MOHINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ON 9-4-1981, at about 6 P.M., in the area of Padri, Joginder Singh and his brother Inder Singh were present in their house. All the five petitioners came in front of their house and started abusing them Jarnail Singh petitioner was armed with a Takwa, Mohinder Singh with Gandasi, Lakhwinder Singh with Dang, Karnail Singh Dang and Kehar Singh alias Baggu also with Dang. They were also abusing by name the witnesses and were saying that you got the working still of Baggu raided by police. Joginder Singh and Inder Singh told them that they should not be abused as they had not got the working still raided. Jarnail Singh wielded his Takwa towards Joginder Singh who for saving himself put forth his left hand and the Takwa hit his thumb Jarnail Singh again wielded his Takwa hitting the thumb of left hand of Joginder Singh. Lakhwinder Singh gave a Dang blow on the right leg of Joginder Singh and another Dang blow on his left ankle. Joginder Singh raised noise and his brother came forward but Mohinder Singh wielded his gandasi hitting Inder Singh by the sharp edged side on his head. Baggu then caused injuries with a Dang on the left flank and left thigh of Inder Singh. Karnail Singh then gave a Dang blow on the left arm and right thigh and Baggu gave a Dang blow on the left knee of Inder Singh. To save themselves the prosecution witnesses gave injuries to Jarnail Singh, Karnail Singh and Lakhwinder Singh. On hearing their noise, Smt. Parkash Kaur wife of Joginder Singh, Ujagar Singh son of Kala Singh neighbour of Joginder Singh came to the spot and rescued them, otherwise the assailants would have killed them. The assailants then ran away towards their houses. The injured were removed to the P.H.C. Makhu but doctor there being not present, they were brought to Civil Hospital Ferozepur. A.S I. Mehar Singh Head Constable scribed the statement Ex, PA of Joginder Singh and after endorsement sent it for the registration of the case and FIR No. 140 dated 10.4.1981 under Sections 326,324,323/148/149 I.P.C. was registered in the police station.

(2.) AFTER investigation, the challan was put in and during trial prosecution examined PW 1 Joginder Singh, PW 2 Inder Singh and PW 3 Ujagar Singh as eye witnesses. The fourth eye witness Smt. Parkash Kaur wife of Joginder Singh was given up as having been won over. All the three eye witnesses have supported the prosecution. PW 4 Nachhitar Singh ASI registered FIR Ex. PA/I on the basis of Ex. PA statement of Joginder Singh recorded by H C. Mehar Singh. PW 5 Gurdial Singh is a witness of recovery of blood stained earth in front of the house of Joginder Singh. Banta Singh another recovery witness was given up as unnecessary. PW 6 Head Constable Mehar Singh supports the recording of the statement Ex PA, after receiving ruqa from the doctor and he investigated the case and put in the challan. PW 7 Dr. A. S. Mann medically examined Joginder Singh and found two incised wounds, one swelling and an abrasion on his person. One of the incised wounds on back and middle of proximal phalanx of thumb of left hand was declared as grievous. He also medically examined Inder Singh and found six injuries on his person. Two injuries were kept under observation and later on declared to be simple. Thus, all the injuries on the person of Inder Singh were simple. PW 8 Dr. S.K. Gupta X-rayed the injury on the skull and right knee joint but found no fracture. Report of X-ray is Ex. PW 8/A. In cross examination he admitted that on 11.4.1981 Jarnail Singh and Karnail Singh, petitioners, were rayed in respect of injury on the left hand of Jarnail Singh and injury on the skull of Karnail Singh and found out fracture of the third metacarpal bone and fracture of frontal bone respectively. PW 9 Resham Singh, constable, who produced the roznamcha dated 10 4.1981 and proved report No. 39 of that date was scribed on behalf of SHO Darshan Singh. According to this entry, at about 6.45 A.M. on that date. Gurdev Singh ASI made a report that two injured persons from village Padhri have reached Civil Hospital Ferozepur and some Investigating Officer be sent. In pursuance thereof, Mehar Singh H.C. alongwith two constables were sent. This witness was not cross-examined. Thereafter, the prosecution evidence was closed. The trial Court after discussing the evidence on record found all the accused guilty under the offences noted in para No 16 (i) to (v) of the trial Court judgment and sentenced them as indicated in the order of the trial court dated 27.10.1983.

(3.) THE learned counsel in support of this revision has argued vehemently only one point. He states that it is admitted case of the prosecution that out of the petitioners three persons Jarnail Singh, Karnail Singh and Lakhwinder Singh were caused injuries by Joginder Singh and Inder Singh and there is no evidence on the file to determine which party is the aggressor. He has further argued that both the Courts below have acted on the principle that injuries on the persons of the accused being not serious, the prosecution was not required to explain such injuries. Another principle on which the petitioners have been convicted and sentenced is that there must be some evidence to shows that the injuries on the persons of the accused were caused at the time of occurrence in question. The trial Court while discussing this part of the case has taken into consideration statement of Dr. Jaspal Singh who was examined as PW 5, in a cross case arising out of a complaint and referred to his statement to show that there were three injuries on the person of Karnail Singh who was examined at 8.00 A.M. on 10.4.1981 by him. According to the statement of this witness recorded in the complaint Lakhwinder Singh and Jarnail Singh were also examined on the said day at 8.15 and 8.25 A.M. The evidence recorded in the cross case could not be referred to and to this extent reference to the same is not warranted by law. What we have in this present case is that out of the injuries of Jarnail Singh one on the base of third metacarple bone was found to be a cut fracture and one of the injuries on Karnail Singh was found to be a fracture of frontal bone. Both these injuries are quite serious specially when all the injuries on the persons of PWS were found to be simple. The real question before the Courts below was whether the injuries on the persons of the three accused petitioners were caused in right of self defence or were caused as a matter of aggression. The plea put forth in the trial Court is that Parkash Kaur wife of Joginder Singh provided dangs to these two witnesses after they had been injured and they in self defence caused injuries to three accused petitioners. Originally the case of the prosecution was that Parkash Kaur alongwith Ujagar Singh was an eye witness but this fact of Parkash Kaur having brought the Dangs and handed over the same to Joginder Singh and Inder Singh PWs is a definite improvement during the trial and this improvement is not without any purpose. Surprisingly the prosecution gave up Parkash Kaur as having been won over vide statement of Raghbir Singh APP made on 22.10.1981. If we exclude this part of the version then the conclusion would be that Joginder Singh and Inder Singh had already weapons with them and it is not possible to believed that they continued receiving injuries and did not wield their weapons at all. What happened in the complaint filed by Karnail Singh is not material because the reason on which the complaint was decided cannot be imported in this case for its decision. The evidence recorded in that case also cannot be referred to. In cases, where both the parties are injured and accused party has fractures on their side and the prosecution witnesses have only simple injuries it becomes the function of the Court to go into the evidence minutely to come to a definite finding as to which of the parties is, an aggressor and which party acted in self defence. There being no plausible explanation given by the prosecution witnesses the petitioners are entitled to benefit of doubt.