& Anr Vs. State of Haryana  Insc 337 (12 May 2005)
Reddi & P.P. Naolekar
J U D
G M E N T P.VENKATARAMA REDDI, J.
two appellants herein were convicted under Section 307 read with Section 34 and
Section 323 read with Section 34 IPC and they were sentenced to undergo
rigorous imprisonment for ten years for the offence under Section 307/34 IPC
and to pay a fine of Rs.100/- each.
appeal to the High Court of Punjab & Haryana, the High Court upheld the
conviction under the aforementioned Sections but reduced the sentence of the
second appellant Balbir from ten years to seven years. The High Court further
directed the appellant Jagdish to pay Rs.1 lac and the other appellant Balbir
to pay Rs.50,000/- as compensation to Sukhbir (PW- 8).
were charged for attempt to murder Sukhbir (who was examined as PW-8) on
9.8.1990 at about 11.15
AM in the village Sihol.
prosecution case is that there were some ill-feelings between the accused and
the members of the prosecution party on account of a land dispute. On 9.8.1990,
PW-8 along with his brother Om Prakash (PW-9) went to Palwal in order to get
the ticket reservation done and also to purchase some household goods. At about
11.15 AM, when they crossed G.T. Road, all of a sudden, the second
accused Balbir, armed with a lathi and the other accused Jagdish, armed with Gandasa
accosted them. The second accused Balbir hit Sukhbir (PW-8) on the knee with lathi
as a result of which Sukhbir (PW-8) fell down. Thereafter, the accused Jagdish
attacked Sukhbir (PW-8) with gandasa and inflicted injuries on the head and
both the arms of Sukhbir. The gravity of injuries on the hands was such that Sukhbir
suffered amputation of hands. After hue and cry being raised by Om Prakash
(PW-9), the accused fed away. He also lodged a report to the police station at 12.15 PM on the same day. Om Prakash and others took Sukhbir
to the hospital. FIR was registered by ASI Bhagat Ram (PW-10). Initially, the
victim underwent treatment at city hospital, Palwal and, thereafter, he was
shifted to Army Hospital, Delhi in the evening of the same day.
Though the prosecution claimed that the weapons gandasa and lathi were
recovered on the basis of the disclosure statement made by the accused persons,
it was disbelieved by the trial court. The victim was first examined at Palwal Hospital by PW-6 (Dr.A.K.Malik) who found six incised wounds on the
scalp and hands and two abrasions of 1/2"to 1/2"on both the knees. He
gave the opinion that injuries 1 to 5 were cumulatively dangerous to life.
Amongst the injuries, PW-6 found the right hand with lower 1/3rd of the forearm
in an amputated form. There was also an incised injury on the left wrist 3
1/2" x 2 1/4" and the left hand was found attached with left forearm
through skin flaps and ligament of ulnar side. Thus, the impact of the injuries
inflicted with a sharp-edged weapon were such that both the hands suffered
the doctor in Army Hospital, found incised wound over left parieto occipital region of
scalp. He also found the following three injuries:- "
Lacerated wound left parietal region 3" long already sutured.
wound occipital region 3" long already sutured.
upper limb traumatic amputation through left wrist with hand hanging
not mention any incised injury apparently because by that time the injuries
were sutured. He also did not note any abrasions on the knees. PW-9 Om Prakash
(the brother of the informant) lodged a report to the police. Sukhbir, the
injured, gave evidence as PW-8. The evidence of these two witnesses was
believed by both the courts. We do not find any material contradiction or
anything unnatural in the evidence of these eye witnesses including the injured
eye witness. The criticism levelled against the prosecution case is that the
FIR was not recorded at the time at which it is stated to have been recorded.
But, most probably, it could have been brought into existence a few hours later
after deliberations. This criticism is based on the fact that according to
PW-9, he had gone to police station to lodge the FIR whereas according to PW-8
when he was taken to the hospital his brother (PW-9) was in his company. This
discrepancy, in our opinion, does not demolish the entire prosecution case.
Having regard to the fact that the FIR was recorded at 12.15 PM, there was a possibility of PW-9 lodging the report
after leaving his brother in the hospital at 11.45 AM. Thus, there was sufficient time gap of half an hour.
counsel for the appellant mainly concentrated on the case of A-2 (Balbir).
According to the evidence of PW-8 and PW-9, A-2 (the 2nd appellant) gave one lathi
blow on the knee. If so, the injury found on the knee could have been more
severe and not mere abrasion of 1/2" to 1/2".
as there was one blow, there could not have been any injury on the second knee
also. According to the learned counsel for the appellants, these abrasions
could have been caused on account of fall on the ground as stated by PW-6 (Dr.Malik).
In any case, it is contended that the second appellant cannot be said to have
common intention with the first appellant. If at all they can be convicted for
the individual acts, we find force in the contention of the learned counsel for
the appellant as regards the second appellant (A-2) is concerned. PW-5 did not
find any injury at all on the knees. Maybe, that it was so minimal that it
could have escaped the attention of PW-5. The other possibility is that this
mild abrasion could be caused by reason of fall. In any case, the version of
PW-8 that lathi blow was given with such a force that as a result of its
impact, the victim fell to the ground cannot be accepted. That apart, even
according to the prosecution case, attack took place suddenly in a public place
when PW-8 and 9 were returning to their home from Palwal.
highly doubtful whether the appellant No.2 shared his common intention with
appellant No.1 and both of them wanted to kill PW-8 (Sukhbir). The conviction
and sentence of the second appellant (accused No.2) is, therefore, set aside
and the appeal is allowed in so far as the second appellant is concerned. He
shall be released forthwith from the jail if he is not required in any other
to the case of the first appellant, we find that there is no ground to
interfere with the finding of the trial court as affirmed by the High Court as
there are no compelling grounds to discard the testimony of the injured eye
witness who was brutally assaulted by A-1 with a dangerous weapon. We,
therefore, affirm the conviction of appellant No.1. As regards the sentence, we
would not have felt inclined to reduce the same but for the fact that the first
appellant during the course of hearing has come forward to pay the compensation
amount of Rs.1 lac awarded by the High Court and the learned counsel for the
appellant has brought three Pay Orders of Punjab National Bank for a total sum
of Rs.1 lac, we consider it just and proper to reduce the sentence to eight
years rigorous imprisonment instead of ten years while confirming the
conviction under Section 307 IPC.
counsel for the intervenor who is the injured person is not present today in
the Court. The Pay Orders shall be forwarded by the Registry to the Chief
Judicial Magistrate, Faridabad (Haryana) for handing it over to
the injured person Sukhbir (PW-8) son of Raj Pal after being satisfied about
appeal is allowed in the aforesaid terms.