State of Punjab vs Harnek Singh

S.D. Bajaj, J.

After obtaining the M.L.R. and ruqa addressed to the police Dasti from Dr. M.L. Narang, Medical Officer, Primary Health Centre, Guru Har Sahai, Ajaib Singh, reported to ASI Kirpal Singh of Police Station, Mamdot within the precincts of Civil Hospital, Ferozepur "I am a resident of village Kohar Singh Wala and do cultivation. Today my brother Naib Singh and I were irrigating the paddy crop field known as Jhangri Wala where an engine has been installed. At about 8.30 A.M I was mending the water course and my brother Naib Singh turning the flow of water or a distance of about of 20/25 Karams from me. The field of Joginder Singh son of Kehar Singh, Jat resident of the village adjoins our fields. Joginder Singh and his son Harnek Singh @ Nek Singh were working in their field. Suddenly Joginder raised a lalkara saying, "Naib Singh, get ready," Hearing the lalkara my attention was diverted towards them. Within my sight Joginder who was holding a Kulkari in his hand started giving blows to my brother Naib Singh with his Kulhari, which hit him on his head towards the left i.e., one from sharp side and two blows from blunt side. My brother fell down and Harnek Singh @ Nek, who was holding a kassi gave a kassi blow to my brother while he was lying fallen which hit him from sharp side on the right side of his head and he gave one more blow which also hit from sharp side on his left foot. Thereafter Joginder Singh gave two Kulhari blows form reverse side to my brother, which hit him on both his legs near the ankles. Joginder Singh and Harnek Singh @ Nek Singh both father and son have caused injuries to my brother Naib Singh by conspiring together because about 7/8 days back from today, Joginder Singh and Harnek Singh were committing theft of water with pipes from canal minor Chawalla. It was our turn of water and we removed their pipe. I took my brother Naib Singh in an injured condition for treatment to Civil Hospital, Guru Har Sahai which is near our village. On receiving the information about it my elder brother Major Singh who is Sanitary Inspector and was on duty for getting insecticide speyed in the village also came after me on a scooter. He got admitted Naib Singh in Guru or Sahai Hospital for treatment, where the doctor gave him first aid and also the medico legal report. After that the doctor stated the condition of my brother serious and referred my brother to Civil Hospital, Feroxepur and also gave me medical ruqa and medical report which I have produced before you."

On being charged with the commission of offences under Sections 307/324 of the Indian Penal Code, respectively principal accused in Joginder Singh and Harnek Singh and in respect of charges under Sections 307/4 and 326/34 of the Indian Penal Code, the same two accused in reverse order pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated December 1, 1988 learned trial court acquitted Harnek Singh convicted accused Joginder Singh of the commission of offence under section 307 of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for a period of three years and to pay Rs. 1000/ as fine. In default of payment of fine, the convicted accused was ordered to undergo rigorous imprisonment for a further period of three years and to pay Rs. 1000/ as fine. In default of payment of fine, the convicted accused was ordered to undergo rigorous imprisonment for a further period of three months. The amount of fine on being realised was ordered to be paid to be injured as compensation for the injuries sustained by him at the hands of the accused.

Feeling aggrieved therefrom the State of Punjab has filed Criminal Appeal No. 28/DBA of 1989 against the acquittal of accused Harnek Singh, convicted accused Joginder Singh has filed Criminal Appeal No. 524SB of 1988 against his own conviction and the sentence awarded to him by the learned trial court while author of the FIR and real brother of the injured named Ajab Singh has filed Criminal Revision No 625 of 1989 against it. Since the two appeals as also the revision arise out of the same impugned judgment of the learned trial court and involve common questions of law and fact for determination, all these have been heard and are being disposed of together.

We have heard Shri Randhir Singh AAG, Punjab for the appellant State, Shri H.S. Gill, Sr, Advocate with Shri G.S. Gill Advocate for the convicted accused appellant. Shri M.L. Mirchea, Advocate for the complainant in the revision petition and perused the relevant material on record very carefully.

Imputation to the convicted accused Harnek Singh in the FIR is, "Harnek Singh @ Nek. who was holding a Kassi gave a Kassi blow to my brother while he was lying fallen which hit him from sharp side on the right side of his head and he gave one more blow which also hit from sharp side on his left foot" In para No. 12 of its impugned judgement learned trial court observed, " It was next submitted by the learned counsel for the accused that the ocular version is contrary to the medical evidence in as much as according to Ajaib Singh PW 4 Harnek Singh accused gave Kassi blow to Naib Singh PW 5 from the sharp side on the right side of his head and another blow was given by Harnek Singh accused on his left leg and similarly Naib Singh PW2 supported him by stating that the blow on the left leg was given from the sharp side. Injury No. 1 as detailed above is 2 1/2 cms x 1/4 upto bone on the sole of the left foot 2 cms behind the base of the big toe and injury No. 3 is 13cms, x 1/2 cm. Upto bone on the right side of the head. He further argued that if blows were given by Kassi,these would not be 21/2cms and 13 cms. as detailed above and this shows that Harnek Singh accused was wrongly implicated and I find force in this submission because if blow is given with Kassi to cause injuries as detailed above, it would not be of the above mentioned dimensions. Therefore, presence of Harnek Singh accused is doubtful" Injury attributed to the accused being not possible with Kassi the weapon of offence carried by him learned trial court rightly gave the benefit of doubt to accused Harnek Singh. The finding in this regard is affirmed. In this view of the matter the State appeal against his acquittal gets wholly benefit of any merit therein and is consequently dismissed.

