Jambar Singh vs State of Punjab

A.S. Nehra, J.

This appeal is directed against the judgment and order dated May 30, 1987, passed by the Additional Sessions Judge, Amritsar, by which appellants Jambar Singh and Nishan Singh have been convicted under Sections 325 and 323 read with Section 34, Indian Penal Code, and sentenced as under:

Jambar Singh and Nishan Singh. RI. for two years and a fine of Rs. 1,500/ u/s 325 IPC. In default of payment of fine, to undergo further R.I. for three months, each.

Nishan Singh. R.I. for nine months and to pay a fine of Rs. 500/ u/s 323, IPC. In default of payment of fine, to undergo further R.I. for one month.

Jambar Singh. R.I. for nine months and to pay a fine of Rs. 500/ u/s 323/34 IPC. In default of payment of fine, to undergo R.I. for one month.

50% of the fine, if recovered, was ordered to be paid to the injured. Both the substantive sentences were, however, ordered to run concurrently.

The prosecution story, in brief, is that on April 12, 1986, at about 1.00 A.M., Joginder Singh, complainant went to his field and on reaching there, he saw accused Jambar Sjingh armed with a sua and accused Nishan Singh armed with a dang present there. Accused Jambar Sjingh raised a lalkara that he had a huge amount with him and Joginder Singh be taught a leasson for coming to the field. Thereupon, accused Jambar Singh gave him a sua blow from the side of dang which hit him on his right arm while accused Nishan Singh gave him a dang blow on his left arm. Accused Jambar Singh gave another sua blow from the side of dang hitting him on the dorsum of his left hand. Accused Nishan Singh gave a dang blow by pushing the dang on the right side of his chest. On hearing lalkara of accused Jambar Singh, Balkar Singh (PW 3), nephew of Joginder Singh injured, who was cutting fodder near his field, came to the spot and witnessed the occurrence. On seeing Balkar Singh, bith the accused ran away from the spot with their respective weapons. Ajit Singh, brother of injuried Joginder Singh took him to the hospital at Valtoha in a tonga where the doctor was not available. He was then taken to Rural Dispensary, Khemkaran and was got admitted there and medicolegally examined by Dr. Hakam Singh (PW 5), who found the following injuries on his person :

Painful swelling around upper half of right forearm with laceted wound on inner right forearm. 1.5. cm x 0.5 cm., 8 cms below the elbow joint. Blood clots were present. Xray was advised.

Uniform painful swelling around whole of left forearm with lacerated wound 1.5 cms x 1.0 cm on inner middle left forearm. Patient was unable to lift the limb. Blood clots were present. Xray was advised.

Swelling on whole of dorsum of left hand, tender to touch. Xray advised.

Complaint of pain on right chest.

Injury No. 4 was declared simple in nature and rest of the injuries were kept under obsevation.

Joginder Singh, injured, was Xrayed by P.W. 4 Dr. Sham Lal Gupta, who made the following observation :

Xray right forearm. A.P. and lateral view. Fracture of right ulna. Upper onethird part was seen.

Xray left forearm. A.P. and lateral view. Commuted fracture of left ulna and fracture of right radius middle shaft were seen. Xray left hand : A.P. and lateral view. Fracture of 2nd and 5th head of metacarpals were seen.

After receipt of Xray report, injuries No. 1 and 3 were declared grievous in nature. Dr. Hakam Singh sent the medicolegal report of Joginder Singh, injured, to Police Station Valtoha, on receipt of which P.W. 7 ASI Jhilmil Singh went to Rural Dispensary, Khemkaran and moved application, Ex. PE, before the doctor to ascertain as to whether Joginder Singh was fit to make a statement or not. Vide his ensorsement, Ex.PE/1, made on the police request the doctor declared Joginder Singh injured fit to make a statement. Thereafter, ASI Jhilmil Singh recorded statement, Ex. PA, of Joginder Singh injured. It was read over to Joginder Singh, who thumbmarked the same in token of its correctness. After making his endorsement, Ex.PA/1, on statement, Ex. PA, and on his return to the Police Station, the Investigating Officer recorded an entry in the roznamacha and a case was registered against the accused under Sections 325/323 read with Section 34, Indian Penal Code, vide F.I.R., Ex. PG. ASI Jhilmil Singh, thereafter, went to the place of occurrence, prepared rought site plan, Ex. PH, and recorded the statements of the witnesses.

On the same day at 2.15 P.M., Dr. Hakam Singh (PW 5) examined accused Joginder Singh son of Gajjan Singh and noted the following injuries on his person :

Lacerated punctured wound on outer middle left forearm 0.5 cm x 0.25 cm. The margins were inverted and contused. Serum was oozing from the wound. Blood clots were present. Xray advised.

Lacerated punctured wound 0.5. cm x 0.5 cm on outer left fore arm, 3 cms blow injury No. 1. Margins were contused and inverted. Blood clots were present. Xray advised.

