Roshan vs Babu Khan

V.M. Jain, J.

This judgment shall dispose of Criminal Revision No. 568 of 1988 Babu Khan and others v. State of Punjab and Criminal Revision No. 741 of 1988 Roshan v. Babu Khan and others both filed against the same judgment and order dated 19.1.1988 passed by the Judicial Magistrate Ist Class, Rajpura and judgment dated 7.6.1988 passed by the Additional Sessions Judge, Patiala. Criminal Revision No. 568 of 1988 has been filed by the accused against the conviction of accused petitioners under Sections 326, 324/149 and 148 of accused petitioners Balbir, Babu and Amarjit and under Sections 324, 326/149, 324/149 and 148 IPC of accused petitioners Sant and Saber and sentencing them to undergo various imprisonments vide judgment and order dated 19.1.1988 passed by the JMIC, Rajpura and the judgment dated 7.6.1988 passed by the Additional Sessions Judge, Patiala vide which the conviction and sentence awarded to the accused petitioners were upheld and their appeal was dismissed. Criminal Revision No. 741 of 1988 has been filed by Roshan Khan, complainant for the enhancement of the sentence awarded to the various accused in this case.

The facts in brief are that Roshan Khan, complainant made a complaint to the police that on 11.1.1985 at about 7.00 a.m. he was coming to his house from the house of his father, when accused petitioners Babu Khan and Amarjit came from behind and caught hold of him while accused Sant and Saber Khan armed with a gandasi each and accused Balbir Khan armed with Kirpan attacked him with their respective weapons and caused him various injuries. It was alleged that Sant gave him gandasi blow on his thumb while Saber Khan gave him two gandasi blows on his head while Balbir Khan gave a kirpan blow on his right hand. It was alleged that on hearing the alarm raised by him, Ujagar Singh and Didar Singh came to the spot and on seeing them all the accused ran away from the spot with their respective weapons after causing him injuries. It was alleged that the cause of incident was a pending civil litigation regarding some immovable property. The said statement of Roshan Khan complainant was recorded by the police in the daily diary register. Roshan Khan, complainant was medicolegally examined on 11.1.1985 itself and it was found that he had sustained as many as 4 injuries on his person which he had received within a duration of 24 hours with a sharp edged weapon and all these injuries were kept under observation. Injury No. 3 was declared as grievous due to limitation of movement of right thumb which was a permanent disability while other injuries were declared as simple. Thereafter the present FIR under Sections 326/148/149 IPC was registered in police station on 29.1.1985. Case was investigated by the police and the accused were arrested in this case and after the completion of the investigation the accused were challaned. The prosecution led its evidence. Thereafter the statements of the accused under Section 313 Cr.P.C. were recorded in which they denied the prosecution allegations against them and said that they were innocent and had been falsely implicated in this case. However, the accused did not lead any evidence in their defence.

The learned Magistrate after hearing both sides and after perusing the record convicted and sentenced the accused petitioners as referred to above vide judgment and order dated 19.1.1988. The appeal filed by the accused was also dismissed by the learned Additional Sessions Judge vide judgment dated 7.6.1988. Aggrieved against their conviction and sentence by both the Courts below, the accused have filed the present revision petition in this Court.

I have heard the learned counsel for the parties and have gone through the record carefully.

The learned counsel for the accused petitioners submitted before me that there was delay in lodging the FIR. However, I do not find any force in this submission of the learned counsel for the petitioners. As referred to above, the occurrence had taken place on 11.1.1985 at about 7.00 a.m. It was on the same day that complainant made the statement before the police and the said statement was recorded by the police in the daily diary register on 11.1.1985 at 8.45 a.m. If the police did not register the formal FIR at that time and waited for the MLR it could not be said that there was any delay in lodging the FIR. The delay in recording the formal FIR, could not be made basis for throwing away the case of the prosecution especially when in the statement made before the police immediately after the occurrence the complainant had given all the details with regard to the manner in which the present occurrence had taken place.

