Sukhdev Singh and others vs The State of Punjab

Paramjeet Singh, J.—This order will dispose of Criminal Appeal No. 180-SB of 2000 titled ''Sukhdev Singh and others vs. The State of Punjab'' and Criminal Appeal No. 462-SB of 2000 titled ''Sukhdev Singh vs. The State of Punjab''. In Criminal Appeal No. 180-SB of 2000 appellants have been convicted for committing an offence under Sections 307/325/323/34 IPC and in Criminal Appeal No. 462-SB of 2000 appellant has been convicted for committing an offence u/s 29 of the Arms Act, 1959. Both cases have been decided by a common judgment dated 3.2.2000 by the learned Additional Sessions Judge, Mansa, and the facts arise out of the same incident in both cases and as such have been noticed in the impugned judgment dated 3.2.2000 as also in this order.

Crl. Appeal No. 180-SB of 2000 is directed against the order dated 3.2.2000 passed by learned Additional Sessions Judge, Mansa, in case FIR No. 83 dated 30.9.1995 under Sections 307/325/323/34 IPC, registered at Police Station Sardulgarh, whereby appellant-accused Gurcharan Singh has been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month for the offence punishable u/s 307 IPC. Appellants-accused Swarn Singh and Sukhdev Singh have been sentenced to undergo rigorous imprisonment for a period of 2 1/2 years each and to pay a fine of Rs. 1000/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each for the offence punishable u/s 307 read with Section 34 IPC. Appellant-accused Swarn Singh has further been sentenced to undergo rigorous imprisonment for a period of 1 1/2 years and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month for the offence punishable u/s 325 IPC whereas appellants-accused Sukhdev Singh and Gurcharn Singh have further been sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs. 500/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one month each for the offence punishable u/s 325 read with Section 34 IPC. Appellants-accused Sukhdev Singh and Swarn Singh have further been sentenced to undergo rigorous imprisonment for nine months each and to pay a fine of Rs. 500/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one month each for the offence punishable u/s 323 IPC. Gurcharn Singh has further been sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month for the offence punishable u/s 323 read with Section 34 IPC. In Crl. Appeal No. 462-SB of 2000, appellant-accused Sukhdev Singh has further been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month for the offence punishable u/s 29 of the Arms Act, 1959. All the substantive sentences have been ordered to run concurrently.

