Nirmal Singh and Others vs State of Haryana

Virender Singh, J.—Nirmal Singh, his wife Smt.Darshan Kaur and his son Narinder Singh have been convicted and sentenced by learned Additional Sessions Judge, Ambala vide impugned judgment dated 11.12.1991 as under:-

Nirmal Singh and Smt.DarshanKaur U/s 323 IPC

Released on probation u/s 4 of the Probation of Offenders Act for a period of six months.

Narinder Singh U/s 307 IPC

To undergo RI for five years and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo Rl for three months.

Aggrieved by the impugned judgment of conviction and sentence, they have preferred the present appeal.

Harpal Singh son of Nirmal Singh was also booked along with the aforesaid three appellants. He, however, stands acquitted by the trial Court. No appeal has been filed by the State of Haryana against his acquittal. Rattan Singh another accused had died before framing of charge.

The present case was registered on the statement (Ex.PF) of Paramjit Singh P W-8 on 11.6.1989. The occurrence is of 10.6.1989. It is alleged in the said statement that his father Ratan Singh had consumed liquor and he was present in his house. He told his father to come inside the house. His brother Jasbir Singh PW-10 was also present outside the house. He also requested his father to come inside the house. It is then alleged that in the meantime, Nirmal Singh and Smt.Darshan Kaur appellants came there and started beating his brother Jasbir Singh. Narinder Singh son of Nirmal Singh appellant also came there armed with a hockey and Paramjit Singh also reached the spot to rescue his brother Jasbir Singh. The accused started giving him beatings. On noise (raula) raised by them, Ajit Singh and Chhotu Ram came there and rescued him from the clutches of the accused. As he had received injuries, he was removed to Civil Hospital, Ambala City by his brother Jasbir Singh. It is then alleged that Nirmal Singh appellant was in fact having iron rod in his hand and inflicted the injury on his head whereas Narinder Singh appellant was armed with a hockey and gave another blow on his head. Paramjit Singh injured was examined by the concerned doctor of Civil Hospital, Ambala City. The present appellants were consequently arrested in this case. Hockey and iron rods were allegedly produced by them. The same were taken into possession. After the completion of the investigation, they were challaned to face trial.

The present appellants and their co-accused Harpal Singh were consequently charged u/s 307 and 323 IPC.

The learned trial Court after appreciating the entire evidence has acquitted Harpal Singh whereas Nirmal Singh, Smt.Darshan Kaur and Narinder Singh were convicted and sentenced as indicated above.

I have heard Mrs.Kiran Bala Jain, learned counsel for the appellants and Mr.S.S.Brar, learned Deputy Advocate General, Haryana. With their assistance, I have also gone through the entire records minutely.

The learned counsel for the appellants has mainly argued for Narinder Singh appellant who stands convicted u/s 307 IPC. Dwelling upon her arguments, she contended that there is no evidence on the file which would bring the case of the prosecution qua Narinder Singh appellant within the mischief of Section 307 IPC. In this regard, she has drawn my attention to the relevant medical evidence produced by the prosecution. The learned counsel contends that the prosecution is relying on the statement of Dr.B.Indira Devi, Assistant Professor, Neurosurgery, PGI, Chandigarh who was examined as CW-2 and she in fact has given her opinion Ex.PK/1 regarding the injury on the head of Paramjit Singh to the effect that the said injury could have been the life threatening (dangerous to life). She then contends that this witness has given another writing to the effect that since the patient was referred to PGI, the expert opinion be taken from the PGI, Chandigarh but no expert opinion has been produced on record to show that in fact injury No. 1 on the head of Paramjit Singh was sufficient to cause death in the ordinary course of nature but for timely aid. According to the learned counsel, the opinion to the effect that the injury could have been life threatening (dangerous to life) Would not bring the case within the ambit of Section 307 IPC at all. She then contends that even the doctor who had initially examined Paramjit Singh had also not been produced in the Court and as such the MLR is not proved on the file. No X-ray report has been produced on the file. On account of the aforesaid weakness in the case of prosecution, the learned counsel contends that the present case would not even attract Section 325 IPC for want of medical evidence.

On the basis of the aforesaid submissions, the learned counsel for the appellants contends that the conviction of Narinder Singh appellant as recorded by the trial Court u/s 307 IPC is unsustainable in the eye of law and he at the most be convicted u/s 323 IPC only.

Otherwise attacking the case of the prosecution, the learned counsel contends that the case of the prosecution does not appear to be probable on the face of it and conviction of Nirmal Singh and Smt.Darshan Kaur appellants is also bad.

