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Judgment
Kuldip Singh, J.—By this single judgment, I will dispose of CRA No. S-499-SB of 2004, filed by accused/appellants Lal Chand alias Chandi and Shyam alias Ghansham against judgment and order dated 14.2.2004, passed by the learned Additional Sessions Judge, Gurgaon, vide which the appellants were sentenced to undergo rigorous imprisonment for one year under Sections 324/34 IPC. They were further sentenced to undergo rigorous imprisonment for three years and fine of Rs. 5,000/- each, in default thereof, to undergo rigorous imprisonment for six months each under Sections 307/34 IPC. Both the sentences were directed to run concurrently. The entire amount of fine, if recovered, was to be paid to the injured Bishan Dass u/s 357 Cr.P.C. However, the third accused Tony alias Sanjay was acquitted by the trial Court.
This order will also dispose of CRR No. 1423 of 2004, filed by Jagmal Singh and Bishan Dass (injured), praying for enhancement of sentence and enhance of compensation awarded to the injured.
ASI Bhoop Singh recorded the statement of Jagmal Singh (Ex. PA) on 3.4.1999, in which Jagmal Singh (complainant) stated that on 1.4.1999, at about 8:00 PM, he alongwith his nephew Bishan Dass had gone to the vegetable market at Farukh Nagar for sale of cucumber and round gourd (Kheera and Tinda respectively) on the commission agent shop of Garib Dass. After the sale of the vegetables, the Paledars were weighing the vegetables. In the meanwhile, accused Lal Chand alias Chandi, who is the real brother of Jagmal Singh (complainant) accompanied by Shyam, who is son of his (Lal Chand''s) brother-in-law came there. It is stated that on 1.4.1999 morning, there was some altercation between the ladies. The matter was later on compromised. Lal Chand alias Chandi in the fit of anger caught hold of Bishan Dass by his neck and gave him slaps and fist blows. When Jagmal Singh intervened to rescue Bishan Dass, Shyam (accused) picked up a bottle and after breaking it, gave a blow of the same on the neck of Jagmal. Shyam also gave a blow of the broken bottle on the left side of waist of Bishan Dass and another blow on the left arm of Bishan Dass. In the meanwhile, Lal Chand kept holding Bishan Dass. Garib Dass, Commission Agent and Vir Singh son of Garib Dass intervened and rescued the injured and witnessed the occurrence. After the said occurrence, Tony son of Rohtash took Lal Chand alias Chandi and Shyam on the motorcycle. After getting first aid, Jagmal Singh came back to his home.
According to the police proceedings, on 2.4.1999 night, a VT message was received regarding admission of injured Jagmal and Bishan Dass in Safdarjang Hospital, Delhi. When the police party reached Safdarjang Hospital and obtained the opinion of the doctor, Bishan Dass was declared ''not able to speak properly''. Jagmal was found not admitted in the hospital. Thereafter, ASI Bhoop Singh obtained the MLRs of Bishan Dass and Jagmal Singh (injured). From the MLRs, offence u/s 323/324 read with Section 34 IPC was made out. Accordingly, FIR No. 51 dated 3.4.1999 under Sections 323/324/34 IPC was registered at P.S. Farukh Nagar, Gurgaon (Ex. PA/2). Police visited the spot and prepared the rough site plan (Ex. PD).
During the course of investigation, accused Lal Chand alias Chandi was arrested on 3.5.1999, whereas accused Shyam alias Ghansham was arrested on 14.5.1999.
During the course of investigation, DSP Manjit Singh (DW4) conducted the inquiry and found that accused Tony @ Sanjay is innocent. However, as the injury caused to Bishan Dass was found dangerous to life, therefore, offence u/s 307 IPC was added.
After completion of the investigation, the challan was presented in the Court against the present appellants.