Brief facts of the present case are that on 30.9.1995 at about 5.00 p.m. in the area of village Ranjitgarh Bandran, Gurcharan Singh accused in furtherance of common intention of his co-accused, namely, Sukhdev Singh and Swarn Singh caused grievous hurt to Harbeant Singh knowing or having reason to believe that if by that act he had caused his death, he would have been guilty of murder. Appellant-accused Swarn Singh and Sukhdev Singh facilitated the commission of crime. Swarn Singh appellant-accused in furtherance of common intention of his co-accused voluntarily caused grievous hurt on the person of Hargobind Singh by means of blunt weapon, whereas his co-accused Sukhdev Singh and Gurcharn Singh facilitated the commission of crime. Sukhdev Singh and Swarn Singh in furtherance of their common intention voluntarily caused simple hurt on the person of Hargobind Singh Gurdev Singh and Gurcharn Singh co-accused facilitated the commission of crime and Gurcharn Singh used licenced gun of his father Sukhdev Singh for illegal purpose after having been delivered the same to him by the licencee. On 30.9.1995 at about 5.00 p.m. Hargobind Singh and others were irrgating their fields by tubewell water, which was going through the canal water channel. Sukhdev Singh son of Kunda Singh and his son Swarn Singh, after taking turn of water of somebody else brought their water through the same water channel. On seeing this, Hargobind Singh asked Sukhdev Singh that he should stop flowing their water through the same water channel, through which he was irrigating his fields. Hargobind Singh protested to Sukhdev Singh for bringing water through the same water channel as he and his brothers were irrigating their fields with tubewell water. On this, Sukhdev Singh and Swarn Singh started quarreling with Harbeant Singh, Gurdev Singh and Hargobind Singh. Thereafter, Sukhdev Singh and Swarn left for their house. Hargobind Singh, Gurdev Singh and Harbeant Singh after irrigating their fields were returning to their house in the village. When they reached on the metalled road leading to their house in front of the door of Sukhdev Singh, Sukhdev Singh armed with gandasa was found standing in front of his house. Sukhdev Singh challenged them and also abused them in the name of their sister. Sukhdev Singh then gave a gandasa blow upon the head of Harbeant Singh, who was going ahead of Hargobind Singh and Gurdev Singh. On receipt of injury, Harbeant Singh retreated and when he was in the process of retreat, Gurcharn Singh son of Sukhdev Singh fired a shot from 12 bore licenced gun of his father Sukhdev Singh, which hit the left arm and abdomen of Harbeant Singh. On receipt of firearm injury, Harbeant Singh fell down. When Harbeant Singh fell down, Sukhdev Singh and his son Swarn Singh with their gandasas came forward to cause further injuries. Gurcharn Singh went inside his house with 12 bore gun. Hargobind Singh and Gurdev Singh stepped forward to save their brother Harbeant Singh when Swarn Singh gave a gandasa blow which hit his little finger and the left hand. Sukhdev Singh gave a gandasa blow on the head of Gurdev Singh. Hargobind Singh and Gurdev Singh then raised alarm, which attracted Kirpal Singh son of Gurdit Singh. When he challenged the accused, Sukhdev Singh and Swarn Singh with their respective weapons decamped from the spot. Hargobind Singh brought tractor trolley from his house and put his brother Harbeant Singh therein. Hargobind Singh and Gurdev Singh then took Harbeant Singh to Civil Hospital, Sardulgarh, in the tractor trolley, driven by Kirpal Singh. First aid was provided by the doctor at Civil Hospital, Sardulgarh, and Harbeant Singh was referred to Civil Hospital, Mansa. Hargobind Singh and Gurdev Singh were, however, admitted in the Civil Hospital, Sardulgarh, and were medico-legally examined. Intimation of admission of Hargobind Singh and Gurdev Singh was not sent by the doctor of Civil Hospital, Sardulgarh. Doctor sent the intimation to the SHO, P.S. Sardulgarh, on 30.9.1995 at 7.15 p.m. that Harbeant Singh with firearm injuries was lying in the hospital. Gulzar Singh ASI went to the Civil Hospital, Sardulgarh, and moved an application Ex. P.C. seeking opinion of the doctor as to whether Hargobind Singh and Gurdev Singh were fit to make statements. The doctor vide endorsement Ex. P.C/1 declared both of them to make statements. Gulzar Singh ASI moved another application Ex. PH to know whether Harbeant Singh, who was admitted with firearm injuries was fit to make statement. The doctor vide endorsement Ex. PH/1 stated that he had been referred to Civil Hospital, Mansa, where Harbeant Singh was referred to DMC, Ludhiana, where he was admitted at 1.40 p.m. on 1.10.1995. On the statement of Hargobind Singh Ex. P.E., FIR Ex. PE/2 was registered. Copy of the FIR was received by the Illaqa Magistrate on 1.10.1995 at 12.50 p.m. Thereafter, the statement of Gurdev Singh was recorded by Gulzar Singh. The site was inspected and an empty of 12 bore double barrel gun was lifted from the spot, which was put into tin box, which was sealed with the seal bearing impression GS belonging to Gulzar Singh ASI and was taken into possession vide Ex. PM. Memo was attested by Kirpal Singh and Jaspal Singh. The blood stained earth and simple earth were lifted from the spot and were put in a separate tin boxes and converted into parcels and were sealed with the seal bearing impression G.S. and thereafter the same were taken into possession vide memo Ex. PN. Ex. PN was attested by the aforesaid witnesses. On 2.10.1995, Gulzar Singh ASI along with a police official went to Dayanand Medical College and Hospital, Ludhiana, for recording the statement of Harbeant singh. An application Ex. PO was moved before the doctor seeking his opinion as to whether Harbeant Singh was fit to make statement. The doctor vide endorsement Ex. PO/1 declared Harbeant Singh fit to make statement. Thereafter, statement of Harbeant Singh was recorded. Harbeant Singh produced niker (underwear) P-5 and parna P-6 stained with blood before ASI Gulzar Singh. Underwear was having wholes of pellets. Parna and niker were converted into parcel and sealed with the seal bearing impression GS and taken into possession vide memo Ex. PG, attested by Harbeant Singh and Kashmiri Lal. The doctor then produced copy of MLR of Harbeant Singh before ASI Gulzar Singh. The ASI Gulzar Singh went to the Incharge Security Guard DMC Ludhiana. He produced before him the glass bottle containing the pellets. It was sealed with the seal of the doctor and same was taken into possession vide memo Ex. PQ attested by Kashmiri Lal Constable. Statements of the witnesses were recorded on various stages of the investigation. Case property was deposited with the MHC. After completion of the investigation, accused were challaned under Sections 307, 325, 323, 34 IPC and under Sections 29, 30 of the Arms Act, 1959.

