh was also examined as PW6 who had prepared xray report of injured Arjan Singh and Surjan Singh.

When examined under Section 313 Cr.P.C., petitioner pleaded false implication and examined one witness in defence.

On the basis of evidence, brief narration whereof has been given above, the trial Magistrate returned a finding of guilt against the petitioners and sentenced them in the manner, fully indicated above. As mentioned above, appeal filed by the petitioners met with no success.

I have heard Mr. R.K. Singla, learned PP appearing on behalf of the State of Haryana and gone through the records of the case, which are available. It has, inter alia, been pleaded in the memorandum of revision that Section 34 would not be attracted in the facts and circumstances of the present case and that being so, petitioners could be convicted only on the basis of the injuries attributed to them. It has also been pleaded that there was hardly any motive that might have actuated the petitioners to commit the crime and that there was an inordinate and unexplained delay in lodging the FIR as also that no case under Section 326 IPC was made out as per the medical evidence. It has also been pleaded that the medical evidence belies the ocular evidence and that there are material discrepancies in the prosecution story. It has also been pleaded that the petitioners ought to have been given the benefit of Sections 360 and 361 of the Code of Criminal Procedure as also Section 4 of the Probation of Offenders Act which had since been denied to them without giving any reasons as also that the sentence in any case is too harsh. It has also been pleaded that the statements of petitioners recorded under Section 313 Cr.P.C. are not in consonance with law.

After evaluating the evidence in the context of memorandum of revision, I find no blemish in the prosecution version. In so far as way and manner in which occurrence took place in concerned, there does not appear to be any doubt. There is no substance in the contention that there was delay in lodging the F.I.R. and the provisions of Section 34 of the Indian Penal Code are not attracted. The injured had reached the hospital at 3 P.M. on the eventful day and soon thereafter Arjun Singh had regained consciousness his statement was recorded by the police official. If even after recording the statement of injured the F.I.R. was registered later in point of time, the prosecution case cannot be thrown on that ground. The very fact that the petitioners herein after wordy duel had gone to their place and returned at the place of occurrence duly armed would straightaway attract the provisions of Section 34 of the Indian Penal Code.

However, in so far as the nature of offence is concerned, this Court is of the view that they cannot be convicted under Section 326 of the Indian Penal Code. As per the statement of PW1 Dr. D.K. Bhardwaj, Surjan Singh had received seven inquires. Injuries 1 and 2 were grievous in nature while injuries 5 and 6 were simple. Injuries 3, 4 and 7 were kept under observation. All the injures had been caused by blunt weapon within a duration of six hours. Arjan Singh was found to be having eight injuries. When brought to the hospital, he was semi conscious. All the eight injuries were kept under observations. Injury No. 1 was caused by sharp edged weapon whereas other injuries were caused by blunt weapon within a duration of six hours. In the opinion of the doctor, injuries 1 to 5 were serious in nature whereas rest of injuries were simple. Injury No. 1 has been described by the doctor as follows :

"6 cm x 1 cm x bone deep incised wound on the left occipital parietal area. Placed obliquely. Starting from exact centre of scalp. Margin incised and muscle fibres cut across. Fresh blood was oozing."

As has been mentioned above, injury No. 1 was caused by sharp edged weapon. PW6 Dr. K.B. Singh, who had xrayed Arjan Singh stated that he had found fracture of left tempopartietal bone. He had also found fracture of sixth, seventh, eighth and ninth thoracis ribs of left side of chest. He had also found fracture of shaft of both bones of left forearm of Surjan Singh. In his crossexamination, he, however, stated that he could not give the extent of fracture and that there was no fracture on the vital part of body on the person of Surjan Singh.

It may be recalled at this stage that in so far as Dr. D.K. Bhardwaj PW1 is concerned, he stated in his cross examination that he could not tell with regard to the fracture on the person of both Arjan Singh and Surjan Singh i.e. whether the fractures were fissured or scratched. He could not even tell the dimension and extent of the fracture. He stated that this fact can be ascertained from radiologist. He admitted that he had opined injuries No. 1 and 2 to be grievous on the person of Surjan Singh prior to xray report and he had judged these injuries by examination. As mentioned above, insofar as Dr. K.S. Singh PW6 is concerned, he could not give the extent of fracture in so far as injury No. 1 on the person of Arjan Singh is concerned. It may also be mentioned at this stage itself that injury No. 1 alone which according to the prosecution was a grievous one was caused by a sharpedged weapon so as to bring the offence under the ambit of Section 326 of the Indian Penal Code.

From the evidence that has been discussed above, a doubt arises in the mind of Court as to whether injury No. 1 on the person of Arjun Singh resulted in fracture. The petitioners, thus, deserve benefit of doubt. In so far as offence under Section 326 of the Indian Penal Code is concerned, giving them, thus, the benefit of doubt, I acquit them under Section 326 of the Indian Penal Code. The petitioners are, however, proved to have caused various injuries coming within the ambit of Sections 323, 324 and 325 of the Indian Penal Code but inasmuch as they are facing trial ever since 1981, it will be in the interest of justice to give them benefit of Sections 360 and 361 of the Code of Criminal Procedure and thus to release them on probation. The petitioners are held guilty under various Sections as ordered by the Courts below but for Section 326 of the Indian Penal Code, but are ordered to be released on probation for a period of one year. They shall execute bonds undertaking therein to keep peace and be of good behaviour for one year. Counsel for the petitioners is not present. This order be communicated to all the petitioners and they be asked to furnish the relevant bonds within a fortnight from the receipt of copy of this order.

This revision, thus, meets with partial success and to the extent aforesaid is allowed.

Revision partly allowed.