Joga Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed by two brothers Joga Singh and Pritam Singh and their father Tega Singh, and has been directed against the judgment and order dated 10.7.1986 passed by the court of Addl. District and Sessions Judge, Amritsar, who convicted and sentenced the appellants as follows :

Joga Singh

U/s 307 IPC, R.I. for a period of 7 years and to pay a fine of Rs. 1,000/; in default of payment of fine, further R.I. for three months.

U/s 324/34 IPC, RI for 2 years and to pay a fine of Rs. 500/; in default of payment of fine, further RI for 2 months.

U/s 323/34 IPC, RI for three months.

Tega Singh

U/s 307/34 IPC, R.I. for a period of 3 years and to pay a fine of Rs. 500/; in default of payment of fine, further R.I. for two months.

U/s 324 IPC, RI for 2 years and to pay a fine of Rs. 500/; in default of payment of fine, further RI for 2 months.

U/s 323/34 IPC, RI for three months.

Pritam Singh

U/s 307/34 IPC, R.I. for a period of 3 years and to pay a fine of Rs. 500/; in default of payment of fine, further R.I. for two months.

U/s 324/34 IPC, RI for 2 years and to pay a fine of Rs. 500/; in default of payment of fine, further RI for 2 months.

U/s 323 IPC, RI for three months.

The trial court also held that all the sentences shall run concurrently.

The brief facts of the case are that on 13.8.1984, at about noon time, Hazara Singh and his brother Mohar Singh were busy in their fields while their father Surta Singh was grazing the cattle near the drain bridge. Mother of Hazara Singh also came there with tea. In the meanwhile, Joga Singh, appellant, armed with a spear, his father Tega Singh, armed with a Gandassi and his brother Pritam Singh, armed with a Takua, came there. Tega Singh raised a lalkara that father of Hazara Singh had saved himself last year after complaining about shrieks and that they would not allow him to go scot free on that day. Upon this, Joga Singh opened the score and gave a spear blow to Surta Singh which hit him on the face on the right side of nose. Thereafter, Tega Singh gave a Gandassi blow which hit the right hand of Surta Singh. Then, Pritam Singh gave three Takua blows from the reverse side to Surta Singh, After causing the injuries, the accused ran away from the place of occurrence. Surta Singh was, then removed to Civil Hospital in a Tonga and he was medically examined. On the statement of Hazara Singh made before the police, the case was registered. Joga Singh was arrested and after suffering a disclosure statement, he got recovered spear, which was taken into possession. The above are the small facts and after the completion of the investigation of the case, the appellants were challaned in the Court of the Special Judge, Jalandhar. Vide orders dated 16.3.1985, the accused were chargesheeted u/ss 307, 307/34, 324, 324/34, 323 and 323/34, IPC. The charge was read over and explained to the appellants to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined Dr. Kuldeep Singh Sodhi, PW1, who medically examined Surta Singh on 13.8.1984 and found as many as 5 injuries on his person, which read as under :

"1. An incised wound 3 cm x 1/2 cm on the dorsal surface and medial side of right thumb. The movement of thumb at metacarpal phalangeal joint was restricted; fresh blood present at the margin of the wound; fresh bleeding from the site of wound;

A round swelling on the top of head; on the right side 6 cm in diameter,

The swelling of upper and lower eye lids, blue in colour; the patient was unable to open the eye; even on trial by fingers, eye could not be opened; due to swelling of the upper and lower eye lids of right side.

A lacerated wound 4 cm x 2 cm on the right side and front of the bridge of nose, skin deep underlying maxilla bone appears to be fractured.

An incised stab wound 4 cm x I cm on right side of ala of nose; cutting the anterior and inferior surface of the septum of the nose; wound was profusely bleeding; cut reaching the mucis membranes on the other side."

