Baljinder Singh @ Babbi and Others vs State of Punjab

A.N. Jindal, J.—Jeet Singh, his son Baljinder Singh and wife Mohinder Kaur were prosecuted for attempting to commit murder of Bakshish Singh complainant (herein referred as ''the complainant''). Consequently, all the three accused were tried, convicted vide judgment dated 28.2.2000 passed by the learned Additional Sessions Judge, Patiala, and sentenced as under:

Baljinder Singh @ Babbi

U/s 307 IPC: Rigorous imprisonment for six years and to pay fine of Rs. 1000/-.

Jeet Singh and Mohinder Kaur

U/s 307/34 IPC: Rigorous imprisonment for three years and to pay fine of Rs. 1000/- each.

In nutshell, the prosecution version is that the complainant has been working as Sewadar at Sant Ashram, Dhablan. On 28.6.1994, at about 10.00 a.m. his wife Balbir Kaur had gone to lock the plot belonging to his uncle Darshan Singh, where Baljinder Singh alias Babbi and his father Jeet Singh started quarrelling with his wife and abused her. In the meantime, Mohinder Kaur came and caught hold of his wife from her hair. The complainant also arrived there. Jeet Singh caught hold of him by his hair and Baljinder Singh alias Babbi gave fist blows in his abdomen, whereupon, he became unconscious and fell down on the heap of cow dung. The hue and cry raised by them attracted Hardev Singh. Consequently, Hardev Singh and Balbir Kaur took him to the Rajindra Hospital, Patiala. On his statement case was registered against all the aforesaid accused persons and was investigated. Investigating Officer collected the M.L.R; recorded statements of the witnesses; prepared rough site plan and completion of the investigation was followed by a report u/s 173 Cr.P.C.

Charge u/s 307 read with Section 34 IPC was framed against the accused to which they pleaded not guilty and opted to contest.

In order to substantiate the charges, the prosecution examined Dr. Sukhcharan Singh (PW1), Dr. Rakesh Kumar Goel (PW2), SI Ajmer Singh (PW3), HC Joginder Singh No. 1976 (PW4), ASI Jagdish Chand (PW5), Darshan Singh (PW6), Bakshish Singh complainant (PW7), Balbir Kaur (PW8), Chanan Singh Draftsman (PW9), ASI Pawan Kumar (PW10) and Hakam Singh Wireless Operator (PW11).

When examined u/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Mohinder Kaur and Baljinder Singh alias Babbi took the identical pleas. The plea taken by the accused Baljinder Singh alias Babbi is reproduced as under:

Darshan Singh through his relation Bakshish Singh has been pressurizing my father to vacate the house in question. My father resisted to it. I and my mother and father have been falsely implicated in the case. I and my mother were not present at the time of alleged occurrence. I am innocent.

Accused Jeet Singh further explained as under:

I was in possession of the house in question as tenant thereof and used to run dairy in the house in dispute. I used to tether buffalos etc. in the court yard of the house and the room situated in it were used by us for the residential purpose. Darshan Singh and his relative Bakshish Singh wanted us to vacate the house. I did not agree to this proposal . On the day of occurrence, Bakshish Singh accompanied by numerous persons came to the property in question to take forcible possession from me. They wanted to put lock on the property and I prevented them from doing so and raised hue and cry which attracted many people. All of them resisted to this act of Bakshish Singh. In this process, Bakshish Singh fell down and may have received the injuries. The complainant party was the aggressor. They criminally trespassed in the house in my possession as tenant and committed mischief by making efforts to lock the property in question. I being the tenant have every right to save my possession. My wife and son were not present at the time of the alleged occurrence. The complainant party in order to save them from criminal liability falsely implicated all of us in this case. The police had proceeded u/s 107/151 Cr.P.C. against me in which I have already been discharged.

In defence, the accused examined Daya Singh (DW1).

The trial ended in conviction.

Arguments heard. Record perused.