After investigation, challan was presented before the Magistrate. Copies of the documents were supplied to the accused party. After the Magistrate committed the case to the Court of Sessions, charges u/s 307 IPC against Gurcharn Singh, under Sections 307/34 IPC against Sukhdev Singh and Swarn Singh, u/s 325 against Swarn Singh, u/s 325/34 against Sukhdev Singh and Gurcharn Singh, u/s 323 IPC against Sukhdev Singh and Swarn Singh and u/s 323/34 IPC against Gurcharn Singh and u/s 29 and 30 of the Arms Act against Sukhdev Singh accused, were framed by the Court of Sh. R.M. Gupta, learned Additional Sessions Judge, Mansa.

Prosecution in support of its case, examined 10 witnesses. Dr. R.K. Kaushal PW1 medically examined Hargobind Singh son of Dal Singh resident of Ranjitgarh Bandran on 30.9.1995 at 8.45 p.m. and found following injuries:

Lacerated wound below the nail bed of right little finger. The wound was U shaped of 1/2 x 1 1/2 cms. Bleeding was present. Nail is disposed. X-ray advised.

Tenderness on the first phalanx of left index finger. Swelling present. X-ray advised.

On the same day same doctor examined Gurdev Singh son of Dal Singh aged 35 years, resident of Ranjitgarh Bandran and found the following injuries in his person:

2x1 cms lacerated wound of U shaped bleeding was present 15 cm above of left ear on left parietal bone. The concavity is on the back side. X-ray advised.

Dr. Harpal Singh Salhi, Senior Resident, Department of Orthopaetic, Dayanand Medical College and Hospital, Ludhiana, PW10 proved Ex. PT record of Harbeant Singh son of Dal Singh. The doctor stated that Harbeant Singh was admitted in the DMC on 1.10.1995 at 1.50 p.m. He sent intimation Ex. PAA to the Police Station Sharaba Nagar, Ludhiana, regarding the admission of Harbeant Singh on 2.10.1995 at 1.00 p.m. The doctor medically examined Harbeant Singh and found following injuries:

8"x4" contused lacerated wound on posterior aspect of elbow and upper 1/2 of forearm. Elbow joint exposed.

Upper 1/2 of ulna exposed in the wound with fracture of upper mid 3rd ulna visible.

Fracture clecranon with multiple bone pieces muscles lacerated and contused upper and radius lying exposed in the wound. Active bleed was present. Radial puse present. Neurological status could not be assessed properly.

Left Lower limb

Multiple gun shot wounds of pellets on lateral aspect of upper 3rd thigh blackening around the margins present singing of hair. Active bleed present.

Abdomen

Two wounds of 2 milimeter diameter on lateral aspect of anterior abdominal wall.

Head

2" contused lacerated wound bone deep 4" from superior orbital margin.

2" contused lacerated wound (bonedeep) on the right side imparietal area.

2" contused lacerated wound bonedeep on the left side in posterior parietal area.

2" nutured contused lacerated wound on the left front parietal area.

Injury No. 4 in the abdomen was the result of firearm. The abdomen injuries were declared dangerous to life. The duration of the injuries was about 6 to 8 hours. Dr. Harinderpal Singh PW5 conducted X-ray examination of Hargobind Singh son of Dal Singh. The skiagram showed fracture of terminal phalanx of right little finger of Hargobind Singh and injury No. 2 was declared as grievous and injury No. 1 was declared as simple in nature. He proved skiagrams Ex. P1 and P2 and report Ex. PJ. Dr. Harinderpal Singh also conducted X-ray examination of skull of Gurdev Singh son of Dal Singh. The skiagram did not show any fracture. He proved Ex. P3 the skiagram and report Ex. PK in this regard.

