Jarnail Singh vs State of Haryana

R.L. Anand, J.

This is a criminal appeal filed by Jarnail Singh and has been directed against the judgment and order dated 17.1.1987 passed by the court of Additional District and Sessions Judge, Kurukshetra, who convicted the appellant u/s 308, IPC and sentenced him to undergo R.I. for a period of 5 years and a fine of Rs. 5,000/, in default of payment of fine, he was directed to undergo further R.I. for six months. It was further ordered by the learned trial court that the fine, if realised, shall be payable to the injured by way of compensation. Vide the same judgment and order, the learned Addl. Sessions Judge, Kurukshetra also convicted and sentenced the two brothers of the present appellant; namely Nirwaih Singh and Karnail Singh u/s 323, IPC. However, the trial court extended the benefit on probation in the sum of Rs. 2,000/ for a period of two years directing him to keep good behaviour during the period of probation and he was also directed to remain under the supervision of the District Probation Officer, Kurukshetra. Karnail Singh was sentenced to three months simple imprisonment u/s 323, IPC, which he had already undergone and he was set at liberty.

The brief facts of the case are that the agricultural land of Malook Singh, PW3, was located on one side and that of the accused; namely, Jarnail Singh, Nirwaih Singh and Karnail Singh, on the other side of the Village Malakpur. In between these lands, there was a common dol. In fact, there had been a dispute and the accused persons had been claiming this dol to their exclusive passage and did not allow the complainant party from passing over the dol. As such, there had been some litigation between the parties and the complainant party was using this dol, which had aggravated the situation in the minds of the accused. This was the motive.

The story of the prosecution further proceeds that on 12.1.1986, at about 5 PM, Malook Singh, PW3, was passing over the dol when the appellant Jarnail Singh abused him by the name of the daughter. Malook Singh asked Jarnail Singh not to abuse like that but Jarnail Singh did not stop and continued hurling the abuses. At that time, Jarnail Singh was, allegedly, armed with a gandassi and his two brothers were carrying lathis. Jarnail Singh opened the score and inflicted a lathi blow which hit on the head of Malook Singh, as a result of which, the injured fell down. He was inflicted two lathi blows by each of the two accused; namely Nirwaih Singh and Karnail Singh. The occurrence was witnessed by Mukhtiar Singh, PW2, who is son of Malook Singh and happened to be present nearby at a Dera along with Lakhwinder Singh and Moga Singh, who were attracted at the spot and they too also witnessed the occurrence. When Mukhtiar Singh and his two companions, aforesaid, raised an alarm `Na maro, na maro'', the accused ran away from the place of occurrence along with their respective weapons. After receiving the injuries, Malook Singh had fallen unconscious. Mukhtiar Singh, PW2, carried his father with the help of others to the Health Centre Ismailabad and, later on, he was taken to PGI, Chandigarh. Malook Singh, injured, remained unconscious in the hospital for a few days.

FIR in this case was lodged by Mukhtiar Singh, who made the statement before the police on 14.1.1986, Ex.PE, on the basis of which, formal FIR, Ex. PE/3, was recorded. The investigation was conducted by PW6 ASI Mange Ram, who visited the place of occurrence and took into possession the bloodstained earth from the fields vide memo Ex. PF. He also took into possession the bloodstained turban of the injured vide memo Ex.PG. He prepared the rough site plan, Ex.PM, of the place of occurrence and recorded the statement of Malook Singh, injured, when he was declared fit to make the statement. Scaled site plan, Ex.PH, was also got prepared from the Revenue Patwari.

Dr. S.C. Sikka, Medical Officer, Ismailabad, PW1, medically examined Malook Singh and found as many as five injuries on his person described below :

"1. A lacerated wound was on the forehead right half, it was 6 cm above from the medial and of right eye brow. It was 3 x 1.5 cm in size and was muscle deep. Fresh blood was oozing from the wound.

An incised wound was on the right temporal region of the skull. It was lying vertical in direction. It was 4 x 1 cm incise and was bone deep. Fresh blood was oozing continuously from the wound. Xray skull AP and lateral view was advised.

A lacerated wound was on the forehead right half 2 cms above the lateral end of right eye brow. It was 9.5 x 0.5 cm incise and was muscle deep.

An abrasion was on the right cheek. It was 4 x 3 cm incise.