Adverting now to the appeal filed by convict Joginder Singh, it must be observed that the occurrence is of broad day light, first preference of the victim party was to bring injured Naib Singh to the hospital and taking it into account First Information Report could not be held to have been lodged with delay and that the victim having been waylaid suddenly by the assailants at a distance of 25 karams, Ajaib Singh PW 4 even though armed with a Kassi could not possibly come to the rescue of his injured brother Naib Singh PW 4. It was held by their lordships of the Supreme Court in Ram Jag and others v. State of Uttar Pradesh, AIR 1974 SC 606 and Sarwan Singh and others v. State of Punjab, AIR 1976 SC 2301, " Mere delay in despatch of the FIR is not a circumstance which can throw out the prosecution case in its entirety.

The delay, if explained will not make the FIR doubtful.

Learned counsel for the appellant has urged that falsehood has been mixed with truth; that dispensary being available in village Kehar Singh Wala there was no occassion for the member of the complainant party to take Naib Singh injured to the Primary Health Centre at Guru Har Sahai Straightway that motive for the alleged sudden attack is not proved and the offence, if proved falls under Section 325 of the Indian Penal Code, and not under section 307 of the IPC. None of the arguments aforesaid has any merit therein.

MLR of the injured having been handed over to the police along with ruqa sent to them Dasti by the concerned doctor, there was no possibility left with the victim party to mix falsehood with truth. Then again the victim party did well in taking the victim (Naib Singh) to Primary Health Centre at Guru Har Sahai because real brother of the injured was Sanitary Inspector posted at that place who could get better attention and timely treatment for the injured therein. Even the doctor at Primary Health Centre, Guru Harsahai had to refer the injured to Civil Hospital, Ferozepur. Doctor and Pharmacist at Keha Singh Wala could not have been able to do anything better. Unnecessary time and labour would have been wasted by taking the injured to the village dispensary aforesaid.

In Gurcharan Singh and another v. State of Punjab v. State of Punjab, AIR 1956 SC 46; Shivaji Sahebrao Babode and another v. State of Maharashtra, AIR 1973 SC 2622; Nachhittar Singh v. State of Punjab, AIR 1975 SC 118 and Podda Narayana and others v. State of Andhra Pradesh, AIR 1975 SC 1252 their lordships of the Supreme Court observed, "When the positive evidence against the accused is clear, cogent and reliable the question of motive is of no importance.

Proof of motive satisfies the judicial mind about the likelihood of the authorship but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists.

The failure of the prosecution to establish the motive for the crime does not mean that the entire prosecution case has to be thrown overboard. It only casts a duty on the court to scrutinize the other evidence particularly of the eye witnesses with greater care. The High Court was fully conscious of the need for such caution and rightly observed :

"The absence of proof of motive has this effect only that the other evidence bearing on the guilt of the accused has to be very carefully examined". Indeed the High Court did so.

In view of the independent testimony, the question of motive becomes more or less academic. "In the present case also stamped injured victim Naib Singh PW 5 having himself deposed about the occurence, his real brother Ajaib Singh having supported him out and out and the deposition of both of them being in line with the expert medical opinion of Dr. M.L. Narang PW3 the absence of motive even if regarded as proved from the deposition of Dalip Kumar Patwari DW pales into insignificance and cannot be availed of the throw overboard the prosecution case set up against the accused.

14.The ratio of observations made in Sukhdev Singh v. The State of Punjab, Criminal APPEAL NO. 1489 of 1974 decided by K.S. Tiwana, J. as his lordship then was on January 18, 1979 Narinder Kumar v. State of Delhi.(sic) Chandigarh Law Reporter 180; Gurjant Singh v. State of Punjab, 1983(1) Recent Criminal Reports 319 , Sundershan Kumar v. State of Haryana, 1983(1) Recent Criminal Reports 379 and Sita Ram v. State of Haryana, 1983(2) Chandigarh Law Reporter 400 is on peculiar facts obtaining in those cases and is not attracted for application on the peculiar facts and circumstances obtaining in the present case to hold the injury inflicted by Joginder Singh accused on the person of Naib Singh injured is covered under Section 325 of the Indian Penal Code, and not under Section 307 of the Indian Penal Code as decided by the learned trial Court.

Dr. M.L. Narang PW 3 states, "I declared injury No. 6 as dangerous to life on the police application PP/1" Report Ex. PF reads. "Injury No 6 on the MLC report No. ML 44/87 could be dangerous to life." Injury No. 6 in the Medico Legal report Ex. P6 is described as under :

"A lacerated wound 9 cms. x 1/2 cms upto bone on the left side of the head. The wound started 1 cm behind injury No. 4 and ran backwards and downwards. Bleeding was present."

The Xray report brought on record on radiologist Shri S.K. Nain PW 2 about it reads, "Xray skull fracture of left parietal bone extending into the temporal region was seen (Corresponding to injury No.6 of ML 44/87 dated 1871987). Learned trial court rightly analysed the injury as dangerous to life. We are wholly in agreement with the reasoning offered by it in paragraphs 14 and 15 of its impugned judgment for reaching this conclusion and endorse it. Conviction of accused Joginder Singh under Section 307 of the Indian Penal Code is, therefore, upheld. Sentence awarded to him for it is also commensurate to the guilt an we see no reason to thinker within in present appeal. In result Criminal Appeal No. 524SB of 1988 as also Criminal Revision No. 625 of 1989 filed by Ajaib Singh are both dismissed.

JUDGMENT accordingly.