Harish Chander vs State of Punjab

R.L. Anand, J. (Oral)

By this judgment I dispose of two Criminal Appeals Nos. 747SB of 1986 titled Prem Nath v. State of Punjab and 746SB of 1986 Harish Chander v. State of Punjab as both the appeals have arisen from the judgment dated 12th November, 1986 passed by the Court of Additional Sessions Judge, Ludhiana, who convicted appellant Prem Nath under Section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 3,000/. In default of payment of fine, this appellant was ordered to undergo further rigorous imprisonment for a period of six months. Prem Nath was further convicted under Section 324 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/. In default of payment of fine he was ordered to undergo rigorous imprisonment for a further period of two months. Shri Harish Chander appellant was convicted under Section 307 with the aid of Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a further period of three months. Harish Chander was further convicted under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/. In default of payment of fine he was ordered to undergo rigorous imprisonment for a further period of two months. The substantive sentences awarded to the appellants were ordered to run concurrently.

Brief facts of the case can be noticed in the following manner :

On 6th September, 1985 at about 9 p.m. Surjit Singh injuredcomplainant (P.W. 4) along with Bhagwan Dass (P.W. 5) and Jaswant Singh was going in a jeep to see Satnam Singh, who was residing on the Benjamin Road, Ludhiana. The jeep was driven by Bhagwan Dass P.W. Surjit Singh complainant was sitting by the side of Shri Bhagwan Dass on the front seat while Jaswant Singh was sitting on the back seat of the jeep. When they covered a distance of about 30/40 Karams from C.M.C. Chowk on the road towards Police Station Division No. 3, both the appellants were found standing in the middle of the road and they gave signal to the driver to stop the vehicle. Resultantly, the vehicle was stopped. Immediately thereafter Prem Nath appellant opened the attack and he gave a knife blow in the abdomen of Shri Bhagwan Dass (P.W. 5). Thereafter Shri Surjit Singh (P.W.4) got down from the jeep but he was also given a knife blow on the back of his left buttock by Harish Chander appellant. Both the accused raised Lalkara that they had taught a lesson to Bhagwan Dass and Surjit Singh for not paying the money. The injured raised alarm. Shri Jaswant Singh P.W. also got down from the jeep. In the meanwhile both the accused ran away from the place of occurrence with their respective weapons. According to the prosecution, the occurrence was witnessed by Shri Bhagwan Dass. The injured were taken to C.M.C. Hospital in a rickshaw. On the way Tilak Raj, brother of Bhagwan Dass, met them and he got them admitted in the hospital.

Regarding motive part of the prosecution case, it is the story of the prosecution that Shri Mohan Lal, husband of wife''s sister of Prem Nath accused, who had been in the service of the complainant for about four years, had a dispute with the complainant regarding the payment of some money. Prem Nath accused had visited the office of the complainant along with Shri Mohan Lal to support his claim and there was also an altercation between them, a few days prior to the present occurrence. Prem Nath accused had taken revenge upon the complainant and his partner Shri Bhagwan Dass due to his previous grudge by giving them injuries.

Intimation about the admission of the two injured in the C.M.C. & Hospital, Ludhiana, was sent by Dr. Arvindpal Singh Gambhir to the S.H.O., Police Station Division No. 3, Ludhiana, vide letters (Exhibits PW1/A and PW1/B). On receipt of the information Head Constable Jagir Singh of Police Station Division No. 3 reached the hospital at about 7.30 a.m. on 7th September, 1985 and recorded the statement (Ex.PW4/A) of injured Surjit Singh at 10.10 a.m. Shri Bhagwan Dass injured was not declared fit to make a statement at that time. On the basis of the statement (Ex.PW4/A) formal F.I.R. (Ex.PW7/F) under Section 324 read with Section 34 of the Indian Penal Code was recorded at Police Station Division No. 3, Ludhiana, on 7th September, 1985 at 10.45 a.m. The investigation was taken up by A.S.I. Tale Ram, who visited the place of occurrence on 7th September, 1985 and took into possession blood stained earth vide recovery memo. (Ex.PW6/A) in the presence of Shri Jaswant Singh and Head Constable Jagir Singh. The Investigating Officer also prepared the rough site plan of the place of occurrence. The statement of Shri Bhagwan Dass injured was recorded on 8th September, 1985 after he was declared fit to make a statement.

Both the injured were medically examined and on the person of Shri Bhagwan Dass P.W. one incised wound of the size of 2 cm x .5 cm on the right lower quadrant of the abdomen with omentum protruding out of the wound was found. This wound was going deep in the abdomen and caused multiple perforations of the small intestines and injury to the mesentry (found during laperotomy). This injury was declared dangerous to life by Dr. Santosh Mathew (P.W.12) vide his opinion (Ex.PW8/D). On the person of Shri Surjit Singh injured one incised wound measuring 2 cm x .5 cm. x 1 cm on the left gluteal region near the midline was found. This injury was declared simple in nature.

