Dharam Singh and ors. vs State of Punjab

B.S. Yadav, J.

The present appellants Dharam SIngh, Karam Singh, and Daljit Singh (hereinafter also referred to as accused) and their coaccused Kaku alias Kuldip Singh and Dalbir Singh were prosecuted in the Court of Judicial Magistrate Ist Class, Amritsar, Dharam Singh, Karam Singh, Kaku alias Kuldip Singh and Dalbir SIngh were convicted under section 147 of the Indian Penal Code while Daljit SIngh under sections 326 & 323 read with section 149 of the Indian Penal Code. Dharam Singh and Karam Singh each were convicted under Sections 326 and 323, both reads with section 149 of the Indian Penal Code. They were sentenced to various terms of imprisonment for the above offences. It may be mentioned here that Dharam Singh and Karam Singh accused are brothers while the remaining accused are the sons of Dharam Singh.

Feeling aggrieved against their convictions and sentences they filed an appeal which was heard by Shri P.C. Singal, Additional Sessions Judge, Amritsar. He acquitted Kaku alias Kuldip Singh and Dalbir SIngh of all the charges while Daljit SIngh was acquitted of the offence under section 148 of the Indian Penal Code. The convictions of the remaining accused for the remainings offences were maintained with the modification that the accused who were earlier convicted vicariously with the aid of section 149 were so held with the aid of section 34 of the Indian Penal Code. The sentences, however, for those offences were maintained.

The prosecution story as gathered from the evidence is that on 31st November, 1977 Dalbir Singh accused had come to the house of P.W. 1 Harbans Singh in a drunken condition P.W. 3 Gurbinder Singh son of said Harbans Singh and pappu escorted Dalbir Singh to the latter''s house. However, on reaching there Dalbir Singh fell down. Daljit Singh and Kaku alias Kuldip Singh, brothers of Dalbir Singh, grappled with Gurbinder Singh. Gurbinder Singh returned to his house.

On 2nd December, 1977, at about 9 A.M. Harbans Singh and his son Gurbinder Singh were present inside their house. The petitioners and the acquitted accused came thee raising catcalls. At that time, Daljit Singh was armed with a kirpan, while Dalbir Singh and Kaku were armed with one sota each. Dharam Singh and Karam Singh were empty handed. All those five persons challenged Harbans Singh and Gurbinder Singh to come out of the house and said that they would be taught a lesson for the incident which had taken place on 31st November, 1977. Harbans Singh came out of the house. Dharam Singh and Karam Singh caught hold of Harbans Singh by his hair while Daljit Singh accused gave a blow with Kirpan which fell on the back of his left shoulder. Dalbir Singh and Kaku belabored him with their respective sotas. The occurrence was witnesses by said Gurbinder Singh and Jaspal Singh (P.W.2), who is nephew of Harbans Singh. When these witnesses raised raula, the accused went away.

Harbans Singh was removed to civil Hospital, Amritsar, where he was examined by P.W. 6 Dr. Narinder Kumar Aggarwal on the same day i.e. 2nd December, 1977. Eight injuries were found on his person. One was an incised wound measuring 5 cm x 1 cm, muscle deep in the centre on the upper side of back of upper left shoulder. The remainings were abrasions of various sizes on different parts of his body. In the opinion of the said doctor, the probable duration of the injuries was 6 hours. Injury No. 1 was opined to have been caused with sharpedged weapon and the rest with blunt one. Exhibit P.W. 6/A is the medical certificate prepared by him in relation to Harbans Singh injured.

Harbans Singh was radiologically examined by P.W. 4 Dr. R.N. Beri and he found fracture of acoromion process of the left shoulder.

Harbans Singh was discharged from the hospital on the evening of the same day i.e. 2nd December, 1977. He left for Police Post, Verka, on 3rd December, 1977 A.S.I., Darshan SIngh (P.W. 5), who in those days was posted in Police Post, Verka, met him at about 8 A.M. near the Milk Plant in Verka. Harbans Singh made his statement Exhibit PA before him. He Sent that statement to Police Station Sadar, Amritsar, and on its basis, formal First Information Report, Exhibit PA/1, was recorded by S.I. Shiv Dutt. After completion the investigation, the appellants as well as the acquitted accused were chargesheeted.