The accused/appellants were chargesheeted under Sections 307 read with 34 IPC and Sections 324 read with 34 IPC, to which they pleaded not guilty and claimed trial. Later on, accused Tony @ Sanjay son of Rohtash was also summoned u/s 319 Cr.P.C.
In support of its case, the prosecution examined Bishan Dass-injured (PW1), Jagmal Singh-complainant/injured (PW2), Dharampal, Draftsman (PW3), HC Om Parkash (PW4), ASI Bhoop Singh (PW5), SI Ramesh Kumar (PW6), B.R. Batra, Medical Record Technician, Safdarjang Hospital, Delhi (PW7) and closed the evidence.
When examined u/s 313 Cr.P.C., accused pleaded that they are innocent and have been falsely implicated.
In defence, accused examined Ganesh Chand Saini, Male Nurse-IInd, PHC Singhana, District Jhunjnu, Rajasthan (DW1), Ajit Singh, Shopkeeper in vegetable market at Farukh Nagar (DW2), Dr. Shish Ram Gotwal (DW3), Manjit Singh DSP (Retd.) (DW4) and closed the defence evidence.
After hearing learned Public Prosecutor for the State, learned defence counsel and going through the evidence, the present appellants were convicted and sentenced as aforesaid, whereas accused Tony @ Sanjay was acquitted.
I have heard learned counsel for the accused/appellants, learned Deputy Advocate General for the State and have also carefully gone through the file.
In this case, none of the doctors i.e. Dr. Vijay Kumar, Dr. Munish Sinha, Dr. R. Sahai, Dr. Nand Sirari, Radiologist were examined as they are stated to have left Safdarjang Hospital and their addresses were not available. The trial Court has recorded that repeatedly summons were sent to Dr. Vijay Kumar and Dr. Munish Sinha of Safdarjang Hospital, New Delhi and every time, the summons were received back with the report that they have already left the hospital and settled somewhere else and their addresses are not available. Then, prosecution moved an application dated 28.5.2001 for permission to produce the Record-keeper Safdarjang Hospital, New Delhi, to prove the MLRs, issued by Dr. Vijay Kumar and Dr. Munish Sinha, who had treated the injured witnesses in this case. The application was allowed on 22.9.2001 and accordingly, Shri D.R. Batra, Clerk (PW7) was examined to prove the MLRs and injury reports. The said order was never challenged by the accused. Therefore, MLRs and the case history have been proved by secondary evidence, in accordance with law. Now, when the MLR (Ex. PF) is examined, it goes to show that when Bishan Dass (injured) was examined on 1.4.1999, at about 11:15 PM, in Safdarjang Hospital, New Delhi, following injuries were found on his person:-
"L/E 4x2x2 cm penetrating wound with sharp object lt. lumber region.
3x3x3 cm incised wound with sharp weapon left forearm left side.
Abrasion on stomach
Injury on left lower chest Diaphragmatic and splenic injury.
Similarly, following injury was found on the person of Jagmal Singh, vide MLC (Ex. PG):-
"L/E incised wound lacerated 3x1" 2x2 cm behind right ear."
The case history (Ex. PF/1) shows that there was injury left lower chest on diaphragmatic and spelanic injury. There was rent in (L) dome of diaphragmatic 10 cm bleeding from edge. Rent in anterior margin of the spleen deep, actively bleeding. Contusion with lesser omentum 10x8 cm. No active bleeding into pleural cavity. It shows that spleen of Bishan Dass was injured. In this case, the doctor was not examined to determine as to whether the injury was dangerous to life or not ? However, the trial Court has referred to Modi''s Medical Jurisprudence and Toxicology (Twenty-first Edition), pages 238 and 275, to take view that the injury to the spleen was dangerous to life.
I agree with the view taken by the trial Court. It is not the law that injury is to be treated as dangerous to life only on the opinion of the doctor. The Court can itself examine the nature of injury to determine whether it is dangerous to life or not. In the present case, there was injury to the spleen, which could prove fatal. The life of Bishan Dass could be saved only because he was immediately rushed to a Safdarjang Hospital, New Delhi, where expert treatment was available. Hence, I am of the view that injury on the person of Bishan Dass was dangerous to life and is covered u/s 307 IPC.