It was then submitted before me by the learned counsel for the petitioners that no offence under Section 326 IPC was made out. It was submitted that there was no bone injury on the person of injured and injury No. 3 was declared grievous only on the ground that their was limitation of right thumb which was a permanent disability. Reliance was placed on AIR 1980 SC 106, Kailash Parshad Kanodia v. State of Bihar.

There is considerable force in this submission of the learned counsel for the accused petitioner. As per the MLR, injury No. 3 on the person of Roshan Khan was an incised wound 8 cm x 5 cm bone deep on the outer and lower part of right forearm extending towards the back of the right hand and it was advised xray. Exhibit PB is the xray report showing that injury No. 3 which was kept under observation was declared as grievous due to limitation of movement of right thumb as it was a permanent disability while other injuries were declared as simple. Dr. D.R. Gupta, who had appeared in witness box as PW2 and had proved the xray report, Exhibit PB1 nowhere stated that limitation of movement of right thumb on the person of Roshan Khan was on account of injury No. 3 on his person. He had not given any material on the record to come to the conclusion that the limitation of movement of the right thumb on the person of Roshan Khan was a permanent disability. Mere stating in his report Exhibit PB that injury No. 3 was grievous due to limitation of movement of right thumb which was a permanent disability, in my opinion, would not be sufficient to hold that in fact Roshan Khan, complainant had suffered any grievous injury. Injury No. 3 on the person of Roshan Khan can be declared as grievous only if it could be said that there was any destruction or permanent impairing of the powers of any member or joint. As referred to above, the occurrence had taken place on 11.1.1985 while the report of the Dr. Gupta, Exhibit PB is dated 19.1.1985. In such a short period the doctor could not have declared injury No. 3 as grievous by opinion that it was a permanent disability. PW2 Dr. D.R. Gupta admitted during crossexamination that no bone injury was detected in the xray. He also admitted that permanent disability was not recorded in the xray report or the MLR. After examining the injured in the Court, he said that thumb was not working but fingers were working and that right thumb had been wasted. This opinion given by the Doctor after examining the patient in the Court would not be sufficient to hold that the injured had suffered any grievous injury especially when the doctor is silent that limitation of movement of right thumb was due to injury No. 3 suffered by the injured on the outer and lower part of the right fore arm extending towards the back of the right hand. Furthermore, even PW1 Roshan Khan while appearing in the witness box has nowhere stated that as a result of injuries suffered by him in the said occurrence there was any limitation in the movement of his right thumb. In AIR 1980 SC 106 (supra) it appeared from the medical evidence that the injured had not sustained any grievous injury inasmuch as he had not received any serious injury on any vital part of the body and the doctor admitted that he did not find any fracture of a serious nature. Under these circumstances it was held by the Hon''ble Supreme Court that the charge under Section 326 IPC must necessarily fail.

In view of my discussion above, I hold that the charge under Section 326 IPC is not made out against any of the accused in this case. Accordingly all the accused petitioners are acquitted of the charges under Section 326 and or 326/149 IPC.

Once the accused petitioners have been acquitted of the charges under Section 326 and/or 326/149 the only other charges left in this case are under Section 324 and/or 324/149 IPC besides the offence under Section 148 IPC. The learned counsel for the petitioner has not challenged these offences. However, he has prayed for leniency on the question of sentence. After hearing both sides and after perusing the record, in my opinion, ends of justice would be fully met in case the sentences awarded to the accused petitioners for the offences under Section 324 and/or 324/149 and the offence under Section 148 IPC are reduced to the period already undergone by them. I order accordingly. The sentences imposed upon the petitioners are reduced to the period already undergone by them besides the fine already imposed upon them.

Criminal Revision No. 568/1988 stands disposed of accordingly. So far as Criminal Revision No. 741 of 1988 is concerned the same is dismissed being without any merit.

Revision dismissed.