At the close of the prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure, Kaku, Dalbir Singh and Daljit Singh denied all the prosecution allegations. The plea taken up Dharam Singh and Karam SIngh is similar. Their plea, in the words of Karam Singh is :

"A few days prior to this occurrence, I alongwith my brother Dharam Singh passed through the fields of Harbans Singh p.W. 1 while we were carrying on our heads hands of parali. Harbans Singh P.W. objected to our heads pands of parali. Harbans Singh also asked me as well as my brother Dharam Singh to throw the pands of parali at his tubewell and he would not allow the same to be carried by us. We did so, I approached Narinder Singh, uncle of P.W. 1, Narinder Singh told me that he would speak to Harbans Singh and I should go and lift the parali. I alongwith Dharam Singh went to the fields of harbans Singh and lifted the parali. When I and Dharam Singh were passing with the pands of parali through gali near the kotha of Bhagwant Singh, we were attacked by Harbans Singh P.W. 1 and his servant Manjit SIngh, when they were armed with damages and caused us injuries. We grappled with Harbans Singh, when Harbans Singh also received injuries. Only I & my brother Dharam Singh were present. My coaccused Daljit Singh, Dalbir Singh and Kaku were not with us. I was medically examined."

It may be mentioned here that P.W. 6 Dr. Narinder Kumar Aggarwal had examined Dharma Singh on 2nd December, 1977, at 12.45 P.M. and found the following injuries on his person :

"1. A contusion, 3.5 cm x 2.5 cm, with an abrasion, 2.75 cm x .75 cm over it on the top of the head on the right side just near the mid line of the head.

A lacerated wound 2 cm x .75 cm, bone deep, with an abrasion, .3 cm x .75 cm, in continuation to the wound on the back and inner aspect of left forearm. In lower 1/3rd the wound was bleeding."

The said doctor had also examined Karam Singh accused on the same day at 1.05 P.M. and had found the following injuries :

"1. A contusion, 3 cm x 2 cm, with abrasion, 1.5 cm x .75 cm, on the top of the contusion and on front part of the head nar the midline.

An abrasion, 3.5 cm x 2 cm, on the site of the left chest on its upper part.

Two abrasions of .5cm x .5 cm and .25 cm x .25 cm on the left thumb on its outer aspect.

A contusion, cm x 2 cm, on the back of right lower leg near the ankle.''

In the opinion of the said doctor, the probable duration of the injuries of those persons was within 6 hours and were opined to have been caused with blunt weapon.

The learned counsel for the petitioners argued that though while exercising the revisional jurisdiction, the Court is not expected to appreciate the evidence again but in the present case there are special circumstances which require the Court to appreciate the evidence particularly because no explanation has been given by the complainant party about the injuries found on the persons of Dharam SIngh and Karan Singh accused. In view of the above submission, the learned counsel for the petitioner was allowed to argue the petition on merits.

The learned counsel for the petitioners argued that in the present case there has been 26 hours of unexplained delay in lodging the report with the police and this circumstances by itself makes the prosecution story doubtful. I am of the opinion that this argument has force. The occurrence took place on 2nd December, 1977 at 9 A.M. in front of the house of Harbans Singh injured in the abadi of village Vallah. As notice earlier, Harbans Singh was removed to Amritsar on the same day and was examined by P.W. 6 Dr. Narinder Kumar Aggarwal on the same day at 11 A.M. Harbans Singh was discharged from the hospital on the same day. According to him he was discharged at about sunset and, therefore, did not go to Police Station Verka to lodge the report and on the other hand returned to his village. He is a graduate but surprisingly enough he is not prepared to give the next time of his discharge. Police Station Saddar within whose jurisdiction the village of the parties falls, is situated only at a distance of 11/4 miles from the hospital at Amritsar. He could have easily covered that distance after he was discharged from the hospital. It would not be out of place to mention here that P.W. 6 Dr. Narinder Kumar Aggarwal has not stated that he had admitted Harbans Singh in the hospital. Harbans Singh left for police Post, Verka, on the next day i.e. 3rd December, 1977. That Police Post is situated at a distance of 4 miles from the parties'' village.

Harbans Singh has admitted that Jaspal SIngh (P.W.2) and Gurbinder Singh (P.W.3), who was tendered for crossexamination only, had not accompanied him to the hospital. Both these witnesses are said to be the eyewitnesses of the occurrence and close relations of Harbans Singh but surprisingly enough none of them went to Police Post, Verka, or Police Station Sadar Amritsar, to lodge the report. Jaspal Singh is nephew of Harbans Singh while Gurbinder Singh is Latter''s son. Therefore, as there has been unexplained delay in the lodging of the report to the police, the prosecution version will have to be scrutinized carefully when it is supported only by Harbans Singh and his nephew Jaspal Singh (P.W.2).