The learned counsel for the accused/appellants has vehemently argued that injury on the person of Bishan Singh is not dangerous to life, therefore, it is to be treated as simple and is covered u/s 324 IPC. The matter has already been discussed above and it has been found that injury to the spleen proved fatal and, therefore, it was rightly held to be dangerous to life. The fact of non examining of doctors and proving the MLRs by secondary evidence has also been discussed above. Word ''dangerous'' on MLR appears to have written by doctor himself in routine as he has also recorded date of admission and discharge on MLR later on using MLR as case history.
Now, coming to the oral evidence of the occurrence, it comes out that both the injured, namely, Bishan Dass (PW1) and Jagmal Singh (PW2) have supported prosecution case though, with certain improvements regarding the role of Tony (Tunni), who has since been acquitted. Bishan Dass, while appearing as PW1, stated that when he alongwith his uncle Jagmal Singh reached the vegetable market at about 7:45/8:00 PM, all of a sudden Chandu Lal @ Lal Chand came from the behind. He was accompanied by Sham Lal and Tony (Tunni) @ Sanjay. Chandu caught hold of him from his neck and exhorted that ''he poses himself to be a Panch'' and slapped him. He also gave two fist blows on his abdomen. When his uncle Jagmal intervened, Sham Lal broke a bottle and assaulted him on his neck with the said bottle. Thereafter, Lal Chand and Tony (Tunni) caught hold of him from the neck from behind and Sham Lal gave a blow of said broken bottle on the left side of his chest. When Sham Lal wanted to give second blow, he was able to free his left hand and the second blow hit his left hand. Thereafter, he became unconscious at the spot. Similarly, Jagmal (PW2), while stating about his visit to the vegetable market, stated that Chandu alias Lal Chand, who is his real brother, accompanied by Sham Lal, who is son of brother-in-law of his brother (Lal Chand), came there. Lal Chand caught hold of Bishan Dass and gave fist blows on his abdomen and when he (Jagmal) tried to rescue Bishan Dass, Sham Lal gave a blow of broken bottle on his neck on the left side. Thereafter, Sham Lal gave a blow with the broken bottle on the left side on the axillary region of Bishan Dass and also gave another blow of the broken bottle on the left arm of Bishan Dass. He also claimed that Tony/Tunni (accused) had caught hold of arm of Bishan Dass.
So far as improvements regarding accused Tony (Tunni) are concerned, these need not be discussed in the present appeal since Tony has been given the benefit of doubt and has been acquitted. It is clear that though, the witnesses have changed the wording of the occurrence, but the fact remains that both the witnesses are consistent that it was Lal Chand @ Chandi, who caught hold of Bishan Dass from his neck and gave him slap and fist blows and when Jagmal intervened, Shyam Lal (accused) picked up a bottle and after breaking it, gave a blow on the neck of Jagmal and thereafter gave blows on the left side waist of Bishan Dass and on his left arm. The injury on the chest injured the spleen and has been found dangerous to life, as discussed above.
The Investigating Officer ASI Bhoop Singh (PW5) proved the formalities of investigation. He has clarified that when he visited Safdarjang Hospital, New Delhi on 2.4.1999, Bishan Dass was declared unfit to make statement. He received MLRs of Bishan Dass and Jagmal from Police Post Safdarjang Hospital, New Delhi and then he went to the house of Jagmal, where his statement (Ex. PA) was recorded. In cross examination, he has clarified that he was only handed over the photocopies of MLRs and that word ''dangerous'' was not written on the MLR. The original MLRs were not with the police post. He has admitted during investigation, Tony (Tunni) was found to be innocent and, therefore, he was not challaned.
