Sheela Devi And ANR. v. State Of Punjab

Criminal Appeal No.S-405-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.S-405-SB of 2004 Reserved on 24th May, 2017 Pronounced on : Sixth July,2017 Sheela Devi and Avinash Kumari ..Appellants versus State of Punjab and another ..Respondents Ashok Kumar and Vijay Kumar ..Appellants versus State of Punjab and another ..Respondents and Criminal Revision No.2411 of 2004 Subhash Chander .. Complainant-petitioner versus Ashok Kumar and others ..Respondents

CORAM:

HON'BLE MR.JUSTICE RAMENDRA JAIN

Present:

Mr. Anupam Bhanot, Advocate for the appellants (in CRA-S-405-SB of 2004) and for respondent Nos.3 and 4 (in CRR No.2411 of 2004).

Mr. Brijesh Nandan, Advocate, for the appellants (in CRA-S-585-SB of 2004) and for respondents no.1 and 2 (in CRR No.2411 of 2004) Mr. B.D.Sharma, Advocate, for the petitioner (in CRR No.2411 of 2004) Mr. Sandeep K.Bansal, AAG, Punjab

Criminal Appeal No.S-405-SB of 2004 2 RAMENDRA JAIN, J.

By this judgment, two criminal appeals, bearing No.S-405-SB of 2004 and No. S-585-SB of 2004 filed by the appellants-convicts and one Criminal Revision No.2411 of 2004 filed by Subhash Chander complainant against the impugned judgment of conviction and order of sentence dated 03.02.2004 passed by learned Additional Sessions Judge (Fast Track Court), Ferozepur, shall be disposed of, whereby the appellants have been held convicted under sections 326, 324, 326/34, 324/34, 323 and 323/34 IPC and sentenced them in the following terms:-

1. Ashok Kumar 326 IPC To undergo rigorous imprisonment for and four years and to pay a fine of Rs.500/-

2. Vijay Kumar each. In default thereof, to further undergo rigorous imprisonment for three months.

-do 324 IPC To undergo rigorous imprisonment for 1-1/2 years and to pay a fine of Rs.200/- each. In default thereof, to further undergo rigorous imprisonment for two months.

-do 326/34IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- each. In default thereof, to further undergo rigorous imprisonment for three months.

-do- 324/34 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.100/- each. In default thereof, to further undergo rigorous imprisonment for one month.

Criminal Appeal No.S-405-SB of 2004 3 -do323/34 IPC To undergo rigorous imprisonment for six months each.

3. Sheela Devi 326/34 IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs.500/-. In default thereof, to further undergo rigorous imprisonment for three months.

-do- 324/34 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.100/-. In default thereof, to further undergo rigorous imprisonment for one month.

-do- 323 IPC To undergo rigorous imprisonment for six months .

-do- 323/34 IPC To undergo rigorous imprisonment for six months.

4. Avinash Kumari 326/34IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs.500/-. In default thereof, to further undergo rigorous imprisonment for three months.

-do- 324/34 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.100/-. In default thereof, to further undergo rigorous imprisonment for one month.

-do- 323 IPC To undergo rigorous imprisonment for six months

Criminal Appeal No.S-405-SB of 2004 4 -do- 323/34 IPC To undergo rigorous imprisonment for six months.

All the sentences were ordered to run concurrently. Subhash Chander-complainant, on refusal of the police to take action against the appellants, who are his brothers, namely, Ashok Kumar and Vijay Kumar, sister-in-law Avinash Kumari and his mother, Sheela Devi, filed a complaint under Sections 307/326/325/324/323/452/506/34 of the Indian Penal Code, alleging that he and his brothers, namely, Ashok Kumar and Vijay Kumar were residing in separate portions held by them in a joint residential house situated in Krishna Nagri, Abohar. He was residing on the top floor, his brother Ashok Kumar along with his family members was residing in the middle floor and his brother Vijay Kumar along with his family members and Sheela Devi, mother, was residing on the ground floor of the house. On the basis of the family partition, all these three brothers were residing in their separate portions, in a joint three storeyed building and thus, the appellants had no concern with the top floor occupied by the complainant.

