Criminal Appeal No. 1559-SB of 2002 v. State of Haryana & Ors.

HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Vikas Kumar, Advocate, for the appellants-revisionist. Mr. B.S. Saini, Sr. DAG, Haryana, for the respondent-State. NAWAB SINGH.J. This judgment would dispose of above named three cases bearing Criminal Appeal No. 1559-SB of 2002 and Criminal Revisions No. 2192-93 of 2002 as they have arisen out of one occurrence dated August 8th, 1997. Criminal Appeal No. 1559-SB of 2002 2

2. Under First Information Report No. 833 dated August 8th, 1997 registered in Police Station N.I.T, Faridabad, two separate challans were filed. In the first challan, Varinder, Bijender alias Vijay, Narender alias Nindey, Surinder and Narain were arraigned as accused. Allegations against them were that on August 8th, 1997 at about 9.45 AM, they, armed with lathi and iron rods, formed an unlawful assembly and in prosecution of common object thereof, caused injuries to Tej Pal, Jagdish and Nirbhey (Appellants- revisionists herein). Jagdish received injury on the head at the hands of accused Bijender alias Bindey. Accused Surinder grappled with Tej Pal and then Narender allias Ninde gave blow with iron rod on the head of Tej Pal. Accused Bijender gave iron rod blow on the left shoulder of Jagdish near the clavical bone thrustwise. Lalkara was raised by Jagdish etc. and some passersby collected there. Brick bats were also thrown on the complainant party.

3. Per second challan, on August 8th, 1997 at about 9 AM when Bijender and Narender who were brothers inter-se reached near the Octroi Post of Mewla Maharajpur, Tej Pal, Jagdish, Nirbhey (appellants), Attar Singh and Ved Pal came there armed with iron rods and lathis. Accused raised lalkara that Bijender and Narender be caught hold and killed. Bijender and Narender tried to run away but Attar Singh and Ved Pal caught hold of them. Accused Nirbhey and Tej Pal were armed with iron rods and with their respective weapons inflicted injuries on the head and left hand of Bijender. Jai Bhagwan accused gave lathi blow on the head of Narender and also gave a blow on his hand. An alarm was raised by them which attracted Sattey and Dharmender who came to their rescue.

4. Narain, Bijender and Narender were examined by Dr. S.K. Mittal in B.K. Hospital, Faridabad. Jagdish was further examined by Dr. Alok Gupta, Neuro Surgeon of Escorts Medical Centre.

5. On conclusion of trial, learned trial Judge passed separate judgments dated August 29th, 2002 in Sessions case No.62 and 62-A of April 24th, 2002. Criminal Appeal No. 1559-SB of 2002 3

6. In Sessions case No.62, Varinder alias Bindey, Surinder and Narain were acquitted whereas accused Bijender alias Vijay and Narender alias Nindey were convicted for the offences under Sections 325 and 323 IPC respectively and were ordered to be released on probation.

7. In Sessions case No. 62-A, Attar Singh and Ved Pal were acquitted and accused Tej Pal was convicted for the offence under Section 325 IPC whereas accused Jagdish and Nirbhey were convicted for the offence under Section 323 IPC. They were ordered to be released on probation.

8. By filing Criminal Appeal No. 1559-SB of 2002, appellants have challenged their conviction under Sections 323 and 325 IPC releasing them on probation.

9. Criminal Revision Petitions No. 2192 and 2193 of 2002 have been filed challenging the acquittal of Varinder, Surinder and Narain and conviction of Bijender alias Vijay and Narender alias Nindey under Sections 323 and 325 IPC and their release on probation on the ground that they committed offence falling under the mischief of Section 307 IPC.

10. The first and foremost argument put forth by learned counsel for the revisionist is that as the injury suffered by Jagdish-injured was declared dangerous to life by Dr. Raina (PW-15) and the same was given by Bijender alias Vijay so, the trial Court fell in error in acquitting him for the offence under Section 307 IPC and convicting him under Section 325 IPC and the remaining accused also in prosecution of their common object caused injuries to injured and hence they should have also been convicted under Section 307 read with Section 149 IPC.

11. Jagdish injured was medico legally examined on August 8th, 1997 in Escorts Hospital, Faridabad. The Doctor found following injury on his person:- “Contused lacerated wound of the size of 2” long over middle of scalp. The edges were smooth and bleeding was present. X-ray examination was Criminal Appeal No. 1559-SB of 2002 4 advised and the injury was kept under observation.”