Hargobind Singh PW2 complainant-cum-injured, Harbeant Singh PW3 and Gurdev Singh PW4 both injured, supported the case of the prosecution.

In addition to oral evidence, prosecution tendered into evidence Ex. PX report of the Chemical Examiner, Ex. PY report of the FSL and Ex. PZ report of the Serologist and closed its evidence.

After recording the evidence of the prosecution, statements of accused u/s 313 Cr.P.C. were recorded. Appellant-accused Sukhdev Singh in his statement u/s 313 Cr.P.C. had taken the stand that on the day of occurrence, Hargobind Singh armed with kasia, Harbeant Singh armed with gandasa, Gurdev Singh armed with kasia, Maghar Singh armed with khunda and Matate Singh armed with dang came to his house. Harbeant Singh gave a gandasa blow on his right arm. Hargobind Singh gave kasia blow on his left shoulder. Hargobind Singh and his companions caused more injuries to him and on the person of his son Gurcharn Singh. Sukhdev Singh picked up his licenced gun from his house and fired a shot to scare away them in his self-defence and in defence of Gurcharn Singh. It was further stated that MLRs of Hargobind Singh and Gurdev Singh were fabricated.

After recording of the statements u/s 313 Cr.P.C. of the appellants-accused, they were afforded opportunity to lead defence evidence. Accused examined Sukhdev Singh one of the accused as DW1, Kamal Kumar DW2 Photographer and he tendered photographs Ex. D15 to D19 and negatives Ex. D20 to D24.

The trial Court after hearing the learned Public Prosecutor for the State and learned defence counsel, convicted the appellants as aforesaid.

Learned Counsel for the petitioners contended that this is a case of cross-version. The injuries have been caused by the complainant party to the accused party also. There are eight injuries on the person of Sukhdev Singh and two injuries on the person of Gurcharn Singh. One injury on the person of Sukhdev Singh was caused by Harbeant Singh with kasia and two injuries on the person of Gurcharn Singh by Gurdev Singh with kasia are stated to be caused in their self-defence and in defence of Hargobind Singh.

Both the parties are taking the plea of self-defence. In these circumstances, which is the aggressor party is to be determined.

The genesis of the dispute is taking of water through a sanctioned watercourse. The prosecution version has been unfolded by Hargobid Singh PW2 complainant-cum-injured. It has come in his evidence that they were irrigating their fields in the area of village Ranjitgarh Bandran through canal water channel with tubewell water. The accused party also brought their water. When complainant party objected to it, there was altercation. The matter was settled. The accused left for their house. Hargobind Singh and his brothers after irrigating their fields left for their house. When they reached on the metalled road in front of the house of Sukhdev Singh, Sukhdev Singh raised a lalkara and abused in the name of their sister. On this, Sukhdev Singh gave a gandasa blow on the head of Harbeant Singh. When Harbeant Singh turned back, Gurcharn Singh fired a shot from the gun, which hit Harbeant Singh on left arm and stomach. The said gun is licenced gun of Sukhdev Singh accused. As a result of gun shot injury, Harbeant Singh fell down. Sukhdev Singh and Swarn Singh, who were armed with gandasas, caused further injuries on the person of Harbeant Singh. Sukhdev Singh also gave a gandasa blow which hit the head of Gurdev Singh. It has come in the statement of Hargobind Singh that he was standing near Harbeant Singh. He also suffered injuries. When he (Hargobind Singh) came forward, Swarn Singh gave a gandasa blow, which hit on the little finger of his right hand and the upper side of his left hand. The evidence of injured Hargobind Singh PW2 is corroborated by injured Harbeant Singh PW3 and Gurdev Singh PW4. All the witnesses are injured witnesses. The ocular version stands corroborated by medical evidence of Dr. R.K. Kaushal PW1, Dr. H.S. Salhi PW10 and Dr. Harinder Pal Singh PW5, who conducted the X-ray examination. Further corroboration of the ocular and medical evidence is proved from the recovery of gun from Gurcharn Singh and gandasas from Sukhdev Singh and Swarn Singh. The Forensic Science Laboratory report Ex. PY proves that one 12 bore K.F. Special Cartridge contained in parcel A, had been fired from the left barrel of 12 bore DBBL gun No. 38554, which is the weapon of offence. Occurrence is further corroborated by medical examination report Ex. PX, which shows the presence of blood on the nicker (underwear) and parna (headscarf) of Harbeant Singh. Further corroboration is provided through Ex. PZ report of the Serologist, which found the presence of human blood on the nicker (underwear) and parna (headscarf) belonging to Harbeant Singh. The prosecution story is further corroborated by the fact that the underwear of Harbeant Singh had holes of pellets, which was taken into possession by the police during investigation. In view of this the said injury caused by the accused is dangerous to life besides the simple injuries on the person of Harbeant Singh, Hargobind Singh and Gurdev Singh. Injuries on the person of the accused are also admitted but they are not explained in the FIR.