The learned counsel for the accused rightly pointed out that there was no motive with the accused party to assault Harbans Singh. According to Harbans Singh, two days prior to the occurrence dispute had taken place between his son Gurbinder Singh on the one part and Daljit Singh and Kaku alias Kuldip Singh accused on the other. That incident has already been narrated in the earlier part of the judgment. I am of the opinion that the said incident appears to have been fabricated by the complainant party. If Gurbinder Sing was escorting Dalbir Singh, who was in a drunken condition, to the latter''s house and he (i.e. Dalbir Singh accused) fell down then Gurbinder Singh (P.W.3) was not to be blamed for the incident. Gurbinder Singh was not examined on the point that as to why Daljit Singh and Kuldip Singh accused quarreled with him. On this point Gurbinder Singh was a material witness but surprisingly enough the prosecution tendered him only for the purpose of crossexamination and therefore, it will have to be held that prosecution has failed to prove motive on the part of the accused party to be labour Harbans Singh. Even if for argument''s sake it is held that the accused had some motive against the complainant party then Gurbinder Singh would have been the target. Gurbinder Singh is said to have witnessed the occurrence but surprisingly enough it is not the plea of Harbans Singh and Jaspal Singh that any of the accused tried to assault him i.e. Gurbinder Singh. Thus the absence of the motive on the part of the accused party to assault Harbans Singh makes the prosecution story doubtful.

The learned counsel for the petitioners argued that if Dharam Singh and Karam Singh had accompanied the other accused to assault Harbans Singh or Gurbinder Singh then they would have also armed themselves and on the other hand, the prosecution wants the Court to believe that these two accusedpetitioners came unarmed. The above argument has force. If these two petitioners had accompanied their coaccused to the house of Harbans Singh to teach a lesson to Gurbinder Singh or Harbans Singh they would have picked up some weapon from their house.

The learned counsel for the accused further argued that according to the prosecution, Dharam Singh and Karam Singh were empty handed while Daljit Singh petitioner was armed with a kirpan Dalbir Singh and Kaka alias Kuldip Singh were said to be armed with one sota each. The learned counsel for the petitioners argued that the learned lower Appellate Court had acquitted Dalbir Singh and Kaku and thus there was no reason to distinguish the case of the present petitioners from those of the acquitted accused. I am of the opinion that this argument has also force. The learned lower Appellate Court has acquitted Dalbir Singh and Kaku on the ground that all the family members have been implicated in the same case and most probably the injuries attributed to these acquitted accused were caused while Harbans SIngh grappled with Dharam SIngh & Karam SIngh. It is surprising to note that if the grappling part of the story was correct then Daljit Singh would have used his Kirpan more than once. Surprisingly, enough he is said to have given only one blow with his kirpan to Harbans Singh.

The prosecution story about the incised injury had been caused with kirpan does not find support from the statement of P.W. 6 Dr. Narinder Kumar Aggarwal who examined Harbans Singh injured. The dimensions of the incised wound have been given by this witnesses as 5 cms x 1 cm x muscle deep in the centre on the upper side back of upper left shoulder. The doctor has stated that he could not say definitely that with which weapon that injury was caused but it must be sharpedged weapon with a smaller blade, of the length of 5 to 6 cms. He has also stated that the possibility could not be ruled out of that injury having been caused if the victim had fallen on his back and struck against a sharpedged material. Thus the medical evidence does not lend assurance to the prosecution story.

Lastly the prosecution has not given any explanation about the injury found on the persons of Dharam Singh and Karam Singh. These injuries have been already been narrated above. These two injured petitioners were examined by P.W. 6 Dr. Narinder Kumar Aggarwal a little time after the examination of Harbans Singh was over. Though the injuries found on the persons of those injured were simple in nature but it is to be noted that injury No. 1 on the person of each of those injured was a contusion with an abrasion on the top of the contusion. Dharam SIngh had received that contusion on the top of head on the right side just near the mid line of the head while Karam Singh had received it on the front part of the head. Though sometimes the accused suffers injury to create the plea of selfdefence but I am doubtful if an accused will suffer injury on his head just to create the plea of right of selfdefence. Both Dharam Singh and Karam Singh have taken up a specific plea about the occurrence. The accused is not bound to prove his plea beyond reasonable doubt. He is entitled to say that the occurrence could have taken place in the manner narrated by him.

For the foregoing reasons, I am of the opinion that in the present case the statements of P.W. 1 Harbans SIngh and P.W. 2 Jaspal SIngh cannot be safely relied upon. Accordingly, I accept the present revision petition and set aside the convictions and sentences of the petitioners and acquit them of the charges framed against them after giving them benefit of doubt. The fine, if paid, be refunded to them.