Continuous bleeding from internal ear right side. Opinion of ENT specialist was required for this injury. Patient was kept under observation."

As per this doctor, the patient was kept under observation. He forwarded the MLR, Ex. PA, and ultimately opined that the injury on the head could be dangerous to life.

Dr. S.K. Mandal, PW7, Medical Officer, Neurologist from PGI, stated that the injury on the person of Malook Singh could have proved fatal.

On the completion of the investigation of the case, all the three accused were challaned in the court of the Illaqa Magistrate u/ss 308/324/323/34. IPC. The learned Magistrate supplied the copies of the documents to the accused according to law free of cost and vide commitment order dated 23.4.1986, committed all the three accused to the court of Sessions.

Vide order dated 7.5.1986, the learned Additional Sessions Judge, Kurukshetra, framed charges against the accused u/ss 308/324 read with sections 34 and 323, IPC. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined Dr. S.C. Sikka, PW1, Mukhtiar Singh (complainant and son of the injured), PW2, Malook Singh, injured, PW3, Kishan Chand, PW4, Inspector Jeet Ram, PW5, ASI Mange Ram, PW6 and Dr. S.K. Mandal, PW7. The prosecution also tendered into evidence the reports besides the affidavits of the formal witnesses and closed the case.

The statements of the accused were recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated that they were innocent.

When called upon the enter into their defence, the accused did not lead any evidence and closed the case.

The learned trial court believed the prosecution story in part and convicted and sentenced the appellant Jarnail Singh u/s 308, IPC read (sic), and sentenced him in the manner as stated above. Nirwaih Singh and Karnail Singh were convicted for their individual liability. However, as stated above, Nirwaih Singh was granted the benefit of probation, while Karnail Singh was sentenced to three months S.I., which he had already undergone. Aggrieved by his conviction and sentence, the present appeal has been filed by Jarnail Singh.

I have heard Mr. R.S. Cheema, Sr. Advocate, on behalf of the appellant and Mr. J.S. Ahlawat, Advocate, appearing on behalf of the respondentState and with their assistance have gone through the record of this case.

Shri Cheema made an endeavour to dilute the offence qua the appellant, who was convicted by the trial Court u/s 308, IPC. In his endeavour to dilute the offence, the learned senior counsel relied upon the statement of PW1 Dr. S.C. Sikka and PW7 Dr. S.K. Mandal and submitted that a perusal of the M.L.R. of the injured and the opinion of these two doctors would show that there was hardly any grievous injury on the person of the injured and in the absence of any grievous injury, it was not justified on the part of the doctors or on the part of the lower court to formulate an opinion that the offence u/s 308, IPC, was made out against the appellant. The counsel also submitted that the genesis of the occurrence has been withheld by Malook Singh and his son Mukhtiar Singh, who is an interested witness and for that reason also the trial court has wrongly formulated an opinion that the offence u/s 308, IPC, is made out. According to the counsel at the most the appellant can be convicted for the offence u/s 324, IPC and since the appellant is undergoing the agony of the criminal proceedings since 1986, therefore, the benefit of probation should also be extended to him like his coaccused Nirwaih Singh.

On the contrary, the learned State counsel has adopted the reasons of the trial court and stated that the trial court has rightly drawn the conclusion so as to formulate the opinion that the offence u/s 308, IPC, has been made out qua the appellant and the sentence which has been awarded to him is also not excessive.

After considering the rival contentions of the parties, I am of the opinion that the submissions which have been raised by the learned counsel for the appellant can be accepted to some extent but so far as the offence part is concerned, this Court is of the considered opinion that the appellant Jarnail Singh has been rightly convicted for the offence u/s 308, IPC.

Section 308, IPC lays down as under :

"308. Attempt to commit culpable homicide. Whoever, does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years; or with fine, or with both."