Lacerated punctured wound 0.5 cm x 0.25 cms on front of left forearm, 8 cms blow the elbow joint. Margins were inverted and contused. Blood clots were present. Xray advised.

Lacerated punctured wound 0.5 cm x 0.25 cm on palmer surface of base of left hand. Margins were inverted and contused. Blood clots were present. Xray advised.

All the injuries were stated to have been kept under observation and their probable duration was opined to be within 12 hours. After seeing the Xray report, all the injuries were declared as simple and the weapon used was declared as fire arm. Xray report and Xray film were sent to Police Station Valtoha on May 3, 1986 and the same were received by ASI Jhilmil Singh. Ex.DA is the opinion of the doctor regarding the nature of the injuries and weapon of offence used.

On the same day at 2.40 PM, Dr. Hakam Singh (PW 5) examined accused Nishan Singh son of Sulakhan Singh and noted the following injury on his persons:

A lacerated wound 1.5 cms x 0.5 cm on dorsum of middle of right index finger. Blood clots were present. Xray was advised. Injury was kept under observation.

Duration of the injury was opined to be within 12 hours, caused by blunt weapon.

To prove its case, the prosecution examined P.W. 1 Joginder Singh, P.W. 2 Ajit Singh, P.W. 3 Balkar Singh, P.W. 4 Dr. Sham Lal Gupta, P.W. 5 Dr. Hakam Singh, P.W. 6 Mukhtar Singh, Patwari, P.W. 7 ASI Jhilmil Singh and closed the prosecution evidence after giving up all other witnesses being unnecessary.

When examined under Section 313, Criminal Procedure Code, to explain the circumstances appearing in the prosecution evidence against them, the appellants denied simpliciter and pleaded innocence. Jambar Singh, appellant, further took up the plea as under:

"I am falsely implicated in this case. In fact, on the day of occurrence, I along with Nishan Singh accused had gone to our fields. At about 10.00 A.M., Joginder Singh, Mohinder Singh and Shingara Singh were also present in their fields and they asked us not to reap the crop, which Nishan Singh had sown in his field. After some time. Shingara Singh and Mohinder Singh armed with pistols, Joginder Singh armed with a dang, came there. At that time, we were reaping our crop and Joginder Singh gave a dang blow on the person of Nishan Singh and Mohinder Singh and Shingara Singh also gave me injuries by firearms. Partap Singh and Nihal Singh also witnessed the occurrence. Partap Singh used a dang in selfdefence to save us and caused injuries on the person of Joginder Singh."

However, the appellants did not lead any evidence in defence.

I have heard Mr. H.S. Bhullar, Advocate, learned counsel for the appellants, and Mr. Parminder Singh, Assistant Advocate General, Punjab, and have gone through the record very carefully.

The learned counsel for the appellants contended that there was no motive on the part of the appellants to cause injuries on the person of Joginder Singh; rather there was a motive on the part of Joginder Singh and he had caused the injuries to the appellants. He further contended that the complainant and his brothers Shingara Singh and Mohinder Singh were taking forcible possession of the land which was in possession of Nishan Singh. He further contended that Partap Singh and Nihal Singh had witnessed the occurrence in which Partap Singh gave a dang blow to Joginder Singh, complainant, in order to defend the appellants.

There is no force in the contention raised by the learned counsel for the appellants. The occurrence in this case has been admitted by the appellants. The only point which is to be determined in this case is whether the complainant party was the aggressor or the accused were the aggressors. Joginder Singh (P.W.1) stated that he had taken 6 kanals 16 marlas of land from the Central Government after paying the requisite instalments and had sown wheat crop in the said land. He further stated that the appellants did not allow him to reap the wheat crop from his field and due to this reason, security proceedings under Sections 107/151, Criminal Procedure Code, were started by the police between Joginder Singh (P.W. 1) and Jambar Singh, appellant. Joginder Singh (P.W. 1) had also filed a civil suit which was decreed in his favour regarding the land measuring 6 kanals 16 marlas. Balkar Singh (P.W. 3) also deposed that his uncle Joginder Singh had purchased 6 kanals 16 marlas of land from the Government and he had paid the instalments for the said land, and that his uncle had sown wheat crop in that land. He further stated that Jambar Singh and Nishan Singh did not allow Joginder Singh to reap the wheat crop.

P.W. 6 Mukhtar Singh, Halqa Patwari, deposed that copy of Khasra Girdawari, Ex. PF, for the years 198283, 198384, 198485 and 198586 regarding Khasra No. 22/1 measuring 6K 16 M stood recorded in the name of Joginder Singh son of Mal Singh.

P.W. 7 ASI Jhilmil Singh, Investigating Officer, stated that he had prepared rough site plan, Ex. PH, and as per Ex.PH, the occurrence had taken place at point ''A'' which fell in the field of Joginder Singh complainant.