Sukhdev Singh DW1 has proved that injuries were caused on his person by Hargobind Singh, Harbeant Singh and Gurdev Singh, Maghar Singh and Mastate Singh during the course of same occurrence. As many as eight injuries are on the person of Sukhdev Singh, out of which two are grievous and remaining are simple. Two injuries are on the person of Gurcharn Singh, which are simple in nature. This fact is proved from the statement of Dr. R.K. Kaushal PW1. Although, the appellants-accused have not specifically admitted that they have caused injuries on the person of Harbeant Singh, Hargobind Singh and Gurdev Singh, however, from the evidence on record it becomes clear that the accused have set up a plea of self-defence.

In such circumstances, it is essential to determine which party is aggressor. For determining which party is aggressor, following points need to be taken into consideration:

i) What was the motive for occurrence?

ii) The place where the occurrence took place.

iii) The nature of the injuries on the person of the parties i.e. the complainant and the accused.

iv) The number of injuries on the person of the omplainant and the accused.

v) Which party went to the hospital first in point of time for the purpose of medical examination?

vi) Which party lodged the FIR in the first instance?

In the light of these points, this Court is of the view that the accused party caused injuries on the person of Hargobind Singh, Harbeant Singh and Gurdev Singh. The evidence is to the effect that Hargobind Singh PW2, Harbeant Singh PW3 and Gurdev Singh PW4 were irrigating their fields through canal water channel with their tubewell water. Sukhdev Singh and Swarn Singh appellants-accused brought their water of canal and tried to flow the same through the same water channel. There was an altercation between the parties. Ultimately, appellants-accused Sukhdev Singh and Swarn Singh returned to their house without irrigating their fields and whereas Hargobind Singh, Harbeant Singh and Gurdev Singh continued to irrigate their fields. Subsequent act has occurred when Hargobind Singh, Harbeant Singh and Gurdev Singh were returning from their fields to their house and when they reached, through the metalled road, in front of the house of the appellants-accused i.e. the place where the occurrence took place. The prosecution evidence is to the effect that Sukhdev Singh and Swarn Singh were disallowed their turn of water through sanctioned water channel, which was being used by the complainant party for irrigating their fields through tubewell water. This clearly proves that the accused party had grudge against the complainant party, as they were stopped from taking the water through the sanctioned water channel. It is in evidence that the accused party did not irrigate their fields and returned to their house. The evidence is to the effect that when the complainant party reached near the house of the appellants-accused, Sukhdev Singh raised a lalkara and caused injuries to the complainant party. It clearly proves the motive that the accused party had grudge for not allowing them to flow their water through sanctioned water channel. It needs to be mentioned here that the case of the accused party is that they had taken turn of canal water from one Mukhtiar Singh, which has not been produced as a defence witness. From the evidence on record, it is proved that the accused with a view to nourish their grudge, which they were having against Hargobind Singh, Harbeant Singh and Gurdev Singh, had caused injuries on their person.

