Sher Gir vs State of Punjab

J. B. Garg, J.

Sher Gir has been convicted for an offence under Section 307 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of three years and required to pay a fine of Rs. 500/. In default of payment of fine, he was required to undergo RI for a further period of two months. Udal Gir and Jarnail Gir, other two accused have been convicted under Section 307/34 of the IPC and sentenced to RI for a period of three years and required to pay a fine of Rs. 500/ each and in default of payment of fine, they were required to undergo RI for a further period of two months. Besides this, accused have also been convicted under Section 324 read with Section 34 of the IPC and required to undergo rigorous imprisonment for a period of one year. The sentences were to run concurrently. Aggrieved against this judgment of Shri S. S. Chahal, Additional Sessions Judge, Patiala, dated 25111988, present appeal has been preferred.

Briefly, the story of the prosecution is that at 9.00 or 10.00 P.M. on 1.11.1986 Sher Gir, Udal Gir, Ishar Gir, Ram Het, Jarnail Gir, Kashmiri Bharti, Bishan Bharti and, Nand Bharti armed with Gandasis and Lathis came in front of the house of Karnail Puri and raised LALKARAS that he would not be spared. Karnail Puri and his companions came out of their house and thereafter Sher Gir accused is alleged to have caused a Gandasi blow from the sharp side on the head of Karnail Puri. Udal Gir accused also gave a Gandasi below from sharp side on the head of Karnail Puri and Jarnail Gir accused gave a Gandasi blow on the right side of cheek of Kernail Puri. Nand Bharti accused is alleged to have caused a Gandasi blow on the right thigh of Karnail. Puri and Ishar Giri gave a lathi blow on the upper side of right ankle of Karnail Puri. Bishan Bharti and Kashmiri Bharti are alleged to have hurled brick bats towards Mohinder Puri hitting him on his right arm. The occurrence was seen by Mohinder Puri, who had come forward to rescue Karnail Puri. Karnail Puri and Mohinder Puri were thereafter taken to A. P. Jain Hospital, Rajpura where they were medico legally examined by the Medical Officer and subsequently Karnali Puri was also referred to Rajindra Hospital, Patiala. The statement of Kishan Puri was recorded by. Barma Nand, ASI.

There is another important aspect of this case that Kashmiri Bharti, one of the accused, who had received injuries from the complainant side, had already reached Police Station, Rajpura and lodged a report mentioning that the complainants in this case were the aggressors.

PW1 Dr. Vinod Singla, Medical Officer of A P. Jain Hospital, Rajpura examined Karnali Puri at 1. 45 AM on 2111986 and the injuries found on his person were as under :

1) An incised wound 7.5 cm. x 2.5 cm in the frontal region of scalp right to the midline. The underlying bone was cut. Few cut hair and a chip of bone was lying loose in the wound. Clotted blood was present in and around the wound.

2) An incised wound 2.5 cm x 0.5 cm in the right parietal region of scalp. Muscle deep. Clotted blood was present in and around the wound.

3) An incised wound 3 cm x 0.5 cm on the right chest cutting it obliquely. Skin deep.

4) An abrasion on the front of right thigh in about its middle.

5) A small lacerated wound on the medial side of right leg on the lower part.

As regards the nature of injury No. 1, in the beginning this Medical Officer deposed that it was dangerous but in the crossexamination he deposed that a Surgeon could be a better person to opine whether injury No. 1 on the person of Karnali Puri was dangerous or not. He has specifically stated that no Xray skiagram was seen by him with regard to injury No. 1.

PW2 Dr. Ram Kumar, Registrar, Surgery Department Rajindra Hospital, Patiala deposed that he could not say about the nature of injury No. 1 on the person of Karnali Puri whether it would be dangerous to life or not. However, in later part of his crossexamination he has deposed that the cut in the scalp of Karnali Puri could not be fatal.

