Gulab Singh and ors. vs State of Punjab

Ujagar Singh, J.—The trial Court has not accepted the case of the prosecution and still believing one part of the defence and ignoring the other convicted the appellants under sections 325, 325/149 for causing injuries on the person of Sahib Singh and U/Ss. 323 and 323/149, Indian Penal Code, for causing simple injuries on the person of Surjan Singh and similarly under Sections 323 and 323/149, Indian Penal Code, for causing uries injuries the head of Sunder Singh. However, it looks that the trial Court feeling no ground to support its finding of conviction released all the five appellants on probation. When this appeal came up for motion hearing, Punchhi J. issued notice of enhancement, and this appeal and the notice are being disposed of by this judgment.

Sahib Singh complainant filed this complaint on 26th April, 1983 against present appellants and three others, namely Karnail Singh, Bagga Singh and Jarnail Singh for their trial under Sections 307, 325, 323 and 148, Indian Penal Code. The complainant in support of his case examined Dr. Balwant Singh P.W. 1, himself as P.W. 2, Smt. Jamna Kaur P.W. 3 and Wazir Singh P.W. 4. The remaining two were formal witnesses. The prosecution story was supported by P.W. 2. P.W. 3 and P.W. 4 and this version is that at about 6 P.M. on l7th March, 1983, Jagir Singh s/o Balwant Singh and his brothers Jarnail Singh and Makhan Singh s/o Gulab Singh by passed the house of the accused by a tractor raising lalkaras and shouting abuses directed at Wazir Singh s/o Gulab Singh. At about 730 P.M. Jarnail Singh and Makhan Singh Ss/o Balwant Singh armed with tokies, Karnail Singh, Bagga Singh. Gulab Singh and his sons Makhan Singh and Kashmira Singh, and Makhan Singh s/o Balwant Singh armed with dangs came to the house of Sahib Singh and others and shouted that they would teach them a lesson for spying upon them. Sahib Singh came out and pleaded with Gulab Singh to desist from making an attack. Wazir Singh and Surjan Singh also came out to make a similar request but Gulab Singh and others assaulted them. Jarnail Singh inflicted a toki blow on Surjan Singh''s head, Makhan Singh s/o Gulab Singh dealt a dang blow to Surjan Singh, Makhan Singh s/o Balwant Singh dealt a toki blow to Surjan Singh from the blunt side,. Bagga Singh dealt a dang blow to Sunder Singh causing injuries on the left hand. Karnail Singh dealt a dang blow to Wazir Singh hitting him on the face, foot and on the left hand. Kashmira Singh S/o Gulab Singh dealt a dang blow an Sahib Singh''s head. Jamna kaur W/o Balwant Singh also came out to plead with the accused appellants. Jagir Singh dealt two toki blows on her head from blunt side Kashmir Singh son or Balwant Singh and Gulab Singh raised lalkaras inciting the remaining accused to hit Sahib Singh and others. The women folk of Sahib Singh''s house went to the rooftop from where they and some of their servants pelted brickbits at the accused. Wazir Singh and Surjan Singh took two logs of wood and wielded them in selfdefence. The case was registered and after completion of the investigation, report under Section 173, Criminal Prooedure Code, was submitted and. a complaint was filed against the appellants and three others who were chargesheeted under offences mentioned above.