The prime argument raised by the learned Counsel for the appellants, in the instant case, is that the testimonies of the witnesses do not inspire confidence and the prosecution version was concocted after 12 days.

In this regard, it may be noticed that the occurrence took place on 28.6.1994 and on that very day, the statement Ex.PL of the complainant was recorded by HC Baljinder Singh. Due to the non availability of the complete medical record and the specific opinion with regard to the nature of the injury, D.D.R. was entered stating that no cognizable offence was made out. Since the injury was in the abdomen, therefore, it required surgeon''s opinion. In any case, Dr. Sukhcharan Singh Brar (PW1) wasted no time to examine Bakshish Singh as he examined him on that very day at 2.50 p.m. and found the following injuries on his person:

Pain and tenderness in the abdomen. Patient gave history of blunt injuries abdomen. No external injury was seen. Pain increases on lying down. Distention abdomen with gaurding was present. Advised Surgeon''s opinion and x-ray.

After seeing the x-ray examination, Dr. Sukhcharan Singh Brar (PW1) vide his report Ex.PB/1 declared the said injury as dangerous to life. On the basis of the said report, FIR was immediately recorded u/s 307/34 IPC on 8.7.1994. As such, no delay could be said to have been caused in recording the FIR in the present case. The contents of the FIR are in consonance with the facts as recorded in the D.D.R. recorded on the day of occurrence. As such, the delay in the aforesaid circumstances of the case does not in any way effect the prosecution case. The present case is not based on the FIR alone, but it has been submitted by the prosecution witnesses namely Bakshish Singh (PW7) and his wife Balbir Kaur (PW8). Their testimonies stand corroborated by Dr. Sukhcharan Singh Brar (PW1) who medico-legally examined the injured and opined about the nature of injury. Dr. Rakesh Kumar (PW2) is also a significant witness, who not only declared Bakshish Singh fit to make the statement, however, he admitted him in the Ward No. 2 with an injury in the abdomen due to assault and had operated him and recorded operation notes Ex.PD/1 in the bed head ticket Ex.PD. Both the witnesses are quite consistent in their statements and despite the lengthy cross examination conducted upon them, they had withstood the test of reliability and trustworthiness. Notwithstanding the fact that Darshan Singh (PW5) was an independent witness to support the version, yet, his testimony cannot be taken into consideration for want of opportunity to the accused to cross examine him.

As regards the motive part, though the testimony of Darshan Singh (PW6) could not be availed as he was not tendered for cross examination, yet, Daya Singh (DW1) has not denied about the dispute in question. Assuming for the sake of arguments that Jeet Singh was in possession as disclosed by Daya Singh as tenant and the complainant had gone there to lock the premises, yet the accused could not take the law in their hands and attack him and his wife. But, Daya Singh has not denied that Darshan Singh had rented out the house to Jeet Singh and he was asking to get the house vacated from the later, however, Jeet Sigh was resisting the request. Thus, the story appears to be quite probable and when the complainant had gone to lock the premises the accused came and gave beatings to him.

As regards the argument that the witnesses examined by the prosecution are interested one, does not cut much ice. The complainant himself was the injured witness and presence of Balbir Kaur, in the given circumstances of the case, cannot be denied, therefore, both of them being the best witnesses to expose the truth cannot be said to be interested in the success of the case. It has come in evidence that Jeet Singh had been throwing cow dung in the premises in question. It has also come in the evidence of the witnesses that the complainant had fallen over the heap of cow dung after receiving injuries and his clothes had got swelled down, that also goes a long way to prove that the occurrence did take place in the manner as depicted by the prosecution.

Faced with the situation, learned Counsel for the appellants has to make another limb of argument that from the nature of the injuries allegedly caused by Baljinder Singh alias Babbi, no offence u/s 307 IPC is made out.