If I refer to the allegations of the prosecution, it is the proved case on the record that there was a motive between the complainant party and the accused. The dispute was over a dol. Both the parties were claiming their right, title and interest over the dol. Malook Singh and his son wanted to exercise their right over the common passage which falls between the lands of two parties and that right was going to be deprived to them by the accused party in a belief that the complainant party had no right, title or interest over that dol. For this reason, the complainant party had been approaching the accused. Thus, it can be said that the relations between the parties at the time of the occurrence were not cordial and one of the parties were definitely sore against the opposite party. Even if it is assumed for the sake of arguments that the accused did not want to attack the complainant party with the intention or knowledge so as to cause their death, certainly, they had caused grievous injuries on the vital part of the body atleast with a knowledge that had they caused the death of the injured, they would have been guilty of the offence under section 304, IPC. A glance to the injuries quoted above would show that two injuries are on the vital part of the body. I may not be wrong in saying that three injuries are on sensitive part of the body. it is not a case of one solitary injury or two injuries but it is a case where the injured has allegedly suffered five injuries at the hands of three persons. It is true that the occurrence has taken place on 12.1.1986 and the FIR was lodged on 14.1.1986 by Mukhtiar Singh, son of the injured, but this circumstance alone is not going to become fatal to the prosecution for the reason that Malook Singh is a stamped witness and he has supported the allegations of the prosecution as given by his son Mukhtiar Singh. The delay in lodging the FIR cannot be held to be per se fatal to the prosecution. It depends upon case to case. In this case, Malook Singh had suffered injuries, which though were not dangerous to life, but definitely these injuries were very serious. He was under a shock. He suffered a haematoma. The Neurologist of the PGI, Chandigarh opined that this injury could have proved fatal. Explanation has been given by Mukhtiar Singh that after the occurrence, he went to the house of his sister so as to inform her of the occurrence. The first anxiety of Mukhtiar Singh was to save the life of his father Malook Singh and equally there can be a possibility that the police might have intervened to bring about a compromise between the two neighbours. Be that as it may, the fact remains that the FIR in this case has been lodged after an delay of two days but that delay has been explained by Mukhtiar Singh. Even if it is assumed for the sake of arguments that Mukhtiar Singh has not been able to explain the delay, still the benefit cannot be granted to the accused because of the injuries suffered by Malook Singh, who is an injured and stamped witness of this case and has corroborated the allegations of the prosecution. So far as the participation of the three accused is concerned, it is proved from the statement of Malook Singh, injured, whose statement is corroborated by PW2, though an effort has been made by the learned counsel to convince me that the presence of Mukhtiar Singh looks to be doubtful because as per site plan, Ex.PM, the presence of Mukhtiar Singh has been shown at a distance of 41/2 killas and it is highly unlikely that he could witness the occurrence.

I do not subscribe to the argument of Mr. Cheema after scanning the scaled site plan, Ex.PH, because I do not see any obstruction between the points where Mukhtiar Singh was, allegedly, standing and where Malook Singh sustained injuries.

The counsel for the appellant also wanted to convince with the help of Ex.PH that Malook Singh, injured, has suffered the injuries inside the field, which was in the possession of the accused party and the possibility cannot be ruled out that Malook Singh had trespassed into the land of the accused with some cattle head so as to damage the crop of the accused party and over some altercation, the injured might have suffered the injuries at the hands of one person.

Suppositions do not stand the test of human probability. When a fight takes place, the condition of an injured never remains static. When a person has been encircled by the assailants, he will try to run for his safety from one place to another. He cannot remain static at one point. If Malook Singh has tried to run away inside the fields of the accused party in order to save his life at the hands of the assailants, it cannot be said that he has trespassed into the land because his entry into the land of the accused party is not with the intention to commit any offence but to save his own life. The testimony of two witnesses, i.e. Mukhtiar Singh and Malook Singh, who are probable and believable is supported by medical evidence also. As there is no evidence to the effect that Nirwaih Singh and Karnail Singh ever shared the common intention with their coaccused Jarnail Singh, therefore, the trial court was justified in recording conviction against them u/ss 324/323, IPC. Even if no injury grievous in nature has been noticed by the doctor who medically examined the injured and that the injury which has been proved dangerous to life has no basis, still, the conviction can be recorded u/s 308, IPC, against the appellant for the reasons which I have given above. The accused were armed with deadly weapons like gandassi and lathis. They have selected the sensitive parts of the body like head. The injuries are on the sensitive part of the body, i.e. head. One injury was even bone deep. Resultantly, I am inclined to maintain the conviction of the appellant u/s 308, IPC.

With regard to the quantum of sentence of the appellant, I am of the opinion that the ends of justice will suffice, if his substantive sentence is reduced to two years u/s 308, IPC, keeping in view the fact that he has suffered the agony of criminal proceedings since 1986. JUDGMENTed accordingly.

With the above modification in the matter of sentence, the appeal of the appellant Jarnail Singh stands dismissed.