12. Subsequently, this injury was declared dangerous to life. With regard to it, the learned Additional Sessions Judge in paragraphs No.30, 31 and 32 of the judgment observed as under:- “30. PW-15 Dr. Raina, medico-legally examined Jagdish and observed a contused lacerated wound of 2 inches length with smooth edges and bleeding. X-ray examination was advised and the injury according to him was caused by blunt weapon. The copy of the medico- legal report is Ex.PC. This was the only injury on the person of the said injured and it was in respect of this injury being declared dangerous that charge is respect of offence u/s 307 IPC was framed.

31. Section 320 IPC describes grievous hurt and per clause eighthly of the said section any hurt which endangers life would tantamount to grievous hurt.

32. The offence of attempt to murder u/s 307 IPC can be said to have been committed only when an act was done with intention or knowledge only under such circumstances that if by that act death was caused the person committing the act would have been guilty of murder u/s 302 IPC. The offence of murder has been defined u/s 300 IPC. While the offence of culpable homicide not amounting to murder has been defined u/s 299 IPC. If the act was such that if it had caused the death, it would have amounted to murder u/s 300 and Section 302 IPC, then only Section 307 IPC will be attracted if the victim survives. If the act was such that had it resulted into death, it would have tantamount to culpable homicide not amounting to Criminal Appeal No. 1559-SB of 2002 5 murder u/s 299 IPC, Section 308 IPC would be attracted if the victim survives. The injury on the person of PW-1 Jagdish was described to be dangerous to life. The opinion was never qualified that the injury would have been sufficient to cause death in the ordinary course of nature if proper and immediate medical aid was not given. Learned Public Prosecutor has relied upon Buta Singh vs. State of Punjab 1998 (1) RCR 292 and Gurcharan Singh vs. State of Punjab 1998 (1) RCR 276. In Buta Singh's case Supra a sickle blow was given on the neck of the victim and accused gave second blow which was warded off by the victim. Instant case is at a different footing, in so far as only one injury was aimed at and given to PW1 Jagdish. There is no evidence of any other injury being given or even attempted on him. This is a glaring circumstance which gives a peep into the intentions of the accused which is a very material consideration. In Gurcharan Singh's case Supra fourteen injuries were caused, out of which four were grievous. It needs to be highlighted again that no second blow was attempted on the person of PW-1 Jagdish in the instant case. Although there was fracture of bone, yet the injury on his person was not such as would have given rise to offence of murder if the victim had died.”

13. Learned trial Judge after taking into consideration the nature of the injuries on the person of Jagdish and the law cited on the point at issue held “that the injury in question on the person of PW-1 Jagdish was grievous hurt u/s 320 clause 8thly of the IPC and it was not a case of attempt to murder or attempt to commit culpable homicide not amounting to murder. The injury has been opined to Criminal Appeal No. 1559-SB of 2002 6 have been even caused by brick bat as admitted by doctor concerned. The act of causing this injury would, therefore, amount to offence u/s 325 IPC. As observed earlier this injury has been attributed to accused Vijay @ Bijender.”

14. In view of the observation of the learned trial Judge, the injury on the person of Jagdish does not fall under Section 307 IPC. This being so, the argument of the learned counsel for the revisionists is devoid of merit and is, therefore, repelled.

15. So far as involvement of Varinder alias Bindey, Surinder and Narain is concerned, a perusal of evidence shows that it was a case of free fight and in view of that, the particular persons would only be liable for their individual acts. Active participation of the above said three accused could not be established by the prosecution and as such, they were rightly acquitted by the learned Additional Sessions Judge.

16. Tej Pal and Nirbhey caused injuries to Bijender and Jai Bhagwan alias Jagdish caused injuries to Narender. The grievous injury to Bijender was given by Tejpal accused on his left hand. Both the injured were medically examined by Dr. S.K. Mittal (PW-6) who proved the medico-legal reports (Exhibits PE and PF). The injuries attributed to Nirbhey and Jai Bhagwan alias Jagdish were simple in nature. Taking into consideration the injuries caused by these appellants to both the injured viz Bijender and Narinder, the trial Judge convicted Nirbhey and Jagdish for the offence under Section 323 IPC and Tej Pal for the offence under Section 325 IPC acquitting their co-accused Attar Singh and Ved Pal.

17. In view of above, there is no ground to interfere in the aforesaid judgments. Thus, the appeal and the revisions are dismissed.

17.12.2010 SN (NAWAB SINGH) JUDGE