The next point is with regard to the fact which party went to the hospital first in point of time for medico-legal examination. The evidence on record clearly proves that the complainant party reached PHC Sardulgarh first in point of time. They did not lose time to go to the hospital to get the first aid so as to further avoid danger to the life of the injured specifically Harbeant Singh, who had suffered gun shot injuries. The occurrence took place on 30.9.1995 at about 6.00 p.m. From the place of occurrence, Civil Hospital, Sardulgarh is about 5 kms. The arrival time of injured Harbeant Singh, Hargobind Singh and Gurdev Singh at PHC Sardulgarh is 7.15 p.m. and the MLR indicated that they had been attended immediately. The intimation was sent by the Medical Officer to the Police Station mentioned in the MLR of Hargobind Singh and Gurdev Singh. The medical examination of Hargobind Singh and Gurdev Singh was conducted promptly. Harbeant Singh was referred to Civil Hospital, Mansa, thereafter to Dayanand Medical College and Hospital, Ludhiana. Whereas, the accused party reached the hospital on 1.10.1995 at 6.00 a.m. as per Ex. DA. Sukhdev Singh was medically examined on 1.10.1995 at 7.50 a.m. Gurcharn Singh was examined at 7.30 a.m. on the same date. The trial Court after appreciating the evidence on record has recorded a finding that had Sukhdev Singh and Gurcharn Singh received injuries at the hands of the complainant party they would have certainly felt aggrieved and would have certainly reached hospital/PHC Sardulgarh immediately after occurrence. The Court has concluded that the aggressor party was the appellants-accused as they did not reach the hospital immediately. There is a delay of 12-13 hours in reaching the PHC Sardulgarh. This factor has been taken as a ground to declare the appellants-accused as aggressors.

FIR Ex. PE was promptly written on the statement of Hargobind Singh whereas statement of Sukhdev Singh was recorded on the next day at 10.00 a.m. This factor is also to be taken against the appellants-accused.

Besides this, the injuries on the person of the appellants-accused are simple in nature except two injuries on the person of Sukhdev Singh. The finding of the Court that some injuries were fabricated by Sukhdev Singh and Gurcharn Singh on their person, is not sustainable for the reason that the complainants had admitted in the cross-examination as well as in the examination-in-chief that they had caused some injuries to Sukhdev Singh and Gurcharn Singh.

There is a categorical evidence with regard to the place of occurrence. The statement of Gulzar Singh ASI PW7 clearly proves that the occurrence took place on the metalled road in frond of the house of Sukhdev Singh. From that road a passage bifurcates to the house of the complainant and his brothers. It was natural for the complainant party i.e. Hargobind Singh, Harbeant Singh and Gurdev Singh to pass through the same way. The metalled road is a thoroughfare. Appellant Sukhdev Singh, while appearing in the witness box as DW1 stated that the occurrence took place in his house. Even Kamal Kumar DW2 photographer was produced to prove that the broken carts, kasia, gandasas and shoes were lying in the house of the accused. Learned trial Court, after appreciating the evidence, has come to the conclusion that their evidence does not inspire confidence and it does not prove that the occurrence had taken place in the house of Sukhdev Singh. Dr. H.S. Salhi found firearm injuries on left upper limb and left lower limb of Harbeant Singh. There was multiple gun shot wound of pellets on lateral aspect of upper 3rd thigh blackening around the margins present and there was also singing of hair. Two wounds of two milimeter diameter on lateral aspect of anterior abdominal wall, were also found on the person of Harbeant Singh. These injuries were firearm injuries. Mere presence of blackening around and singing of hair clearly goes to prove that the shot from the gun was fired from a close range. It clearly proves that Sukhdev Singh and Swarn Singh were armed with gandasas and Gurcharn Singh was armed with DBBL gun and came outside their house as soon as Hargobind Singh, Harbeant Singh and Gurdev Singh were spotted on the metalled road in front of their house with a purpose to take revenge and in view of the definite motive and, therefore, it can be concluded that occurrence had taken place on the metalled road. These facts clearly indicate that the accused party was aggressor.