On 12th September, 1985 Dr. Santosh Mathew on the application (Ex.PW9/3) moved by Shri Tale Ram, A.S.I., made the endorsement (Ex.PW12/A) to the effect that if medical treatment in the form of operation was not given in time to Bhagwan Dass injured, the injury could have led to his death. It was further opined by the doctor that injuries on both the injured could be caused by a sharpedged weapon like knife.

Both the accused were arrested and after completing other formalities of the investigation, both the accused were challaned in the Court of the Illaqa Magistrate, who supplied copies of the documents to the accused and vide commitment order dated 16th January, 1986 committed the accused to the Court of Session in order to face trial. Vide order dated 3rd February, 1986, learned Additional Sessions Judge, Ludhiana framed charge under Section 307, Indian Penal Code against Shri Prem Nath and charge under Section 307 read with Section 34 of the Indian Penal Code was framed against Shri Harish Chander accused by the learned trial Judge. Harish Chander accused was further charged under Section 324 of the Indian Penal Code, while his coaccused Shri Prem Nath was charged under the said section with the aid of Section 34 of the Indian Penal Code by the learned Additional Sessions Judge. The charges were read over and explained to the accused, to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined 12 witnesses, including Shri Surjit Singh (P.W.4), Shri Bhagwan Dass (P.W.5) and Shri Jaswant Singh (P.W.6), besides the doctor who medically examined both the injured and performed surgical operations.

On the closure of the prosecution evidence, the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, and all the incriminating circumstances appearing in the prosecution case were put to them, who denied the same. Prem Nath accused stated as follows :

"I am innocent. My brotherinlaw Mohan Lal was a witness to an agreement between Bhagwan Dass and his sister Sumitra Devi. Bhagwan Dass wanted that Mohan Lal should depose in his favour and against Sumitra Devi in the Court. In this regard a few days earlier to the occurrence he had obtained Dasti summons from the Court for effecting service on him, but Mohan Lal was not ready to do so. Bhagwan Dass came to my house in search of Mohan Lal and asked me to accompany him to search Mohan Lal. I came in the street alongwith Bhagwan Dass and saw that a truck was lying parked nearby and that his two companions were present there. He wanted me to board the truck, but I refused to do so. Thereupon a quarrel started and there was exchange of Soda water bottles between Bhagwan Dass and his friends on one side and the people who had gathered there on the other. I rushed to my house. The police came there after halfanhour and then took me to the police station."

Harish Chander accused took up the defence that he was residing at Samrala Road. Satnam Singh Batra was a friend of Surjit Singh P.W. He had enmity with Surjit Singh, brotherinlaw of Satnam Singh because they were partners in the liquor vend. As such there was a dispute between Surjit Singh (Jeeta) and him (Harish Chander) regarding the affairs of the liquor vend. Satnam Singh Batra and his relative Jeeta in league with Surjit Singh P.W. had implicated him in the present case falsely due to the reason aforesaid. In defence the accused examined D.W.1 Om Parkash, an employee in the Court of Shri J.S. Mander, Sub Judge Ist Class, Ludhiana, and D.W.2 Shri Chuni Lal.

The trial Court believed the prosecution story and rejected the defence version and convicted and sentenced the appellants in the manner stated above.

Aggrieved by their conviction and sentence, both the accused filed the aforementioned two appeals, which I am disposing of with the assistance rendered by Shri M.R. Midha, Advocate, appearing on behalf of Harish Chander appellant, Shri S.S Narula, Advocate, appearing on behalf of Prem Nath appellant; and Shri B.S. Sewak, Assistant Advocate General, Punjab, appearing on behalf of the State, and with their assistance have gone through the record of the case.

Though an effort was made by the learned counsel appearing on behalf of the appellants to convince this Court that the occurrence had not taken place in the manner as deposed by the prosecution and chances cannot be ruled out that both the appellants might have been implicated on suspicion, but in view of the statements of the two injured, namely, Shri Surjit Singh and Shri Bhagwan Dass, whose statements are corroborated by medical evidence, I am not in a position to hold that the occurrence had taken place in a different manner or that both Surjit Singh and Bhagwan Dass were not in a position to identify their assailants. Effort was also made to establish that since there was no motive to participate in the assault by Shri Harish Chander appellant, but in view of the direct evidence of Shri Surjit Singh, Shri Bhagwan Dass, which is corroborated by the statement of Shri Jaswant Singh (P.W.6), I cannot doubt that Shri Harish Chander did participate in the occurrence along with his coaccused Shri Prem Nath. The occurrence had taken place at about 9 p.m. in the heart of the city of Ludhiana, and, according to the prosecution, the weapons used by the appellants were knives. Knife is a weapon which can be used when the assailant is hardly at a distance of two to three feet from the victim, leaving no difficulty for the victim to identify his actual assailant. Both the stamped witnesses have corroborated the story of the prosecution regarding the participation of both the accused in the occurrence. Their statements have further been corroborated by medical evidence and according to the opinion of the doctor the injuries on Shri Surjit Singh and Shri Bhagwan Dass could be caused with a sharpedged weapon like knife. In these circumstances I repel the first argument which was raised by the learned counsel for the appellants.