The other arguments advanced by the learned counsel for the appellants is that in case the conviction of appellant Narinder Singh is diluted to Section 323 IPC, then in that eventuality he deserves the concession of being released on probation. Developing her arguments, the learned counsel further contends that Narinder Singh has also remained in (custody) for about one month. He was of the age of 20/21 years at the time of occurrence which is of year 1989. Another mitigating circumstance, which has been developed by the learned counsel qua Narinder Singh is that he had received injuries in between which has resulted into 96% permanent physical disability. In this regard she has produced on record medical certificate issued by Civil Surgeon, Ambala.

On the basis of the aforesaid submissions, the learned counsel prays for lenient view towards the quantum of sentence qua Narinder Singh appellant.

Opposing the submissions made by the learned counsel for the appellants, the learned State counsel contends that although the medical evidence is lacking on certain aspects yet from the statement of Paramjit Singh, it is evident that Narinder Singh appellant was armed with a hockey and gave a blow on his head causing lacerated wound on the left frontal region covering the parietal area as well. He then contends that even if, there is no expert opinion on the file, the opinion Ex.PK/1 given by Dr.B.Indira Devi CW2 cannot be ignored as she has categorically stated that the injury was dangerous to life.

After hearing the respective contentions of learned counsel for both the sides and rescanning the entire record once again minutely, I find force in the submissions made by the learned counsel for the appellants.

The main controversy involved in this case is as to whether Section 307 IPC is attracted or not? If not then what offence?

Admittedly, the MLR of Paramjit Singh injured is not proved on the file. This is also an admitted fact that no X-ray report has been produced by the prosecution. After the statements of the accused were recorded u/s 313 Cr.P.C. an application was moved by the State u/s 311 Cr.P.C. for producing additional evidence which was allowed by the learned trial Court and as such statements of two witnesses were recorded. SI Kallu Ram was examined as CW1 whereas one Dr.B. Indira Devi was examined as CW2. She proved her opinion Ex.PK/1 where she has opined that injury on the person of Paramjit Singh could have been life threatening (dangerous to life). In her cross-examination she has stated that she did not know as to whether patient was ever operated upon in PGI or not. She had not brought the entire medical record of injured Paramjit Singh. Perusal of Ex.PK/1 indicates that she has given another noting that the expert opinion be sought from the concerned doctor of PGI. Admittedly it is not clear as to whether any opinion was sought from the concerned doctor or not. The fact remains that the doctor had in fact treated Paramjit Singh injured has not been produced by the prosecution. No bed head ticket (medical record) of the patient has been produced by the prosecution.

In my considered view, opinion Ex.PK/1 given by CW2 Dr.B.Indira Devi would not bring the case of the prosecution within the mischief of Section 307 IPC at all. My view is fortified by the judgment of this Court rendered in Sampuran Singh v. State of Haryana, 1999 (1) RCR 121 (P&H). In the aforesaid case, injured had suffered depressed fracture on his skull. The doctor who had medically examined the witness was not produced in the Court to opine whether the fracture was dangerous to life or not. The offence was reduced to Section 325 IPC from Section 307 IPC.

In Dhan Raj v. Rajesh, 1994 (2) RCR 79 (P&H), the accused was convicted u/s 307 IPC for inflicting injuries with knife, lathi and blunt side of Kulhari. The opinion of the doctor was that the injuries could have proved dangerous to life. However, there was no fracture underneath the head injury. It was observed by this court that Section 307 IPC is not made out.

As a sequel to the aforesaid discussion, I do not feel hesitant in holding that the conviction of Narinder Singh appellant u/s 307 IPC as recorded by the trial Court is unsustainable and he at the most be convicted u/s 323 IPC. Consequently, his conviction u/s 307 IPC is set aside and instead he is convicted u/s 323 IPC.

I also find force in the submissions made by the learned counsel for the appellants with regard to quantum of sentence.

Taking into consideration all the facts and circumstances of the present case and the4 fact that appellant Narinder Singh is suffering from 96% permanent disability, the ends of justice would be adequately met if the appellant Narinder Singh is ordered to be released on probation instead of awarding substantive sentence. Accordingly, it is directed that Narinder Singh appellant shall be released on probation of good conduct on his furnishing personal bonds in the sum of Rs.20,000/- with one surety each in the like amount to keep peace and be of good behaviour for a period of three months and to receive the sentence as and when called upon to do so during the said period.

It is however made clear that releasing of the appellant on probation would be without the supervision of Probation Officer. The requisite bonds shall be furnished before the trial Court within one month after the receipt of certified copy of the order.

The fine already awarded shall be now treated as cost of the proceedings u/s 5(1)(b) of the Act. Order accordingly.

So far as Nirmal Singh and Smt.Darshan Kaur appellants are concerned, I uphold their conviction u/s 323 IPC. Since they have been released on probation, no further order is required to be passed with regard to quantum of sentence.

Consequently the present appeal is partly allowed. Appellant Narinder Singh stands convicted u/s 323 IPC with the modification in the quantum of sentence as indicated above. Appeal of Nirmal Singh and Smt.Darshan Kaur appellants stands dismissed.