Jagrup Singh and ors. vs State of Punjab

B.S. Yadav, J.

Jagrup Singh, Mohinder Singh and Bahadur Singh petitioners (hereinafter referred to also as accused) have been convicted under section 148 of the Indian Penal Code. They have also been convicted under sections 323, 324 and 325 all read with section 149 of the Indian Penal Code. Bahadur Singh and Mohinder Singh have been further convicted under section 326 and Jagrup Singh under section 326 read with section 149 of the Indian Penal Code. They have been awarded various sentences of imprisonment under the above offences. They have also been ordered to pay various amounts of fine in respect of the offences except under section 323 read with section 149 of the Indian Penal Code. It has also been ordered that all the substantive sentences of imprisonment would run concurrently and out of the fine, if realized, Rs. 5000/ be paid to Chand Singh injured. It may be mentioned here that along with the above petitioners, Gurjant Singh and Kochi were also tried and convicted by the learned Judicial Magistrate Ist Class, Mansa. Kochi died while the appeal of all the convicted persons was pending in the Sessions Court. Gurjant Singh was acquitted in appeal.

The prosecution story in brief is that on 11th August, 1978 at about 1 P.M. P.W.3 Chand Singh was returning from his fields to his house. When he reached near the Pahi, Jagrup Singh, Mohinder Singh, Bahadur Singh, Gurjant Singh and Kochi emerged from the fields adjoining the pahi. Jagrup Singh, who was armed with a kassia raised a lalkara that Chand Singh be not spared and be killed. Mohinder Singh and Bahadur Singh were armed with one gandasa each while Kochi, a kassia and Gurjant Singh, a gandhala. All those 5 accused belaboured Chand Singh with their respective weapons. On the cries raised by the victim, P.W. 5 Darshan Singh, P.W. 4 Jit Singh and Gurtej Singh came to the spot. The accused ran away with their respective weapons. Those witnesses removed Chand Singh to his house. From there he was taken to Rural Dispensary, Bhikhi. There he was medically examined by P.W. 2 Dr. Om Parkash on the same day i.e. 11th August, 1978 at 4.50 P.M. The said doctor found 3 incised wounds, 7 lacerated wounds and 2 swellings on different parts of the body of the injured. Exhibit PB is the medical certificate prepared by the said doctor. He also sent ruqa Exhibit PB/2 to the Police Station, Bhikhi, intimating the arrival of the injured in the dispensary.

P.W. 6 A.S.I. Gurmit Singh, who in those days was posted in Police Station, Bhikhi, reached the Rural Dispensary. At 5.45 P.M., Dr. Om Parkash (P.W.2) declared the injured fit to make a statement. The said police officer recorded the statement of the injured and the same is Exhibit P.W.3/A. He sent it to Police Station Bhikhi, on and its basis formal First Information Report Exhibit P.W.6/A was recorded.

Chand Singh was radiologically examined by P.W. 1 Dr. G.K. Sood, on 14th August, 1978. He found the fracture of the second metacarpal bone at its distal end along with fractures of the terminal phalanx of right thumb and proximal phalanx of right index finger, fracture of the right tibia bone near the junction of its lower 1/3rd with upper 2/3rd, fractures of the radius and ulna bones in the upper 1/3rd and lower 1/3rd of the left forearm, fractures of the second, third and forth metacarpal bones at their distal ends along with the fractures of the proximal phalanxes of the left index, middle and little fingers and fracture of the tibia and fibula bones in their upper 1/3rd. After necessary investigation the above named 5 accused were chargesheeted.

At close of the prosecution evidence the accused were examined under section 313 of the Code of Criminal Procedure. Gurjant Singh accused pleaded alibi while the remaining accused false implication. In their defence the accused examined D.W. 1 Bant Singh, D.W. 2 Chand Singh and D.W. 3 Rup Singh, Record Keeper, Central Jail, Bhatinda. The former two witnesses have stated that on learning about the injuries of Chand Singh (P.W.3), they went to his house and injured told them that somebody had hit him from the back and he became unconscious and could not see his assailants. D.W. 3 Rup Singh has stated that Gurjant Singh had come to his father Karnail Singh in the Central Jail, on 11th August, 1978, and the interview timings were from 11 A.M. to 12.30 P.M. and from 3.30 P.M. to 5.30 P.M. He proved entries in the register, copy Exhibit DA.

The Judicial Magistrate Ist Class, Mansa, who tried the case, found all the 5 accused guilty and convicted all of them in the manner stated above.

