Buri and anr. vs State of Punjab

K.P.S. Sandhu, J. (Oral)

This appeal by Buri and Kirpal Singh is directed against the order of conviction recorded by the Additional Sessions Judge, Ferozepur, vide his order dated 5th April, 1983. Both the appellants stand convicted and sentenced to rigorous imprisonment for two years and fine of Rs. 100 each, in default further rigorous imprisonment for one month each, under section 326/34 of the Indian Penal Code and to rigorous imprisonment for one year each under section 324/34, Indian Penal Code. The substantive terms of the imprisonment have been ordered to run concurrently.

Both the appellants are related to each other.

About one month prior to this occurrence which took place on 24th May, 1982, Kirpal Singh appellant had broken photographs in the village gurdawara under the influence of liquor. Nath Singh PW and Gian Singh sarpanch asked Kirpal Singh to desist from his behaviour. On the day of occurrence at about 10 a.m. Natha Singh PW was lying on a cot in an open space near his house. Both the appellants appeared there. Kirpal Singh appellant was armed with a toki and Buri appellant was armed with a kassi. On the exhortation of Kirpal Singh appellant, Buri appellant gave a kassi blow which landed on the right side of the neck of Natha Singh PW. Kirpal Singh appellant gave a toki blow on the right side of the neck of Natha Singh PW. Sadha Singh PW6 son of Natha Singh and Mohinder Kaur, his daughter, witnessed the occurrence. On their alarm both the appellants ran away with their weapons. Natha Singh PW was taken to Primary Health Centre, Kot Ise Khan, by Sadha Singh PW where he was medically examined by Dr. Surinderpal SIngh PW2 on 24th May, 1982, at about 3 p.m. who found the following injuries on his person :

Incised wound 31/2 cm x 1 cm x bone deep on the right side of mandible at its angle. It was 6 cm below the pinna of ear. The surrounding area was swollen. Blood clots were present.

Linear incised wound 81/2 cm in length on the right side of neck extending obliquely up to the posterior aspect of the neck. The wound was 6 cm vertically below the pinna and its anterior end approached the angle of mandible. The surrounding area was sligthly swollen.

Both the injuries were the result of a sharpedged weapon. These were kept under observation. Natha Singh was radiologically examined by Dr. S.K. Gupta PW1 who found cut fracture of the mandible on the right side. According to the doctor, the chilp was removed by a sharpedged weapons from the mandible.

On receipt of medicolegal report Assistant SubInspector Sher Singh of Police Station, Zira went to the hospital and recorded the statement of Natha Singh which is Exhibit PF. On the basis of the same, formal first information report Exhibit PF/2 was recorded at Police Station, Zira, on 24th May, 1982. The appellants were arrested on 5th June, 1982. After due investigation they were sent up for trial.

When examined under section 313 of the Code of Criminal Procedure, the appellants took up the plea of denial simpliciter and pleaded false implication at the instance of Gian Singh sarpanch. They, however, did not examine any person in defence.

Apart from Dr. S.K. Gupta PW1 and Dr. Surinderpal Singh PW2 whose evidence has been referred to in the earlier part of the judgment, the prosecution examined Sunder Singh draftsman PW3 who prepared site plan Exhibit PE. PW4 Gian Singh sarpanch of the village deposed regarding motive. PW5 Natha Singh injured and his son Sadha Singh PW6 are the eyewitnesses of the occurrence. PW7 Sher Singh Assistant SubInspector investigated the case.

Mr. R.S. Ghai, learned counsel for the appellants, has mainly relied upon the two findings arrived at by the learned trial Judge. According to the learned trial Judge, both Natha Singh injured and his son Sadha Singh have given different times of the occurrence. According to Natha Singh, the occurrence took place at about 10 a.m. while, according to Sadha Singh, the occurrence took place at about 1 pm. The learned trial Judge also came to a finding that their statements were at variance as far as the time and date of the recording of the first information report were concerned. I do not think that these discrepancies in their statements are sufficient to discard their version in view of the peculiar circumstances of this case. There is no history of previous enmity between the injured and the appellants. Thus the prosecution witnesses had no animus to falsely implicate the appellants and leave out the real culprits. The occurrence took place in broad daylight. So, there was no question of mistaken identity. In my view, the evidence of Natha Singh and Sadha Singh PWs inspites confidence.

Lastly Mr. R.S. Ghai has argued that there is only a chip fracture on the mandible as reported by the radiologist. In this regard he has relied upon State of Bihar v. Naib Singh, 1978 CLR 264, where their Lordships were pleased to hold that in such cases though the injury would be described as grievous one but the extent of damage to the bone would be a consideration with the Court in the matter of sentence. I find that although the injury is on a vulnerable part of the body but it is still a chip fracture. I think a case for reduction in the sentence is made out. Consequently, I reduce the sentence of rigorous imprisonment from two years to one year each under section 326/34 IPC. However, both of them would pay Rs. 250 each as fine, in default further rigorous imprisonment for three months. The fine of Rs. 100, if paid by them, would be adjusted. The fine, if recovered, would be paid to Natha Singh injured. The substantive terms of imprisonment would run concurrently. With this modification the appeal fails and is dismissed.