The learned counsel for the appellants has vehemently argued that in this case, occurrence took place on 1.4.1999 and the statement of Jagmal was recorded on 3.4.1999 i.e. after delay of two days. Therefore, an improved version has been put forth to involve the accused. It has been argued that Jagmal never approached the police. He (Jagmal) himself went to his home and did not promptly lodge the FIR.
First of all, it is to be noted that on account of delay and improvements regarding role attributed to Tony alias Sanjay, the benefit of the same has been given to him (Tony). Merely on account of delay, the prosecution case is not to be thrown out. However, a duty is caste upon the Court to scrutinize the prosecution evidence with greater care and caution. In this case, the parties are near relations. Jagmal (PW2) is the reals brother of Lal Chand alias Chandi (accused). It is admitted in cross examination that Sham Lal @ Ghansham (accused) is the son of brother-in-law of Lal Chand (accused). Therefore, there could be initial reluctance on the part of Jagmal (PW2) to lodge FIR against his real brother Lal Chand.
The cross examination of Bishan Dass and Jagmal Singh shows that there was a civil litigation between the complainant and accused party and the parties were not enjoying good relations. The occurrence took place around 8:00 PM in the vegetable market when complainant had gone to sell his vegetables on the commission agent shop. Therefore, from its face, the occurrence could not be fabricated or concocted. Though, there was only one injury on the person of Jagmal, but it was not dangerous to life. The injury given on the left side of the chest of Bishan Dass caused injury to the spleen and was dangerous to life. Such an injury cannot be self inflicted. It is apparent that Lal Chand and Sham Lal both came with intention to quarrel and cause injury to Jagmal Singh and Bishan Dass on account of civil dispute between the parties and altercation between the ladies, which took place on the same morning. Therefore, oral evidence corroborates the medical evidence on the material particulars, leaving aside the minor details. It is to be noted that both the appellants admit their presence at the spot and their involvement in the quarrel with both the injured. Though, in their statement u/s 313 Cr.P.C., no such plea was taken and it was merely claimed that they are innocent and have been falsely implicated, but it was suggested to Bishan Dass that on seeing Lal Chand alone in the market, a scuffle took place, which was started by him and in the grappling, he fell down and sustained the injuries. It was further suggested to Bishan Dass that he had caused injuries to the accused with fist blows. Similarly, it was suggested to Jagmal Singh that a quarrel took place between Lal Chand and Bishan Dass and he fell down on the ground and received injury. It was further suggested to him that Bishan Dass caused injury to Lal Chand by fist and kick blows.
Not only this, accused in order to prove their injuries, examined Ganesh Chand Saini, Male Nurse, PHC Singhana, District Jhunjnu, Rajasthan (DW1) and Dr. Shish Ram Gotwal (DW3). According to the statement of Dr. Shish Ram Gotwal (DW3), who was then posted at PHC Shingara, District Jhunjnu, Rajasthan, he had examined Ghansham son of Raja Ram on 5.4.1999 and found following four injuries:-
A bruise size 5x5 cm. on left knee joint medial side. Colour was blue green.
Bruise with scab/bruise size 5x5 cm and scab size 1x1 cm on the right knee joint.
Bruise blue green colour size 3x3 cm on left thigh.
Bruise blue green colour 5x5 cm. on right scapular region."
The injuries were caused with blunt weapon and duration was 3 to 7 days.
Dr. Shish Ram Gotwal (DW3) had also examined Chand Lal son of Hira Lal and following five injuries were found his person:-
"1. Bruise with absess of size 3x3 cm. at left elbow.
Bruise blue green colour size 10x10 cm. on right arm on the lateral side.
Bruise with scab blue green colour, scab was 1x1 cm size while bruise was the size of 3x3 cm. on the right parietal region of skull.
Bruise with black greenish colour of the size of 2x2 cm. at left great toe.
Bruise with blue green colour of the size 3x3 cm. at right shoulder."
The injuries were caused with blunt weapon and the probable duration was 3 to 7 days.