Now looking into the nature of injuries, it is clearly proved that injuries on the person of Harbeant Singh are more serious. The firearm injuries on the left lower limb, left upper limb and the abdomen of Harbeant Singh were caused and the abdominal injuries were declared dangerous to life. There was injury on the head of Harbeant Singh caused by gandasa by Sukhdev Singh. Injury No. 2 was declared grievous in nature caused by blunt weapon on the person of Hargobind Singh, whereas the injury on the person of Gurdev Singh was declared as simple in nature caused with blunt weapon. Only two injuries i.e. injury No. 7 and 8 on the person of Sukhdev Singh were declared grievous, caused by blunt weapon. On other injuries on the person of Sukhdev Singh are on the non-vital parts of the body and both the injuries on the person of Gurcharn Singh were simple in the nature caused by sharp edged weapon. This is a clear indicator that if the complainant party would have been aggressor, they would have caused much more severe injuries.

Now coming to the point of number of injuries, no doubt there were eight injuries on the person of Sukhdev Singh and two injuries on the person of Gurcharn Singh but all the injuries on the person of Sukhdev Singh were on non-vital parts of the body. One injury on the person of Sukhdev Singh by Harbeant Singh with kasia and two injuries on the person of Gurcharn Singh by Gurdev Singh with kahi were admittedly caused in their self-defence and in defence of Hargobind Singh. Sukhdev Singh and Gurcharn Singh utilized the time of about 12-13 hours, after the occurrence, to fabricate the remaining injuries. Under these circumstances, the mere fact that the injuries on the persons of Sukhdev Singh and Gurcharn Singh were slightly more in number, does not mean that they were not the aggressors as some of the injuries caused by them on the person of Harbeant Singh were dangerous to life and more serious in nature.

Learned Counsel for the appellants-accused has failed to rebut the findings recorded by learned trial Court. The conclusion drawn by the trial Court is based on the evidence both ocular and medical and from the evidence it is concluded that complainant party was not the aggressor party rather appellants-accused were the aggressors. Learned Counsel for the appellants-accused has failed to point out any evidence on record from which it can be concluded that both the parties had intention to fight and there is no evidence that there was a pitched battle between the parties. Had the fight taken place in the fields itself when the dispute over the flowing of water through the water channel arose amongst the parties, it would have been said that both the parties intended to fight from the start and had a pitched battled in which the injuries were caused. The appellants-accused waited for the arrival of the complainant party in the village. When the complainant party reached then the appellants-accused caused injuries. As such, the benefit of doubt that the injuries have been caused by the appellants-accused in self-defence cannot be given to the appellants-accused nor it can be held that it was free fight between the parties.

After considering entire evidence on record, I cannot disbelieve the statement of PW2 Hargobind Singh, PW3 Harbeant Singh and PW4 Gurdev Singh. There is a categorical evidence of the Forensic Science Laboratory that the fire was shot from the gun recovered from Gurcharn Singh. The medical evidence clearly corroborates the ocular version. Therefore, contention of Learned Counsel for the appellants-accused raising doubt about the occurrence and use of defence is found without any basis.

On perusal of the evidence on record, I find that there is no contradiction in the evidence adduced by the witnesses, which proved the prosecution case. Injured eyewitnesses to the occurrence have categorically stated the manner in which the injuries were caused. Injuries dangerous to life have been caused to Harbeant Singh by Gurcharn Singh with firearm. The Investigating Officer has proved the rough site plan. The use of firearm by Gurcharn Singh, which is a licenced gun of Sukhdev Singh, has been proved on record.

In view of the above discussion, I am of the view that the conviction and sentence awarded by the trial Court is based on the ocular and medical evidence, which stand corroborated. Hence conviction and sentence is upheld.

Learned Counsel for the appellants-accused contended that this is a case of cross-version. The accused party has also suffered injuries. The incident is 17 years old. The parties are living with peace. There is no untoward incident after that incident between the parties. No useful purpose will be served by sending the appellants-accused behind bars. At this stage if that is done, it will further create tension between the parties. These are the mitigating circumstances in which the learned Senior counsel for the appellants-accused prays that appellants-accused may be awarded sentence already undergone.

Keeping in view these facts, I am of the view that these are the sufficient grounds on which sentence can be modified to the period already undergone so as to keep peace and harmony.

Ordered accordingly.

If appellants-accused are in custody, they be released forthwith, if not required in any other case. Appeal stands disposed of accordingly.