On 14.7.2001 at about 9.30 P.M. appellants, namely, Ashok Kumar, armed with a kappa, Vijay Kumar armed with a kirpan, Avinash Kumari and Sheela Devi, both empty handed, came to the top floor occupied by the complainant. Avinash Kumari asked Subhash Chander-complainant to vacate the portion occupied by him for which he refused by saying that he was also a co-sharer in the house, whereupon all the appellants attacked him. Ashok Kumar gave a kappa blow on the head of the complainantinjured; Vijay Kumar gave a kirpan blow on his left arm, whereas Avinash

Criminal Appeal No.S-405-SB of 2004 5 Kumari and Sheela Devi pushed down the complainant from stairs and thereafter all the appellants dragged him through the stairs and brought him down from top to the ground floor of the house. Sheela Devi and Avinash Kumari appellants gave kick blows on his back, left shoulder, chest and left leg, whereas Ashok Kumar inflicted more khap blows on his abdomen, right foot and left buttock and Vijay Kumar gave two more kirpan blows on his left knee and lower leg. Thus, Vijay Kumar further gave more injuries on his left thumb, right thigh and his back. The appellants inflicted injuries on the person of the complainant with an intention to kill him.

Kanchan, wife of the complainant, came to rescue him from the clutches of the appellants, but appellant Ashok Kumar gave a kappa blow on her left elbow, whereupon, appellant Avinash Kumari raised a lalkara to eliminate Kanchan by cutting her into pieces. Raising hue and cry by the complainant and his wife, attracted many people in the street. On seeing them, all the appellants ran away with their respective weapons. Om Parkash Dhamija, a relative, admitted the complainant and his wife Kanchan in the Civil Hospital, Abohar, where police came and pressurised them to compromise with the appellants.

After recording the preliminary evidence, the learned Judicial Magistrate 1st Class, Abohar, on finding a prima facie case, under sections 452/307/326/323/324/34 of the Indian Penal Code, took cognizance against the appellants. After procuring the presence of all the accused, committed the case to the Court of Sessions being a Session trial. All the appellants were put on trial by framing charges against them under Sections 452/307/326/323/324/34 IPC, to which they pleaded

Criminal Appeal No.S-405-SB of 2004 6 not guilty and claimed trial.

Prosecution, in support of its case, examined PW1 Dr. Jaspal Singh, followed by PW2 Subhash Chander, complainant-injured PW3 Kanchan, his wife-injured and PW4 Dr. Neerja Gupta. After conclusion of the evidence adduced by the prosecution, the statements of the appellants under Section 313 of the Code of Criminal Procedure were recorded wherein they, while denying the entire incriminating evidence came against them on record, pleaded their false implication. In defence, appellant Ashok Kumar took a stand that Subhash Chander, complainant, who, is none other than his brother, wanted to usurp the property, which, after the demise of their father Sardari Lal, fell to the share of their mother Sheela Devi. In order to grab the property and pressurise their mother Sheela Devi, the complainant falsely implicated them in the present case.

In fact, Subhash Chander had inflicted injuries on the persons of Vijay Kumar and Avinash Kumari. In order to create evidence, the complainant had filed the instant false complaint. The remaining appellants also detoed the said version unfolded by appellant Ashok Kumar. In their defence, the appellants examined DW1 Dr. Jaspal Singh, who had also appeared as PW1 to prove the medico-legal report of appellant Vijay Kumar and the nature of injuries suffered by him. After hearing learned counsel for both the sides and on appraisal of the entire record, the learned Additional Sessions Judge (Fast track Court), Ferozepur, convicted and sentenced the appellants in the manner as indicated above in the opening paragraph of this judgment.

Criminal Appeal No.S-405-SB of 2004 7 occurrence took place on 14.7.2001 at 9.30 PM, whereas the complaint was filed on 7.8.2001 after much delay of 21 days of the occurrence. Therefore, the possibility of introduction of a colourful version cannot be ruled out. According to PW1 Dr. Jaspal Singh, Subhash Chander was under the influence of liquor at the time of his medical examination. The learned trial court failed to appreciate that the complainant was under the influence of alcohol. PW4 Dr. Neerja Gupta, who conducted an X-ray examination of Subhash Chander, did not find any fresh bone injury on his person rather had found one old fracture on his left humerus bone. It was a family fued in between the appellants and the complainant as they are closely related to each other.