I am of the view that both the appellants have tried to put up a false defence. The occurrence took place in Farukh Nagar, Gurgaon. However, both the appellants went to a far away place in District Jhunjunu (Rajasthan) and found a small primary health centre in village Singhana and got them medico legally examined for the simple injuries. Such simple injuries could be easily fabricated. The conduct of the accused show that they found a convenient place and convenient doctor to get the MLRs. Therefore, the fact that accused/appellants claim to have received injuries, goes to show that they admit their involvement in the crime and that they tried to put up a defence that they had also received injuries in the same occurrence. In these circumstances, the plea of delay loses its significance.
The learned counsel for the appellants has further argued that in this case, there is no common intention. As per prosecution case, Lal Chand (brother of Jagmal) had caught hold of Bishan Dass by his neck and gave him slap and fist blows. When Jagmal intervened to rescue Bishan Dass, accused Shyam picked up a bottle and after breaking it, gave blows on the neck of Jagmal and on the person on Bishan Dass. Therefore, it is argued that there was no common intention on the part of Lal Chand in the injuries caused by Sham Lal.
I find no merit in the contention of the learned counsel for the appellants. Keeping in view the history of civil litigation between parties and the altercation between the ladies earlier in the day, it is clear that Lal Chand accompanied by son of his brother-in-law came all the way to vegetable market probably after satisfying that Jagmal (complainant) and Bishan Dass have gone there for sale of vegetables. It was there that Lal Chand had caught hold of Bishan Dass by his neck and gave him slaps and fist blows, meaning thereby that the intention of both the accused was to cause injury to Bishan Dass and Jagmal Singh. It was in the furtherance of common intention that one of the accused Sham Lal picked up a bottle and after breaking it, gave blows on the neck of Jagmal and on the left side of waist of Bishan Dass and on the left arm of Bishan Dass, while Lal Chand kept holding Bishan Dass. Therefore, both the accused are liable u/s 34 IPC for the offence u/s 307 IPC.
From the foregoing discussion, I come to the conclusion that the accused/appellants were rightly convicted under Sections 307 and 324 IPC read with Section 34 IPC.
Faced with theses circumstances, the learned counsel for the appellants has argued that the parties are near relations and, therefore, the sentence may be reduced to the period already undergone.
The request has been vehemently opposed by the learned counsel for the injured, who has pressed his revision petition and has argued that for the offence u/s 307 IPC, sentence of three years is inadequate and that the compensation awarded to the injured is also inadequate.
After considering the rival contentions of both the counsels, I am of the view that accused had not pre-planned the injury, which was found dangerous to life. The weapon of offence i.e. bottle was picked up from the spot. The trial Court has already taken into consideration all the facts and circumstances to fix the quantum of sentence. Therefore, I am of the view that the sentence of three years passed by the trial Court u/s 307/34 IPC is adequate sentence in the given circumstances. However, I am of the view that the compensation of 5,000/- each i.e. Rs. 10,000/- imposed upon the accused, to be paid to Bishan Dass, is inadequate. Bishan Dass had received injury, which endangered his life. He had to be removed to Safdarjang Hospital, New Delhi and it was on account of expert treatment that his life could be saved. Naturally, he might have spent lot of money on his treatment. In these circumstances, the fine of Rs. 5,000/- imposed upon both the accused u/s 307/34 IPC is enhanced to Rs. 20,000/- each and it is directed that the entire fine of Rs. 40,000/- on realisation, shall be paid to Bishan Dass as compensation.
As a result of foregoing discussion, CRA No. S-499-SB of 2004, filed by accused/appellants Lal Chand alias Chandi and Shyam alias Ghansham is dismissed and Crl. Revision No. 1423 of 2004 is partly allowed to the abovenoted extent. Accused/appellants Lal Chand @ Chandi and Shyam @ Ghansham be immediately arrested and committed to jail to undergo remaining part of sentence.