All the 5 convicted accused filed appeal which was heard by Shri N.S. Bhatia, learned Additional Sessions Judge, Bhatinda. He believed the plea of alibi of Gurjant Singh and acquitted him of all the charges. As noticed earlier, Kochi had died during the pendency of the appeal. He did not find any merit in the appeal so far as the other accused were concerned and dismissed the same. The convicted accused i.e. petitioners have now come to this Court in revision.

The learned counsel for the accused tried to argue that in the present case the false implication of Jagrup Singh cannot be ruled out. He also relied upon defence evidence and argued that the implication of Mohinder Singh and Bahadur Singh accused is also doubtful. I am afraid the evidence cannot be reappraised at this stage. Both the learned Courts below have given a concurrent findings to the effect that the present petitioners had participated in the occurrence. The powers of this Court while exercising revisional jurisdictional are circumscribed by certain settled principles. In this respect I may quota State of Orissa v. Nakula Sahu and others, A.I.R. 1979 Supreme Court 663 wherein it was remarked :

"So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under S. 439 read with Sec. 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under S. 423 of Code, it is now well settled that normally the jurisdiction of the High Court under sec. 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose, (1973) 4 SCC 10 : (AIR 1973 SC 799) and Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 583 : (AIR 1973 SC 145). In the latter case viz. Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of S. 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceedings of such inferior court and in spite of the fact that under S. 439 of the Code it can exercise inter alia the power conferred on a court of appeal under S. 423 of the Code, the High Court is not expected to act under S. 435 or S. 349 as if it is hearing an appeal."

The learned counsel for the petitioner failed to point out any misreading of the evidence by the learned Courts below or any defect in the procedure. Therefore, evidence cannot be appreciated again at this stage.

The learned counsel for the petitioner also argued that Jagrup Singh cannot be said to be sharing the common intention with his coaccused as he was armed with a kassia but he used it with its blunt side. This argument has no force. All the petitioners along with Kochi (deceased) had attacked Chand Singh in furtherance of their common intention to assault him. Therefore, Jagrup Singh becomes vicariously liable for the acts of his coaccused. In the occurrence Jagrup Singh had used his kassia though from the blunt side.

The learned counsel for the accused further argued that the fine imposed upon the petitioners is excessive. I do not find any force in this argument. Chand Singh was given a severe beating. Many fractures were found on his body.

The learned counsel for the petitioners argued that even if it is held that Kochi (since deceased) had participated in the occurrence, the number of the accused falls below 5 as Gurjant Singh has been acquitted by the learned lower Appellate Court and, therefore, the said Court was not right in maintaining the conviction of the present petitioners under section 148 of the Indian Penal Code. I am of the opinion that this argument has force. Section 148 comes into play when the number of accused is 5 or more. When it falls below that number section 148 of the Indian Penal Code is not attracted. The learned lower Appellate Court forgot this basic principle. Therefore, the petitioners are entitled to acquittal under section 148 of the Indian Penal Code.

The learned counsel for the accused further pointed out that at the time of framing of the charge on 18th December, 1978, Bahadur Singh accused had given his age as 16 years and therefore, at the time of the commission of the offence he was below 16 years of age and thus fell within the definition of `child'' as given in the East Punjab Children Act, 1949 and, therefore, in view of section 27 of the said Act he could not have been committed to prison for any offence unless the Court certified that he was of so unruly or of so depraved a character that he was not a fit person to be sent to a certified school and that none of the other methods in which he could have been legally dealt with was suitable. He further pointed out that in the present case neither the trial Court nor the learned lower Appellate Court has given such a finding. I am of the opinion that this argument also has force. It is not understood how the learned Courts below forgot the provisions of the above Act while dealing with a "child". A "child" who is charged with any offence and his guilt is established, the Court has to deal with him under section 35 of the Act. As more than 5 years have expired since the commission of the offence, Bahadur Singh must be now about 21 years of age, no useful purpose would be served by sending him to certified school where he can be detained only upto 21 years of age.

In the light of the above discussions, the conviction and sentence of the petitioners under Section 148 of the Indian Penal Code is set aside and they are acquitted of that charge. The conviction of the petitioners for the other offences is altered to the extent that whether they have been convicted with the aid of section 149 of the Indian Penal Code, they would be deemed to have been convicted with the aid of section 34 of the Indian Penal Code. The sentences of Jagrup Singh and Mohinder Singh are maintained and qua them the revision is dismissed with the above modification.

The sentences of Bahadur Singh are set aside and he is ordered to be released on probation of good conduct for a period of 2 years on his entering into a bond in the sum of Rs. 5000/ with one surety in the like amount. The bonds be filed to the satisfaction of the Chief Judicial Magistrate and in his absence Duty Magistrate, Bhatinda, within 2 months from today failing which the revision qua him shall also stand dismissed.

JUDGMENT accordingly.