After the trial, the trial Court has found that the version of the prosecution that all the accused, that is the five appellants and their three coaccused (since acquitted) had come all of a sudden to attack them, cannot be accepted unless there was evidence of some immediate motive of a grave nature. Surprisingly, after disbelieving the prosecution version in toto, trial Court has evolved its own version and has accepted part of the defence version showing that Jagir Singh and Jarnail Singh were attacked by the prosecution side when Jagir Singh, Jarnail Singh and Makhan Singh S/o Gulab Sangh had by passed the house of Sahib Singh and others. Jagir Singh received fatal blows and Jarnail Singh was caused injuries. They both fell down and Makhan Singh their companions informed Gulab Singh of that incident The second part of the defence version has been disbelieved on the ground that after the death of Jagir Singh and causing injuries on the person of Jarnail Singh, there was no question of the accused appellants and two others to bring Jagir Singh and Jarnail Singh from near the house of Sahib Singh and rather after learning about attack on the two they had taken it into their heads to attack Sahib Singh and others. As a matter of fact the defence version, as contained in the written statement filed by Makhan Singh S/o Gulab Singh was that on their way back, angry over abuses and furious over the recent loss of Rs. 7000/suffered by them by recovery of liquor, Balwant Singh, Makhan Singh and four others armed with sticks except Sahib Singh obstructed their tractor, while the first two hit Jagir Singh on the head and Makhan Singh hit Jarnail Singh also on the head and both of them fell down from the tractor and he hastened on the tractor to inform others about the incident. His father Gulab Singh, brother Kashmira Singh and the other Kashmira Singh came on foot along with him to bring away Jarnail Singh and Jagir Singh. At that time Jagir Singh was lying unconscious with serious head injuries and Jarnail Singh had 10 injuries including one on the head, As Gulab Singh went towards Jarnail Singh and Kashmira Singh towards his brother Jagir Singh, Surjan Singh attacked Gulab Singh. Sunder Singh attacked Kashmira Singh and their companion Wazir Singh also attacked, his brother Kashmira Singh who, armed with stick, also gave one or two blows to each of them. Ishro and Jamna Kaur had gone to the roof of the house and threw brickbats from there. When Sahib Singh, Balwant Singh and Makhan Singh returned and the injured accused had been removed from there the injuries on the left thumb of one and little finger of the other were fabricated and a counterversion was concocted. Numerous other arguments have also been put forth in the written statement filed by Makhan Singh. A separate written statement was filed by Gulab Singh adopting almost the same version.

On the side of the prosecution, Sahib Singh had one laceratedwound, Wazir Singh had five injuries caused by blunt weapon, Jamna Kaur had two lacerated wounds, Sunder Singh also had two lacerated wounds, and Surjan Singh had seven injuries, lacerated wounds and abrasions. The total number : of injuries received on the persons of Sahib Singh, Wazir Singh, Jamna Kaur, Sunder Singh and Surjan Singh was seventeen whereas on the side of the accused appellants Gulab Singh had four injuries, Jarnail Singh had ten injuries Kashmira Singh S/o Balwant Singh had one injury and Kashmira Singh s/o Gulab Singh had 5 injuries besides Jagir Singh who died because of injuries caused. from the prosecution side. There were in all 20 injuries apart from death of Jagir Singh. Even, according to the story of the prosecution given in the complaint, which was filed by Sahib Singh on 26th April, 1983, the injuries on the side of the accused were not satisfactorily explained specially when allegation of injuries on their side attributed to Jagir Singh and Jarnail Singh had not been believed by the trial Court. in such a sitnation. the trial Court committed a mistake in partly believing the version of the accused appellants and partly disbelieving the same. As laid down in Bhagirath v. The State of Madhya Pradesh, 1976 Chandigarh Law Reporter (S.C.) 116,their Lordships of the Supreme Court while observing that when the trial Court recorded conviction by reconstituting a story different from that propounded, by the prosecution the appellant becomes entitled to acquittal, have held as under :

"It appears to us that the approach of the Courts below in reconstructing a story different from that propounded by the prosecution and then convicting the appellant on that basis, was clearly erroneous."

In this case, having disbelieved the prosecution version the trial Court erred to allow the prosecution to take advantage of the weakness of the defence. The prosecution is bound to prove the very story it allegs and the Court could not reconstruct its own story and then to record conviction specially when the trial Court has acquitted Karnail Singh, Bagga Singh and Jarnail Singh and found grievous injuries on the left thumb of Wazir Singh and left little finger of Sunder Singh having in all probability been self suffered. The story evolved by the trial Court in this case is neither supported by the prosecution nor given out by the defence. In such a situation, this appeal is allowed and the conviction of the appellants is set aside and they are acquitted of the charges framed against them. Bail bonds and surety bonds in consequence of the Probation JUDGMENT are discharged. Notice issued by this Court for enhancement of sentence is discharged.