From the ocular evidence of Joginder Singh (P.W. 1), Balkar Singh (P.W. 3), Mukhtar Singh, Halqa Patwari (P.W. 6) and from the rough site plan, Ex. PH, prepared by ASI Jhilmil Singh (P.W. 7), it has been proved that the occurrence had taken place in the field of Joginder Singh complainant. The appellants, therefore, had no right to trespass the land of Joginder Singh complainant and to cause injuries to him. Thus, the appellants are held to be the aggressors.

The next contention raised by the learned counsel for the appellants is that prosecution witnesses in this case are interested witnesses and they have supported the case of Joginder Singh complainant being his close relations, but I do not find any force in this contention. Balkar Singh (PW 3), whose land adjoins the land of his uncle Joginder Singh, was cutting fodder at a distance of 3/4 Killas from the land of Joginder Singh. Thus, his presence in his field at the time of occurrence was natural.

The prosecution has been able to prove its case against the appellants on the basis of the ocular account of the version given by Joginder Singh (P.W. 1) and Balkar Singh (P.W. 3), who have narrated the occurrence in minuutes details. As observed earlier, Joginder Singh (P.W. 1) deposed that he had taken land from Central Government on instalments and had sown wheat crop therein but the accused did not allow him to reap the said wheat crop from his field. He further deposed that on the day of occurrence, he saw Jambar Singh, appellant, armed with a sua and Nishan Singh, appellant, armed with a dang. Jambar Singh, appellant, raised a lalkara saying that a lesson be taught to Joginder Singh for coming to the field, whereafter Jambar Singh, appellant, gave a sua blow to Joginder Singh from the side of dang which hit him on his right arm, while Nishan Singh, appellant, gave him a dang blow hitting his left arm. Jambar Singh, appellant, gave another dang blow which hit him on the dorsum of his left hand, while Nishan Singh, appellant, gave a dang blow by pushing the dang on the right side of chest. To the same effect is the statement of Balkar Singh (P.W. 3). They were crossexamined at length by the learned counsel for the accused but their testimony could not be shattered. There is no contradiction or discrepancy in their statements. They had corroborated the statements of each other regarding the time and place of the occurrence and the injuries attributed to the appellants. Ajit Singh (P.W. 2), brother of Joginder Singh complainant, deposed that his brother had purchased 6 Kanals of land from the accused party, that the accused party had caused injuries to his brother and that he took his brother in injured condition to Civil Hospital, Khemkaran, where he was medicolegally examined by Dr. Hakam Singh (P.W 5). The ocular version given by PWs Joginder Singh and Balkar Singh has been fully corroborated by medical evidence. Dr. Hakam Singh (P.W. 5) examined Joginder Singh (P. W 1) and declared injury No. 4 as simple and kept the other injuries under observation. Dr. Sham Lal Gupta (P.W. 4) had Xrayed upon the injured and on receipt of Xray report, injuries No. 1 and 3 were declared grievous in nature.

The learned counsel for the appellants next contended that the prosecution did not explain the injuries on the person of the accused. I do not find any force in this contention also. ASI Jhilmil Singh (P.W. 7) deposed in his statement that there were injuries on the person of Jambar Singh and Nishan Singh, accused, and he did not challan the complainant because the injuries on the person of the appellants were of suspicious nature and the doctor had not given his opinion regarding the nature of the injuries on the person of Jambar Singh, appellant. In his statement recorded by the police, Jambar Singh, appellant, stated that accused Nishan Singh had received an injury on his person with a kirpan, whereas according to the doctor the said injury was caused with blunt weapon. This witness further stated that due to that reason, the complainant party was not challaned. During cross examination Dr. Hakam Singh (P.W. 5) admitted that possibility of injuries on the person of Jambar Singh, accused, being selfsuffered could not be rule out. As the injuries on the person of Jambar Singh, appellant, were on the nonvital part of the body, I am of the opinion that the appellants had not suffered these injuries from the complainant party during the occurrence and that the appellants had suffered these superfluous injuries on their person to put up a false defence. Therefore, the prosecution is not bound to explain the injuries on the person of the appellants.

Learned counsel for the appellants argued that the appellants are young men of 26/27 years of age and they are first offenders and that there is nothing adverse against their character and antecedents. The submission, thus, is that instead of sentencing them to imprisonment, they may be ordered to be released on probation of good conduct. I am inclined to agree with the learned counsel for the appellants in this behalf. Consequently, while conviction of the appellants under Sections 325/323 read with Section 34 of the Indian Penal Code is maintained but their sentence is suspended and they are ordered to be released on probation of good conduct on their furnishing the necessary bonds in the sum of Rs. 5,000/ each with one surety in the like amount each, undertaking to keep peace and to be of good behaviour for a period of one year. The appellants are also further directed to pay a sum of Rs. 3,000/ each to Joginder Singh, injured PW, by way of compensation for his injuries. The bond shall be furnished and compensation shall be deposited with the trial Court within six months from today, failing which the sentence imposed upon the appellants by the trial Court shall take effect.

The appeal is accepted partly to the extent indicated above.