SAVITA KUMARI MS Vs. UNION OF INDIA

JUDGEMENT

(1.) One Sham Lal alias Sham Sunder along with two others were tried for offences punishable under S. 302, 302/34 and 307/34 Indian Penal Code and the trial court convicted all the three of them and sentenced each one of them to undergo imprisonment for life and also other terms of imprisonment and to pay some fine. The sentences were directed to run concurrently. They preferred an appeal to the High court and the High court agreeing with the findings of the trial court dismissed the appeal. Questioning the same they preferred Special Leave Petition (Cri. ) No. 970 of 1985 in this court but the same was dismissed by this court by an order dated 18/11/1985. It appears that during the pendency of the appeal before the High court, Sham Lal filed a petition to take action under the Punjab Borstal Act, 1926 but the same was dismissed. Against that order, it appears that a different Special Leave Petition was filed but that was also dismissed and we are not concernedwith that at this stage. As against the order dismissing Special Leave Petition (Cri. ) No. 970 of 1985, Review Petition No. 134 of 1989 was- filed. Writ Petition No. 322 of 1988 was filed under Article 32 of the Constitution of India questioning the vires of the provisions of the Punjab Borstal Act on the ground that they are inconsistent with and are violative of Articles 14 and 21 of the Constitution. We will first take up Review Petition No. 134 of 1989 filed by Sham Lal, A 2.

(2.) Sham Lal was convicted under Section 302 Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 3,000. 00 in default of payment of which to undergo further Rl for 1 1/2 years, under Section 307 Indian Penal Code to undergo five years Rl and a fine of Rs. 2,000. 00 in default of payment of which to undergo further Rl for one year and also under S. 307/34 Indian Penal Code to undergo three years Rl and a fine of Rs. 1,000. 00 in default of payment of which to undergo further Rl for one year. These convictions and sentences are confirmed by the High court. As against that, he along with the other two convicted accused filed Special Leave Petition (Cri. ) No. 970 of 1985 which was dismissed by this court and the present review petition is filed against the dismissal order in Special Leave Petition (Cri. ) No. 970 of 1985 by Sham Lal alone. It may be mentioned here that notice has already been ordered on this review petition. From the contents of the review petition it can be seen that the petitioner sought review not only on the ground of legality of the conviction but also. on the question of sentence namely that he should have been sent to the Borstal School as he was aged only 21 years then. To appreciate these contentions we shall state a few facts which led to the filing of this review petition as well as the writ petition.

(3.) The petitioner along with other two accused were tried for causing the death of one Kashmir Singh on 30/04/1982 and also attempting to cause the death of Balbir Singh and Bishan Singh. This occurrence took place because of a land dispute. On the day of occurrence the deceased and the two injured witnesses were returning to the village after harvesting the crop in a tractor to which a trolley was attached. The deceased was driving the tractor. Balbir Singh, Public Witness 7 and Bishan Singh Public Witness 8 were sitting on the mud-guard and Dalip Singh, Public Witness 6 was sitting in the trolley. When they reached near the karyana shop in the grain market they found all the accused there. Tek Chand, A I was carrying a double-barrel gun and the petitioner Sham Lal was carrying a revolver and Tilak Raj was carrying a stick. It is alleged that Tilak Raj raised a lalkara. Thereupon Tek Chand fired his gun causing injury to Bishan Singh, Public Witness 8 and the petitioner Sham Lal fired at Kashmir Singh deceased and he also caused injury to Balbir Singh, Public Witness 7 on the left leg. During the same occurrence Tilak Raj, A 3 also was seriouslyinjured. People gathered there and the accused are alleged to have run away. During the post-mortem conducted on the dead body of Kashmir Singh, the doctor Public Witness 3 found two wounds, one entry wound and another exit wound which could have been caused by a single gunshot. On Balbir Singh, another doctor, Public Witness 4 found one punctured wound and on Bishan Singh, he found only two abrasions. Tilak Raj was also admitted in the hospital. The petitioner in his statement stated that on 30/04/1982 at about 8.30 p. m. Tilak Raj and farm servant went in a tractor trolley loaded with grains for marketing. He and his father Tek Chand started in their matador van and overtook their tractor near the turning in the market. Near that point they saw a tractor driven by Dalip Singh, Public Witness 6 coming from the opposite direction and in the trolley of that tractor, Bishan Singh, Balbir Singh, Shingara Singh PWs and Kashmir Singh deceased were riding. They tried to dash against the trolley driven by the petitioner and his father. Thereupon Dalip Singh hurled abuses. The petitioner got down and fired into the air. Thereafter they went into the market and they were sitting on a cot lying in front of the shop. At that time Bishan Singh armed with a karai, Kashmir Singh armed with a dang fitted with iron patti and Balbir Singh, Shingara Singh armed with dangs chased them. Bishan Singh tried to snatch the gun from Tek Chand, father of the petitioner. This Tilak Raj tried to resist. Thereupon the deceased gave a dang blow on the head of Tilak Raj and other witnesses also gave blows to Tilak Raj who became unconscious. The petitioner's father Tek Chand also received injuries. The petitioner also was attacked by the deceased and others and caused him injuries. At that juncture, the petitioner took out a revolver and fired two shots in the air but the deceased and other PWs did not desist from attacking. Then in order to save himself, his father and Tilak Raj the petitioner fired at Kashmir Singh and Balbir Singh. From the above stand taken by the petitioner, it can be seen that the petitioner specifically pleaded self-defence. The doctor, DW 2 who examined Tek Chand found as many as 14 contusions all over the body and injured No. 13 was an incised wound on the leg. The same doctor also examined the petitioner and on him he found one incised wound and two contusions. On Tilak Raj, the other accused there were very serious injuries and he was examined by a doctor, Public Witness 4 who examined other PWs also. The doctor found on Tilak Raj one lacerated wound 1.5 cm x. 25 cm vertical on the forehead bleeding. There was another lacerated wound 3 cm x. 5 cm and (sic on the) vertical limb was 4.5 cm x. 5 cm on the left side of the head in front of parietal region. The doctor also stated that Tilak Raj was in semi-conscious condition. The doctor further opined that injury No. 2 was grievous as it resulted in the fracture of the frontal parietal bone. It is important to note that the prosecution has not come forward with a plausible and acceptableexplanation for the presence of these injuries on the accused. The High court has not considered the importance of this aspect in a proper perspective.