In fact, Subhash Chander caught hold of his mother Sheela Devi and on account of this reason, his brothers, namely, appellants Ashok Kumar and Vijay Kumar intervened and as such, the complainant, being the aggressor of the fight, provoked the appellants. Though clothes of Subhash Chander complainant were handed over to the police, but no opinion of the doctor was taken as to whether cuts in the same were corresponding to the injuries, allegedly, found on his person by PW1 Dr. Jaspal Singh at the time of his medical examination and thus, this lapse has rendered the prosecution story doubtful.

On the other hand, learned counsel for the complainant has contended that the learned trial court wrongly acquitted the appellants under Section 307 IPC despite the fact that the appellants had caused 14 injuries on the person of the complainant, out of which, eleven were incised wounds and three injuries no. i.e., 3, 4 and 8 were declared grievous in nature. The appellants collectively wanted to get the top floor of the house

Criminal Appeal No.S-405-SB of 2004 8 occupied by the complainant vacated, forcibly and for that reason, they intentionally caused grievous injuries to him. He prayed that the appellants may be convicted and sentenced under the aforementioned offence of the Indian Penal Code.

I have given my thoughtful consideration to the submissions made by learned counsel for the appellants and the complainant and gone through the entire record carefully.

Undisputedly, the occurrence took place during the night time, on 14.7.2001 around 9.30 P.M. PW1 Dr. Jaspal Singh medically examined injured Subhash Chander in the Civil Hospital, Abohar, at 11.40 P.M., the same day. He found 14 injuries on the person of injured Subhash Chander, out of which, 11 injuries were incised wounds and the remaining three injuries 12, 13 and 14 were caused with blunt edged weapon. Injuries 3, 4 and 8 were subjected to x-ray examination. After receipt of the x-ray report, these injuries were found grievous in nature. PW1 Dr. Jaspal Singh has testified that clothes of injured Subhash Chander having corresponding cuts were immediately sent to the police. Thus, the deposition by PW1 Dr.

Jaspal Singh, showing the callous attitude of the police, for not registering the case against the appellants, had strengthened the story put forward by the complainant that at the time of his admission in the hospital, the police pressurised him to compromise the matter with the appellants.

Criminal Appeal No.S-405-SB of 2004 9 political pressure. There is no rebuttal or denial to the above categorical deposition made by PW2 Subhash Chander. PW3 Kanchan, wife of Subhash Chander, has testified that she along with her husband Subhash Chander remained admitted in the Civil Hospital, Abohar, for 20-25 days. According to the deposition made by PW4 Dr. Neerja Gupta, besides 11 incised wounds sustained by PW2 Subhash Chander-injured, as discussed above, the complainant-injured suffered three fractures, out of which, two were, of tibia and left knee, whereas the third one was of parieto-occipital bone. Hence, hospitalization of the complainant-injured for such a long period of 20-25 days is quite justified.

Resultantly, it can safely be concluded that the prosecution has been able to explain the delay of 21 days in filing the complaint satisfactorily. Thus, non-lodging of the FIR by the police after the occurrence, cannot be drawn adverse to the case of the prosecution. There is another important aspect of this case, which this court has to take into consideration, is that the appellants and the complainant are in blood relations and police must be pressurizing him for a compromise and on account of this reason, the police did not lodge the FIR. Hence, the argument advanced by the learned counsel for the appellants does not cut any ice. Since PW1 Dr.

Jaspal Singh has deposed that cuts in the clothes of the petitioner corresponding to the injuries, therefore, there was no necessity to seek his opinion later on and as such, the argument of the learned counsel for the appellants that the opinion was not sought from the doctor, in this regard, has no legs to stand. No doubt, PW1 Dr.

Criminal Appeal No.S-405-SB of 2004 10 itself, cannot be termed as a permit to the appellants for causing injuries to him. More so, it has not come in evidence that the injured at the time of his medical-examination was found under the heavy influence of liquor or alcohol and, therefore, he was not in a fit state of mind. The consumption of alcohol by the complainant relates to insignificant aspect of the case, of which no benefit can be given to the appellants. Besides an old fracture of left humerus bone, though found no fresh bone injury, but specifically disclosed that on observing x-ray examination of PW2 Subhash Chander, PW4 Dr. Neerja Gupta, found fracture of parieto-occipital bone, fracture of leftral condyle of right tibia and fracture of left tibia in left leg. As per x-ray report, Ex.