Injuries No. 1, 2 and 4 were subjected to xray and injury No. 3 was kept under observation and injury No. 5 was declared dangerous to life. Duration of injuries was within 6 hours. Weapon used was sharp edged for injury No. 1, sharp pointed for injury No. 5 and blunt for injuries No. 2 to 4. Ex. PA is the correct carbon copy of the MLR of Surta Singh. It has been further opined by the doctor that injury No. 5 could be caused by spear and injury No. 1 by a Gandassi. On 13.8.1984, ASI Ram Nath presented the application, Ex. PD, before the doctor, who declared Surta Singh as unfit to make the statement vide his opinion, Ex. PD/1. Subsequently, injury No. 4 was declared as grievous in nature. HC Baldev Singh appeared as PW2 and deposed that Tega Singh produced Gandassi before the I.O. and it was taken into possession vide recovery memo, Ex.PD, attested by him. In his presence Joga Singh was also interrogated about the weapon of offence and he suffered a disclosure statement that he had kept concealed the spear in the Musal of Turi near his bethak in his fields and he could get the same recovered by pointing out the place of concealment. Thereafter, Joga Singh led the police party and witnesses to the specified place of concealment and got recovered the spear, Ex. P2, which was taken into possession by a separate recovery memo, also attested by him. Hazara Singh, PW3, is the son of the injured and he deposed about the occurrence by stating that Tega Singh raised a lalkara on the day of occurrence to the effect that his father had saved himself last year but this time he will not be allowed to go scot free. it has been also stated by this witness that Joga Singh opened the score by giving a spear blow on the face on the right side of the nose of his father and that Tega Singh gave a gandassi blow which hit on the right hand of his father. Further, the witness deposed that Pritam Singh gave three Takua blows to his father from the reverse side but he has not specified the seats of those blows. It has been also deposed by this witness that he and his brother Mohar Singh raised hue and cry and ran towards the side of the occurrence, however, they could not intervene as they were unarmed. It has further come in the statement of this witness that after causing injuries, all the three appellants ran away from the place of occurrence and he took his father in a Tonga to the hospital. Surta Singh, injured appeared as PW4 and he has also corroborated the prosecution story by stating that he was attacked by all the three appellants. Jita wife of Surta Singh was tendered for the purpose of crossexamination only like Mohar Singh, PW6. I.O. Ram Nath, appeared as PW7. Finally, the prosecution tendered into evidence, affidavits of the formal witnesses and after tendering the report of the Forensic Science Laboratory Ex. PZ, closed the case.

On the closure of the prosecution evidence, 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 them. Accused denied those circumstances and their plea was that they were innocent.

In defence, the accused examined Dr. Hakam Singh, DW1, who medically examined Joga Singh and found the following 4 injuries on his person :

"1. An incised wound 6 x 0.5 cm oblique on right front to perietal region of scalp 5.5 cm above right brow; wound was bleeding and it was bone deep; X ray was advised.

Incised wound 5.5. cm x 0.7 cm on inner lower right forearm 7 cm above wrist joint; transverse in direction and was bone deep; fresh bleeding was present. Xray advised.

Reddish contusion 20 cm x 1.5 cm oblique on back middle left chest.

Reddish contusion 8 x 1 cm oblique on right scapula region."

Injuries No. 1 and 2 were kept under observation and injuries No. 3 and 4 were declared simple in nature. After the receipt of the xray report, injury No. 1 was declared simple while injury No. 2 was declared grievous.

The learned trial court believed the story of the prosecution and convicted and sentenced the appellants in the manner as stated above and aggrieved by their conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. Gautam Dutt, counsel for the appellants and Mr. Vikas Cuccuria, AAG, Punjab, appearing on behalf of the State.

Before I proceed further into the matter, I may also state that a criminal complaint was also filed by Jagtar Singh against Surta Singh, Mohar Singh, Joginder Singh and Niranjan Singh u/ss 326/324, IPC on 7.9.1984 alleging that Surta Singh and others had acted as aggressors but the complaint was dismissed after regular trial vide judgment dated 10.7.1986. Jagtar Singh has not filed any criminal appeal in the High Court against the judgment of acquittal against Surta singh and others.

In this case the contention of the learned counsel for the appellants is two fold. Firstly, he submitted that the prosecution has failed to explain the injuries on the person of Joga Singh, appellant and in these circumstances, the prosecution has concealed the genesis of the occurrence.

