KHAZAN SINGH Vs. STATE

JUDGEMENT

(1.) BY this appeal, the Appellants have challenged their conviction in case FIR No. 284/1996 under Section 325/34 IPC and Section 452/34 IPC and sentence for Rigorous Imprisonment for a period of one year on both the counts which was to run concurrently. During the pendency of the present appeal, Appellant No.1 Khazan Singh died. Hence, appeal qua him stood abated vide order dated 9th September, 2010. Since the Appellants were not present initially bailable warrants were issued pursuant to which Appellant No.2 Mangat Singh was present. However, Appellant No.3 Pritam Singh was not present as he was not found residing at the given address and, thus, non- bailable warrants were issued on 9th September, 2010. On 17th February, 2011, the surety of Appellant No.3 appeared in Court and stated that he had informed the Appellant No.3 to be present, however he still did not appear. Again non-bailable warrants were issued against Appellant No.3 to be On 16th March, 2011 the surety of executed through SHO concerned. Appellant No.3 appeared. The surety bond was discharged as the surety of Appellant No.3 had fully cooperated and made all efforts to trace Appellant No.3 and non-bailable warrants issued against Appellant No.3 were executed with the cooperation of the surety. Since the Appellant No.3 had misused the concession of order dated 17th July, 2000 suspending the sentence, the order was recalled and he was directed to undergo the remaining sentence. Thus, presently Appellant No.2 is on bail whereas Appellant No.3 is in custody.

(2.) LEARNED counsel for the Appellants contends that the dispute is between the families of two brothers, PW2 Balwant Singh is the injured witness. PW3 Khanda Singh is the father of the injured, PW1 Jawant Singh and PW4 Uttam Singh are brothers. PW4 though is the brother of injured, however, he turned hostile. The Trial Court concluded that there was no intention to commit culpable homicide hence exonerated the Appellants for offence under Section 308 IPC and convicted them for offences under Section 325/34 IPC. No doctor has appeared in the witness box. The MLCs have been exhibited by the record clerk and hence it cannot be said that it has been proved that the injury was grievous in nature. Even the Trial Court concluded that the injury cannot be treated to be grievous, and still convicted the Appellants for offences under Section325/34 IPC. The Appellant No.1 who has since died and PW3, the father of the injured are real brother. Though the allegations are that the injured were assaulted by danda and kulhari, however no recovery of weapon of offence can be said to have been made at the instance of Appellants. Reliance is placed on Prem Singh and Ors. Vs. State 2011 I AD (DELHI) 175 to contend that Section 325 or Section 323 IPC is not a minor offence of Section 308 IPC and hence the Appellants cannot be convicted for the offence under Section 323 IPC as well. The conviction under Section 452/34 IPC is also not sustainable as the incident took place in the open veranda outside. In the alternative, it is argued that the Appellant No.3 has now been in custody for more than four months and in view of the prolonged trial they have faced, the Appellant should be released on the period already undergone.

(3.) PW8 R.S. Khera the Record Clerk AIIMS has appeared in the witness box and has identified the handwriting of Dr. Anupam Singh on the MLC. The original MLC was seen and returned. PW 9 Head Constable Mohd. Yusuf is the Investigating Officer who has stated about the investigation conducted by him along with PW10 Constable Virender PW10. Both of them have deposed about the injury on the person of PW2 and recovery of weapon of offence from Appellant No.1. PW11 Dr. Anu Kapoor is the Radiologist from AIIMS who has exhibited X-ray report Ex.PW11/A which is in the handwriting of Dr. Anil Malik who had examined the X-ray plate No. 13504. Dr. Anu Kapoor has identified the handwriting and signatures of Dr. Anil Malik. This witness has not been cross-examined.