P5, it is evident on the record that three fractures were found on the person of the complainant-injured. Fresh fractures were found by PW4 Dr. Neerja Gupta, on the person of the complainant caused by the appellants. There is no iota of evidence on record that the complainantinjured was the aggressor. Rather, PW-2 Subhash Chander and PW3 Kanchan, his wife, have categorically deposed that the appellants, namely, Ashok Kumar and Vijay Kumar came to the top floor of the house occupied by them and caused injuries to them with a kappa and a kirpan in order to get vacated the upper portion from them where they were residing being the joint co-owner.

In view of the above discussion, I do not find any infirmity or illegality in the impugned judgment dated 3.2.2004 passed by learned Additional Sessions Judge (Fast Track Court), Ferozepur. Resultantly, both the criminal appeals, bearing No. S-405-SB of 2004 filed by appellants Sheela Devi and Avinash Kumari and No.S-585-SB of 2004 filed by

Criminal Appeal No.S-405-SB of 2004 11 Ashok Kumar and Vijay Kumar are dismissed and the judgment of conviction dated 3.2.2004 passed by learned Additional Sessions Judge (Fast Track Court), Ferozepur is, accordingly, upheld. However, sentence of fine imposed by the learned trial court is modified by enhancing the same to Rs.5000/- each, which shall be deposited by the appellants with the learned trial court to be disbursed to injured Subhash Chander, positively. During the course of arguments, the learned counsel for the appellants, while relying upon the judgment in Jagir Singh versus The State of Punjab (Criminal Appeal No.30-SB of 1995) decided on 16.4.

2009, alternatively made a prayer that since the appellants and complainant are in blood relations and they have been facing protracted criminal proceedings since 2002 and then the pendency of the appeal before this Court for the last more than 12 years, as also the fact that they had suffered a lot of physical pain and mental agony during all these years, the appellants may be released on probation of good conduct, keeping in view the provisions of Section 4 of the Probation of Offenders Act, 1958.

Considering the above submissions of learned counsel for the appellants and also the fact that the complainant and the appellants are closely related to each other, being real brothers, sister-in-law and mother, I am inclined to accept the prayer and release the appellants on probation of good conduct under section 4 (1) of the Probation of Offender's Act, 1958, on their furnishing personal bonds in the sum of Rs.10,000/-each to the satisfaction of the trial court for a period of one year during which period, the appellants shall maintain peace, be of good behaviour and not to commit any such offence.

Criminal Appeal No.S-405-SB of 2004 12 Criminal Revision No. No.2411 of 2004 Criminal Revision filed by complainant Subhash Chander for modification of the impugned judgment dated 03.02.2004 passed by learned Additional Sessions Judge, Fast Track Court, Ferozepur, whereby the appellants have not been held guilty under sections 307 and 452 of the Indian Penal Code holding that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. There is no specific finding that injuries suffered by the complainant were dangerous to life in an ordinary course of nature. Therefore, the appellants have rightly been acquitted under section 307 IPC.

Section 452 of the Indian Penal Code is also not attracted, inasmuch as, as per own version of the complainant, the appellants who were none else but his close relatives, i.e., his brothers, sister-in-law and mother, are residing in the same house. There was a family fued between the complainant and the appellants. Admittedly, they are close relatives, being real brothers, sisterin-law and mother. No previous enmity has been proved on the record and thus, they had no mens rea to commit any criminal act. The occurrence might have taken place due to sudden provocation or on account of some misunderstanding regarding their extent of share in the joint property held by them.

Having heard learned counsel for the State as also the complainant and going through the record carefully, I do not see any substance in the revision filed by the complainant. Therefore, the same is dismissed and the findings recorded by the learned Additional Sessions Judge, Fast Track Court, Ferozepur, regarding acquittal of the appellants

Criminal Appeal No.S-405-SB of 2004 13 under Sections 307 and 452 of the Indian Penal Code, are upheld. 6th July, 2017 ( RAMENDRA JAIN ) VK JUDGE 1.

Whether speaking/reasoned Yes/No 2.

Whether Reportable Yes/No