Having pondered over the contention, the same sans merit. Dr. Sukhcharan Singh Brar (PW1) has disclosed about the nature of the injury in the abdomen, Dr. Rakesh Kumar Goel (PW2), who had explored the injury and operated upon him for the injury recorded the operation notes Ex.PD/1 in the bed head ticket Ex.PD, wherein, he mentioned that "there was about 500 CC blood in peritoneum cavity which was moped out. There was a haematoma in the transverse mesocotonnean splentic flexure. There were two tears about 2" each in the medial aspect of spleen above the hilum. Tear was superficial and there was no active bleeding." After examining the operation notes, Dr. Sukhcharan Singh Brar (PW1) has opined vide report Ex.PB/1 that the injury No. 1 was dangerous to life. No meaningful cross examination was conducted suggesting that injured could survive without medical aid for some time. From the nature of the injury it appears that it was a miracle that the injured survived and he would have died but for medical aid.

As such, sufficient evidence appears to have been led by the prosecution in order to bring the case within the purview of Section 307 IPC.

Lastly, learned Counsel for the appellants has made an abortive bid to save the accused Jeet Singh and Mohinder Kaur while urging that their presence at the place of occurrence is doubtful as they did not participate in the commission of the crime and no part is attributed to them.

This argument appears to have some substance. The facts brought forth by the prosecution through the witnesses reveal that first of all plot pertained to Darshan Singh and Bakshish Singh was his nephew and it was under the tenancy of Jeet Singh etc. Bakshish Singh wanted this plot to be vacated. At the very first instance when Balbir Kaur went to lock the plot, first of all Baljinder Singh and his father Jeet Singh caught hold of her. Mohinder Kaur caught hold of Balbir Kaur by her hair. Admittedly, no injury has been attributed to Mohinder Kaur and Jeet Singh. Their presence at the spot is doubtful as Bakshish Singh appears to have made some improvements in his statement Ex.PL qua their presence at the spot. It has been stated that Mohinder Kaur caught hold of Balbir Kaur by her hair, but in the statement in the court he stated that Baljinder Singh alias Babbi and Jeet Singh caught hold of her by her hair. As a matter of fact from the tenor of the statement Ex.PL, the major part is attributed to Baljinder Singh alias Babbi. Nothing has been pointed out from the medical evidence if the hair of Balbir Kaur had been stretched due to catching of the same by Baljinder Singh alias Babbi and Mohinder Kaur. The story with regard to catching Balbir Kaur by Mohinder Kaur from her hair appears to be false. Balbir Kaur was not medically examined. Had she fallen down on the ground, then she must have been suffered some scratches on her body and had she been medically examined then that would have been the best evidence of her participation in the commission of the crime. Any way, all the three accused were un-armed which shows that they had made no meeting of minds to cause such injuries as were likely to cause death or Mohinder Kaur and Jeet Singh knew that Baljinder Singh alias Babbi was to cause such injury which could prove fatal. Had there been meeting of minds, then Mohinder Kaur and Jeet Singh would not have returned without causing any injury to Balbir Kaur and Bakshish Singh. As such, they could not be said to have shared common intention with Baljinder Singh alias Babbi. Not only this, the presence of Mohinder Kaur and Jeet Singh is doubtful, as such, they could well be extended benefit of doubt. This aspect of the case has not been taken into consideration by the trial court. Even the judgment is not based on proper appreciation of the evidence qua the interpretation of the common intention, so far as it concerns Mohinder Kaur and Jeet Singh. As such, interference at my end has become inevitable.

Resultantly, I partly allow this appeal, set aside the impugned judgment qua Jeet Singh and Mohinder Kaur, acquit them of the charges framed against them and direct that they be set at liberty forthwith. Bail bonds and surety bonds furnished by them shall stand discharged. Fine, if any deposited by them be refunded. However, the appeal qua Baljinder Singh alias Babbi is dismissed with the modification in the sentence which is reduced to five years without alteration in the sentence of fine.

Copy of the judgment be sent to the Chief Judicial Magistrate, Patiala, for compliance.