Harbhajan Singh vs State of Punjab

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 14.11.1996 passed by the Additional Sessions Judge, Jalandhar who convicted the appellant Harbhajan Singh under section 326 IPC and sentenced him to undergo rigorous imprisonment for one and half years and to pay a fine of Rs. 500/. In default of payment of fine, he was further directed to undergo rigorous imprisonment for six months.

It may be mentioned here that alongwith Harbhajan Singh son of Punjab Singh two others namely Surinder Singh and Sarwan Singh were also tried but they were acquitted by the trial Court by giving benefit of doubt.

The brief facts of the case are Sarvshri Harbhajan Singh present appellant alongwith Surinder Singh and Sarwan Singh were tried for the offence under Section 307 read with Section 34 IPC on the allegations that on 8.4.1985 at about 5.00 p.m. in the area of village Jandhu Sangha they allegedly caused injuries to Karam Singh PW.

Karam Singh (PW.2) stated before the trial Court that Harbhajan Singh son of Punjab Singh, present appellant had litigation with Sagar Singh regarding lane. Appellant Harbhajan Singh is his collateral and he suspected that Karam Singh injured PW was helping Sagar Singh in the litigation. On the day of the occurrence i.e. on 5 p.m. Surinder Singh (since acquitted) armed with kirpan, Harbhajan Singh present appellant armed with kirpan and Sarwan Singh (since acquitted) armed with dang came from the eastern side. The appellant raised lakkara that Karam Singh should be killed upon which Surinder Singh gave a kirpan blow on the head of Karam Singh. Sarwan Singh gave a dang blow on the back of left shoulder of Karam Singh while Surinder Singh gave another kirpan blow on the forehead. Karam Singh PW fell down on the ground. The occurrence was witnessed by Harbhajan Singh son of Gurmail Singh a relation of Karam Singh injured. The injured was removed to the hospital Adampur where he was medically examined by Dr. Nidhan Singh (PW.1). He found the following injuries on person of Shri Karam Singh.

4 cm x cm incised wound on the forehead, 6 cm above the left eye brow.

2.5 cm x cm incised wound to the middle forehead.

The Doctor declared both the injuries caused by sharpedged weapon within a probable duration of 12 hours. Both the injuries were kept under observation for Xray examination. Ex.PA is the correct carbon copy of the M.L.R. and Ex.PA/1 is the pictorial diagram showing the seat of injuries. On 20.4.1985, the Doctor declared injury No. 1 as dangerous to life. Injury No. 2 was declared simple in nature. Both these injuries were caused by sharpedged weapon. The Doctor declared Karam Singh unfit to make statement on police application Ex.PC on 8.4.1985. However, he was declared fit to make statement vide Ex.PD/1 on 9.4.1985.

A.S.I. Dharam Pal went to hospital and recorded statement Ex.PE of Karam Singh on the basis of which formal FIR Ex.PE/2 was recorded. He went to the spot and prepared rough site plan Ex.PF. Doctor Kulvinder Singh (PW.5) found fracture of frontal parietal bone of Karam Singh. Ex.PG is the Xray report and Ex.PG/1 is the skiagram.

In order to prove the charge, prosecution examined Doctor Nidhan Singh (PW.1), Karam Singh injured as PW.2, Harbhajan Singh (PW.3), ASI Dharam Pal (PW.4), Doctor Kulvinder Saini (PW.5) and Dalip Singh, Draftsman (PW.6).

The statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them and they denied all those circumstances and plea of the appellant was that of defence. They had acted in the exercise of right of self defence. In defence the accused examined Dr. Iqbal Singh as DW.1 who medically examined Harbhajan Singh on 8.4.1985 and found following three injuries on his person :

Incised wound 8 cm x 3 cm across the upper part of the left hand. Underlying muscle, vessels, tendon bones and other structure were cut.

Incised wound 4 cm x 0.5 cm on the posterior and proximal part of the right index finger. Advised Orthopaedic opinion.

Lacerated wound 3 cm x 0.5 cm on the left parietal region of head and profuse swelling was present. advised Xray.

This Doctor declared injury No. 1 grievous in nature while injury No. 2 was kept under observation for orthopaedic opinion and injury No. 3 was kept under observation for Xray. Injuries No. 1 and 2 were caused by sharp edged weapon while injury No. 3 was caused by blunt weapon. He proved the Medical Legal Report Ex.DB of Harbhajan Singh appellant.

Doctor Vijay Pal Singh (DW.2) appeared as DW.2 and noticed a transverse stitched wound in the palm of the right hand running from lateral to medial order of Harbhajan Singh. The wound was in the area of 2" x 2" corresponding to the ring and middle fingers.

The learned trial Court relied the story of the prosecution in part by stating that it was a case of free fight. Both the parties had strong motive to commit offence and with determined mind they came inside the lane and caused injuries to each other. Resultantly the appellant was found to be guilty for the offence under Section 326 I.P.C. and was sentenced in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.

I have gone through the grounds of appeal of Shri Harbhajan Singh in the absence of his counsel. The main thrust of the grounds of appeal of the appellant is that the complainant party acted as an aggressor and the injuries have been caused in the right of private defence. On the contrary, the view of this court is that both the parties had earlier strong motive in order to settle their score they came prepared and caused injuries upon each other. In para 18 of the impugned judgment the learned trial Court has stated as follows :

"The learned counsel has referred to Bachan Singh and others v. The State, 1969 P.L.R. 393, wherein free fight has been described. In this case the parties have exaggerated the facts. Nevertheless the place of occurrence is in the street. Because of civil litigation going on between the parties they were feeling aggrieved and they had come prepared for the fight. I do not subscribe to the arguments of the learned counsel that it was only a sudden fight. The law laid down in Gian Singh & others v. State, 1972 P.L.R. 972 is that if two parties clashed the court is to determine as to which of the parties acted as an aggressor. If it cannot be determined then both the parties are to be acquitted. The present case is not a case of sudden fight as the parties were illdisposed to each other. Their relations were strained. Panchayat had also intervened in the matter. Harbhajan Singh PW had got stay order from the court. The important aspect of the case is that the occurrence did not take place in the disputed site which Sagar Singh PW claims to be of his own. On the other hand free fight took place in the main street running in front of the house of the parties. The ingredients of freefight are to be judged from the various circumstances. The main point to be kept in view is that the parties had come prepared to fight as they were carrying deadly weapons with them. They had come in the open in the lane with the intention to fight each other. The trouble had not sparked off all of a sudden. Both the parties could under (understand ?) the significance of their coming armed in open and clashing with the opposite party. Thus I hold that it is a case of free fight."

The findings of the trial Court are correct and fully borne out from the record. Thus I maintain the conviction of the appellant Harbhajan Singh for the offence under section 326 I.P.C. but keeping in view the circumstances that the occurrence had taken place in the year 1985, I reduce the substantive sentence of the appellant from one and half years to one year. With the above modification in the sentence the appeal stands dismissed. Let intimation be sent to the Chief Judicial Magistrate, Jalandhar who shall take effort for the issuance of the warrants of arrest of Harbhajan Singh son of Punjab Singh resident of village Jandu Singha Tehsil and District Jalandhar so that this appellant may be able to serve the remaining part of his sentence.