Learned counsel appearing on behalf of Shri Harish Chander appellant submitted that if the story of the prosecution is taken on its face value, still the conviction of Shri Harish Chander appellant under Section 307 read with Section 34 of the Indian Penal Code was not justified because the element of sharing of common intention is missing so far this appellant is concerned. In support of his argument Shri M.R. Midha, learned counsel for the appellant, submitted that as per the allegations of the prosecution when the jeep was allegedly stopped by the accused, Shri Prem Nath appellant opened the attack and gave the injury in the abdomen of Shri Bhagwan Dass. There is no Lalkara before the start of the occurrence from which it could be inferred that Shri Harish Chander shared the common intention with his coaccused Shri Prem Nath.

On the contrary Shri B.S. Sewak, Assistant Advocate General, appearing on behalf of the State, has tried to convince this Court that there was strong motive on the part of Shri Harish Chander to join hands with his coaccused Shri Prem Nath and for that reason the common intention can be inferred qua Harish Chander appellant also.

I am not in a position to subscribe to the argument raised by the learned counsel appearing on behalf of the State. The story of the prosecution goes that the appellants met the injured per chance. They were standing on the road when the injured came in a jeep along with Shri Jaswant Singh. The jeep was stopped and immediately thereafter Prem Nath opened the attack and gave knife injury in the abdomen of Shri Bhagwan Dass. At no point of time it can be said that Shri Harish Chander ever shared the common intention with his coaccused Prem Nath. In these circumstances, the learned trial Court committed illegality in convicting Harish Chander under Section 307 read with Section 34 of the Indian Penal Code, though he is individually liable for the injury which he caused to Shri Surjit Singh. In this view of the matter, I acquit Harish Chander of the charge under Section 307 read with Section 34 of the Indian Penal Code. However, his conviction under Section 324 of the Indian Penal Code is hereby maintained.

Learned counsel Shri S.S. Narula, Advocate, appearing on behalf of Shri Prem Nath submitted that the occurrence has taken place in the year 1986. At that time the age of Shri Prem Nath was about 30 years. Shri Prem Nath must be grown up by now and it will be big hardship to his family, if his sentence is not reduced. Moreover, Shri Prem Nath is suffering the agony of criminal proceedings for the last 13 years.

The injury dangerous to life has been attributed to Shri Prem Nath. Perusal of the medical report of injured Shri Bhagwan Dass indicates that small intestines came out due to abdominal injury. Luckily Shri Bhagwan Dass has survived. In the opinion of this Court, the ends of justice would suffice if the sentence awarded to Prem Nath appellant under Section 307, Indian Penal Code, is reduced to three years from four years and I order accordingly. He will, however, pay fine of Rs. 3,000/, as ordered by the trial Court. In default of payment of fine, he shall undergo rigorous imprisonment for a period of six months. The conviction and sentence awarded to Prem Nath appellant under Section 324 read with Section 34 of the Indian Penal Code cannot be sustained in the eyes of law with the breaking of the charge under Section 307 read with Section 34 of the Indian Penal Code qua Harish Chander. Prem Nath appellant stands acquitted of the charge under Section 324 read with Section 34 of the Indian Penal Code. Net result is that the appeal filed by Prem Nath is partly allowed. The conviction of Prem Nath appellant under Section 307 of the Indian Penal Code is maintained and he is directed to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 3,000/. In default of payment of fine, Prem Nath appellant shall undergo further rigorous imprisonment for a period of six months.

Shri M.R. Midha, learned counsel appearing on behalf of Harish Chander, submits that his client may be visited with the benefit of probation.

Keeping in view the nature of injury attributed to Harish Chander appellant, specially in view of the fact that this appellant is facing the agony of the criminal proceedings for the last more than 12 years, I am inclined to extend the benefit of probation to Harish Chander. His conviction under Section 324 of the Indian Penal Code is maintained and he is directed to execute a bail bond in the sum of Rs. 5,000/ with one surety in the like amount for a period of two years, undertaking that he shall not commit any offence during the period of probation and shall keep the peace and be of good behaviour during this period. If this appellant commits the breach of any term of the bond, he shall receive the sentence as and when called upon by the Chief Judicial Magistrate concerned. Harish Chander appellant shall execute the necessary bail bond/surety bond within one month.

With the above modification in the matter of sentence awarded to Harish Chander, his appeal also stands disposed of.