PW9 Shri Parma Nand, ASI, the Investigating Officer has deposed that Karnail Puri, complainant, is also a constable in the police department. He noticed that brick bats and bricks were lying in the courtyard of Nand Bharti. He has also stated that the site of occurrence was in the street. He has denied that the complainant party met him prior to 21186 and they wanted to implicate Sher Gir and according to the desire of the complainants, Sher Gir was implicated falsely. The Investigating Officer has admitted that he has been convicted and sentenced in a case under the Prevention of Corruption Act which was registered at Ludhiana. He has also admitted that he has been compulsorily retired.

DW1 Dr. D.R. Gupta, the then Senior Medical Officer of A.P. Jain Hospital, Rajpura noticed grievous injury on the person of Kashmiri Bharti and it is described as under :

"1. There was fracture of lower end of left humorous bone."

He also examined Nand Bharti and a grievous injury on his person was as under :

"There was fracture of ninth and tenth ribs of right side of chest."

Though the story of the prosecution has been supported by PW7 Karnail Puri and PW8 Kishan Puri, yet their evidence requires scrutiny in as much as the important pleas taken up learned counsel for the appellants are that the occurrence did not take place at the premises of the complaints it was a case of free fight and accused Sher Gir is in fact a police employee and, was on duty and not present at the time of occurrence and he has been falsely implicated. Besides this another important plea is that Kashmiri Bharti and Bishan Bharti, though acquitted, yet grievous injuries on their persons have not been explained by the prosecution. A perusal of statement of PW8 Kishan Puri indicates as if the occurrence had taken place in the street. The version of this independent witness that they were not having any arm at the time of occurrence, is falsified by the fact that two of the accused, Kashmiri Bharti and Nand Bharti, had received grievous injuries. The statement of this independent witness that he did not see any injury on the persons of Kashmiri Bharti and Nand Bharti is not believable and the learned counsel for the appellants has rightly laid stress on the plea that genesis of the occurrence was not disclosed and in this regard reference has been made to Harbans Singh v. State of Punjab and another, 1987(2) Recent Criminal Reports 408 .

DW4 Kalyan Singh, Head Constable has deposed that Sher Gir, accused in this case, was posted in the CIA Staff, Rajpura on 11111985 as Head constable and Sher Gir along with Labh Singh and Raj Kishan, constables was sent for patrol duly by Karnail Singh, ASI vide DDR No. 5 under the instructions of Deputy Superintendent of Police, Rajpura. DW5 Raj Kishan, constable has also deposed that Sher Gir was on patrol duty along with him on 1111986.

In this case injury No. 1 has been attributed to Sher Gir, accused and a perusal of defence evidence creates a doubt about his presence. The probability that the complainants were aggressors or that it was a case of free fight in an open street, was overlooked by the learned trial Court, though it had acquitted two of the accused, namely, Kashmiri Bharti and Bishan Bharti, who had injuries on their persons. The presence of brick bats in the street is also an admitted fact.

In this case also blood stained earth was not found and an attempt was made by the prosecution to shift the place of occurrence. In this regard reliance has been placed upon State of Punjab v. Sucha Singh & ors., 1973 Criminal Appeals Reporter 393 (SC) where acquittal in a case under Sections 307/324/148/149 of the IPC was upheld.

The absence of a plausible explanation for the injuries caused by the prosecution witnesses to some of the accused was a circumstance which went against the prosecution in Jagir Singh v. State of Punjab, 1984(1) Recent Criminal Reports 347 : 1984(1) C.L.R. 526 , referred to by the learned counsel for the appellants.

In Karam Singh and another v. The State of Punjab, 1974 C.L.R. 148, the injuries were found on the persons of accused and that remained unexplained, origin of the fight was not well established from the evidence; acquittal was ordered by the High Court.

Any authority to the contrary has not been referred to before me.

The conclusion is that the case against the accused appellant as put forward by the prosecution is not free from doubt. The appeal is hereby accepted conviction is set aside and accused are acquitted.