Balwinder Singh v. Gaurav Kumar & Ors.

Mr. Sanjiv Gupta, Advocate, for the appellant. SATISH KUMAR MITTAL , J. * * * Complainant Balwinder Singh has filed this application seeking leave to appeal against the judgment of conviction dated 17.4.2009 and order of sentence dated 18.4.2009, passed by Additional Sessions Judge, Kurukshetra, whereby out of the five accused (respondents herein), only two, namely Gaurav Kumar and Mahesh Kumar (respondents No.1 and 2 herein) have been convicted for the commission of offences punishable under Sections 323 and 325 read with section 34 IPC and both of them have been released on probation of good conduct on their entering into a bond in the sum of Rs. 10,000/- with one surety in the like amount each, for a period of one year. The remaining three women accused, namely Neetu, Mohindero and Shashi (respondents No.3, 4 and 5 herein) have been acquitted of the charges framed against them, by giving them the benefit of doubt. Crl. Misc. No. A-661-MA of 2009 -2- We have heard learned counsel for the applicant-complainant and have gone through the impugned judgment and order. In this case, firstly, on the statement made by complainant Balwinder Singh to the Police in the Hospital, an FIR No. 32 dated 1.2.2006 was registered against five accused under Sections 323 and 325 read with Section 34 IPC at Police Station Shahbad. In the said statement, complainant Balwinder Singh stated that his plot is situated adjacent to the plot of Harish Kumar (father of accused Gaurav Kumar and Mahesh Kumar). When accused Gaurav Kumar started raising construction of a wall on the plot of the complainant, he raised objection to it. On that, accused Gaurav Kumar said that the plot belongs to him. While saying so, on getting enraged, he gave a lathi blow on the left leg of the complainant. In the meantime, his brother Mahesh Kumar accused also came at the spot with an axe in his hand. He gave an axe blow from reverse side on the nose of the complainant. On hearing the noise, accused Neetu (sister of accused Gaurav Kumar and Mahesh Kumar) came there with a lathi and gave lathi blows on the arms and legs of the complainant. On hearing the scream of the complainant, his wife Kuljit Kaur came on the spot, but she was also caught hold of by her hair by accused Mohindero and Shashi (mother and wife, respectively, of accused Mahesh Kumar). She was assaulted with danda, which hit on her left hand. She was also dragged by her hair. On hearing the noise, one Happy (cousin of the complainant) came on the spot and he along with one Rama rescued the complainant and his wife from the clutches of Crl. Misc. No. A-661-MA of 2009 -3- the accused persons, who later on fled away from the spot. During investigation in the aforesaid FIR, the police filed challan only against accused Gaurav Kumar and Mahesh Kumar and the remaining three accused were found innocent. On presentation of the said challan, accused Gaurav Kumar and Mahesh Kumar were charge sheeted for commission of the offences punishable under Sections 323 and 325 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. It is pertinent to mention here that after lodging of the aforesaid FIR, on 6.3.2006, the complainant filed a private complaint against all the five accused for the above said occurrence, wherein vide order dated

15.9.2006, the court of Additional Chief Judicial Magistrate, Kurukshetra, summoned them for the commission of offences punishable under Sections 323, 325, 307 and 447 read with Section 149 IPC and thereafter, vide order dated 21.2.2007, the said complaint case was committed to the Court of Sessions. When the aforesaid State case was pending for evidence of the prosecution, the complainant moved an application to transfer the State case to the court of Sessions, where the complaint case filed by him was being tried. It is also relevant to mention here that in the said State case, a cross case was also registered against complainant Balwinder Singh in respect of the injuries suffered by accused Gaurav Kumar. In the cross case, charge for the commission of offences punishable under Sections 323 and 324 IPC was also framed against Balwinder Singh and the said cross case Crl. Misc. No. A-661-MA of 2009 -4- has also been referred for simultaneous decision along with the complaint case. Vide the impugned judgment, learned trial court has decided all the aforesaid three cases, simultaneously. In order to prove his case, the complainant examined six witnesses. As per the medical evidence, in the alleged occurrence, the complainant received four injuries, out of which injury No.1 was a lacerated wound measuring 1 x 1 x 5 cms. on the bridge of the nose. The said injury, which was opined to be grievous in nature, was caused by accused Mahesh Kumar. Rest of the injuries were diffused swellings, which were simple in nature. As far as Kuljit Kaur is concerned, only one injury was found on her person, which was caused with blunt weapon and was simple in nature. Complainant Balwinder Singh examined himself as PW.4 and his wife Kuljit Kaur was examined as PW.5 being injured eye witness. However, the complainant neither in the complaint nor in the court explained the injuries received by accused Gaurav Kumar. The trial court, while taking into consideration their testimonies as well as the other evidence, including the defence taken by the accused, has come to the conclusion that in the instant case, the prosecution has proved the involvement of accused Gaurav Kumar and Mahesh Kumar only and that too only to the extent of commission of offences punishable under Sections 323 and 325 read with Section 34 IPC. Regarding the three lady accused, namely Neetu, Mohindero and Shashi, it has been found that they Crl. Misc. No. A-661-MA of 2009 -5- were not involved in the occurrence and they were rightly found innocent by the investigating agency. It has been further observed that the charge under Section 307 IPC has not been established by the complainant, as only one axe blow and that too from the reverse side was given on the nose of the complainant, which could not have been caused with intention to kill him. It has been further observed that it was not the accused party, who was aggressor and who indulged into the assault, but it was the complainant who himself had gone to accused Gaurav Kumar and asked him not to raise a wall at the given site and also caused injuries to Gaurav Kumar, which were not explained. It has come in evidence, as admitted by the complainant, that the accused party has purchased the plot and no partition had taken place between them. Taking into consideration these facts, it has been found by the trial court that the complainant party was the aggressor and there was no intention of accused Mahesh Kumar to kill the complainant. Keeping in view these findings, accused Gaurav Kumar and Mahesh Kumar have been convicted for the commission of offences punishable under Sections 323 and 325 read with Section 34 IPC, as complainant Balwinder Singh is proved to have suffered simple and grievous injuries with blunt weapon. It has been found that in the complaint, material improvements have been made by the complainant in his version, as to his first statement made to the police. The said improvements were made with due deliberations and manipulation, as the complaint was filed on 6.3.2006, much later after the first version to the police. Keeping in view all these factors, the trial court Crl. Misc. No. A-661-MA of 2009 -6- has convicted only two accused and acquitted the remaining three. We do not find any illegality or perversity in the impugned judgment passed by the trial court. In our view, the trial court has rightly taken the view that only two persons were involved in the occurrence and they have caused the injuries, which are punishable under Sections 323 and 325 read with Section 34 IPC. We have also gone through the order of sentence, whereby accused Gaurav Kumar and Mahesh Kumar have been released on probation of good conduct on their entering into a bond in the sum of Rs. 10,000/- with one surety in the like amount each, for a period of one year. We also do not find any illegality in the same. In view of the above, we are of the opinion that the applicant- complainant Balwinder Singh has not been able to make out a case for grant of leave to appeal. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE February 15, 2010 ( JORA SINGH ) JUDGE