On the contrary, the counsel for the State submitted that the complaint with regard to the injuries of Joga Singh has already been dismissed by the trial court holding that it was a delayed version and moreover, the appellants did not take any plea in their statements u/s 313, Cr.P.C. that the complainant party had acted as aggressor.

I do not subscribe to the argument raised by the counsel for the appellants. It is not the case of the appellants that the complainant party acted as an aggressor. Their statements u/s 313, Cr.P.C. are only to the effect that they are innocent. Assuming for the sake of arguments that Joga Singh suffered the injuries during the same occurrence, yet Joga Singh cannot take the advantage of this fact as it is not proved on the record that the complainant party acted as an aggressor. According to the allegations of the defence, there were four persons armed with deadly weapons and in that eventuality if the complainant party acted as an aggressor, I would have expected much more damage on the side of the accused besides the injuries of Joga Singh. It appears that in their right of private defence, the complainantparty might have caused some injuries to Joga Singh and, in these circumstances, the prosecution is not obliged to explain the injuries of the aggressor as the aggressor has no right of private defence. I also cannot lose sight of the fact that in this case wife of Surta Singh was also present at the time of the occurrence, which is suggestive of the fact that the complainant party never wanted to act as an aggressor because it has been seen in experience that in village life, the villagers do not take with them the ladies in order to attack the opposite party. Nobody would like to take liability with him. Rather, the story of the prosecution is more probable. On the day of the occurrence, the father and his two sons were present in the fields. Father was grazing the cattle while the two sons were working in the fields. There was past motive on the part of the accusedparty and for that reason they might have thought it proper to take the revenge by causing injuries to Surta Singh.

The second submission of the counsel for the appellants is that the story of the prosecution in this case looks to be improbable. The counsel submitted that Surta Singh has only five injuries on his person. The nature of the injuries is suggestive of the fact that the participation of two persons alone cannot be ruled out. Moreover, it has not been stated by the witness about the seat of the injuries allegedly given by Pritam Singh.

I find merit in the suggestion of the counsel for the appellants because Surta Singh had only five injuries. There are two types of injuries on his person, suggestive of the fact that atleast two persons must have participated in the occurrence. As per the prosecution story given by Surta Singh and his son Hazara Singh, Tega Singh was the person who gave the lalkara and, thereafter, Joga Singh opened the score by giving a spear blow to Surta Singh, which hit on the face of the right side of the nose. Thereafter, Tega Singh gave a gandassi blow which hit on the right hand of Surta Singh. With regard to the injuries caused by Pritam Singh, Hazara Singh does not state as to where those injuries allegedly given by Pritam Singh landed. Tega Singh was allegedly armed with a gandassi and if Tega Singh used the gandassi from the right and reverse side along with his son Joga Singh, five injuries on the person of Surta Singh can always be there. In these circumstances, the participation of Pritam Singh becomes a little bit doubtful. It cannot be ruled out that Surta singh and his son Hazara Singh might have implicated Pritam Singh so as to magnify the number of accused. Thus, I extend the benefit of doubt to Pritam Singh and acquit him of the charges framed against him. Moreover, Pritam Singh was a young boy of 19 years at the time of the trial. At the time of the occurrence, he must be less than 16 years of age and his participation on account of his tender age becomes even more doubtful.

The learned counsel for the appellants lastly submitted that he sentences awarded to Joga Singh and Tega Singh are excessive.

I am of the opinion that the ends of justice would suffice if the sentence of the appellant Joga Singh u/s 307, IPC is reduced from 7 years to 4 years and I order accordingly. The other sentences awarded to this appellant u/ss 324/34 and 323/34, IPC, stand confirmed and these sentences shall run concurrently with the substantive sentence awarded to him u/s 307, IPC. The sentences which have been awarded to Tega Singh u/ss 307/34, 324 and 323/34, IPC, are maintained.

The net result is that the appeal of Pritam Singh succeeds and he stands acquitted of the charges framed against him. So far as the appeal of Joga Singh is concerned, it is partly allowed in the terms as stated above. So far as the appeal of Tega Singh is concerned, it is dismissed in toto. Intimation about the decision of this appeal be sent to the CJM, Amritsar.