JAI SHAM Vs. STATE OF UNION TERRITORY, CHANDIGARH

JUDGEMENT

(1.) WE will be deciding (i) Criminal Appeal No. 228-SB of 1997 filed by appellants Jai Sham, Roop Singh, Saleem, Pappi alias Som Nath and Abdul Zafar, (ii) Criminal Appeal No. 275-SB of 1997 filed by appellant Rajinder and Criminal Appeal No. 526-DBA of 1998 filed by Union Territory, Chandigarh, by this common judgment, as they arise out of the same impugned judgment.

(2.) THE learned Additional Sessions Judge, Chandigarh, vide his judgment dated 13.3.1997 convicted appellant Jai Sham under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months. He was further convicted under Sections 148 and 326 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2-1/2 years and three years respectively and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was further convicted under Sections 324 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and one year respectively. Appellant Roop Singh was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Sections 148 and 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2-1/2 years and four years respectively and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was further convicted under Sections 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and nine months respectively. Appellant Rajinder was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1-1/2 years. He was convicted under Section 326 read with Section 149 of the Indian Penal Code and sentenced to undergo imprisonment for three years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was further convicted under Sections 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and nine months respectively. Appellant Saleem was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2-1/2 years. He was further convicted under Sections 326, 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under Section 326 of the Indian Penal Code and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months, rigorous imprisonment for one year under Section 324 and nine months under Section 323 of the Indian Penal Code. Appellant Pappi alias Som Nath was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1-1/2 years. He was further convicted under Sections 326, 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under Section 326 of the Indian Penal Code and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months, rigorous imprisonment for one year under Section 326 of the Indian Penal Code and nine months under Section 323 of the Indian Penal Code. Appellant Abdul Zaffar @ Dokha was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2-1/2 years. He was further convicted under Sections 326, 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under Section 326 of the Indian Penal Code and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months, rigorous imprisonment for one year under Section 324 of the Indian Penal Code and nine months under Section 323 of the Indian Penal Code. All the substantive sentences awarded to each of the appellants by the trial Court were ordered to run concurrently.

(3.) THE case of the prosecution is unfolded by the statement given by complainant Dilshad Ahmad to Karnail Singh, Sub Inspector, Police Station Mani Majra near the turning to the Police Station on 14.5.1994 at 9.45 P.M. Dilshad Ahmad stated that he is a resident of Indira Colony Mani Majra. He works as a Tailor Master in shop No. 8 in Indira Colony in the main market. Rakesh Sharma, a childhood friend of his, who studied with him till Matric, came in the evening to Indira Colony to have his clothes stitched. Satish son of Itwari Lal, a resident of Indira Colony, was already sitting in the shop. Complainant took the measurement of Rakesh Sharma. All three of them, went to a tea stall to take tea, after locking the shop. When Complainant Dilshad Ahmad along with his companions was coming out of the shop, he saw Roop Singh son of Ram Chander, resident of Indira Colony, staring at him. This was because that about 15 months prior to the present occurrence, a dispute had erupted between Roop Singh, Saleem and Abdul Zafar @ Dhokha etc. on the one side and complainant and Satish on the other side. A case was registered regarding that occurrence against the complainant and Satish, which is still pending in the Court. Complainant Dilshad Ahmad asked Roop Singh, as to why, he was staring at him, Roop Singh started abusing the complainant in the name of his sister and then gave a slap on his face. Complainant also got enraged and gave slaps on the face of Roop Singh. Rakesh Sharma intervened and separated the complainant and Roop Singh. Complainant Dilshad Ahmad along with Rakesh Sharma and Satish went to the house of Satish, where they took tea. Entire occurrence was narrated to the father of Satish. After taking tea, all three of them, then went to the side of railway line for strolling and also to ease themselves. Complainant and Rakesh Sharma sat on a heap of Bajri and were smoking Biris. Satish was sitting at some distance from them. After some time at about 8.30 P.M., 9 to 10 persons were seen coming from the side of the railway line towards them. They being Roop Singh, Saleem, Jai Sham, Abdul Jaffar @ Dhoka, Rajinder and Pappi and the others could not be recognised. Saleem, Jai Sham and Roop Singh were having guptis (sword sticks) in their hands. Abdul Jaffar @ Dhokha had a talwar in his hand. Rajinder and Pappi, on coming near them, raised a lalkara that today is the time of finish off the three of them, out of three, none should go away without being spared. On hearing the lalkara, Satish came towards the complaint and Rakesh Sharma. Rajinder and Pappi caught hold of Satish. Saleem gave a gupti blow on the stomach of Satish with the intention to kill him. Jai Sham gave several blows with sharp edged gupti to Rakesh Sharma on his hands and feet. Roop Singh gave a gupti blow with its sharp side on the abdomen of Rakesh Sharma with the intention to kill him. The other persons, who could not be recognised, ran towards the complainant to catch him. Complainant raised an alarm "Bachao Bachao" and succeeded in running away. Some persons, who were residing in the nearby localities, on hearing shouts, came there and saved them. Surinder Singh, brother of Satish, also reached and took Satish to the hospital for treatment.