Surinder Pal @ Shindi & Ors. vs State Of Punjab

Mandeep Pannu, J.

The present appeal has been preferred by the appellants against the judgment of conviction and order of sentence dated 15^th December, 2007, passed by learned Special Judge-cum-Additional Sessions Judge, Mansa, vide which all the appellants, along with one Piara Lal, were convicted and sentenced as follows:

Section 427 read R.I. for 01 year each -- --with Section 149 IPC Section 452 read R.I. for 01 year each Rs.1000/- R.I. for 03 months with Section 149 IPC each Section 333 read R.I. for 02 years each Rs.1000/- R.I. for 03 months with Section 149 IPC each Section 332 read R.I. for 01 year each -- --with Section 149 IPC in respect of causing hurt to Jai Chand Parinda, Naib Tehsildar, to deter him from his duty Section 332 read R.I. for 01 year each -- --with Section 149 IPC in respect of causing hurt to Jarinder Singh Saggu Tehsildar to deter him from his duty Section 506 read R.I. for 01 year each -- --with Section 149 IPC Section 3 of the R.I. for 02 years each Rs.1000/- R.I. for 03 months Scheduled Castes each and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 149 IPC

Briefly stated, the case of the prosecution is that an application was received from Jatinder Singh Saggu, Tehsildar, wherein it was alleged that on 13^th December, 2001, at about 12:35 p.m., he, along with Jai Chand Parinda, Naib Tehsildar, Mansa, Gurmit Singh, Registration Clerk, Baz Singh, Patwari Halqa Mansa Kalan, and Janta Singh, Reader to Naib Tehsildar, Mansa, went to the Court premises for checking the deed writers. When they asked Satpal, Deed Writer, to show the record, he spoke ill with them. In the meantime, Advocate Vijay Singla, Advocate Jaspal Goel, Ankush Singla, Deed Writer, Piara Lal, Deed Writer, Rajinder Kumar alias Raju, Typist, and Surinder Pal, who runs a shop outside the Court premises, came there and started quarrelling with them. Satpal, Deed Writer, gave a slap to him, as a result of which his turban fell down. It was further alleged that Jaspal Goel caught hold of his beard and his other companions also attacked their party. He and Jai Chand Parinda suffered various injuries. They pulled the hair of his beard. It was further alleged that Jaspal Goel and Vijay Kumar Singla stated that these “chuhrae Chamiar” had been posted there. Following them, the others also started saying that they would teach these “chuharas” how to do the job. However, they and their two companions saved themselves and came into the office. In the meanwhile, all the accused entered his office after breaking the main door, damaged the chair and glass of the table and further tore the record. Satpal and Ankush Singla snatched and took away certain record from his hands, stating that they would set right the brains of these “chuhras”, and went away taking the record with them. After threatening to kill them, they went away from his office. They interfered with their official duties, hurt their religious feelings and further humiliated him and Jai Chand Parinda, who belonged to the Scheduled Caste. They had also snatched the official record and threatened to kill them. On the basis of this application, a formal FIR, Ex.PA, under Sections 353, 186, 452, 382, 427, 332, 333, 506 and 148/149 IPC and Sections 3 and 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was registered. The accused were arrested and, after completion of investigation, challan against them was presented in the Court.

Thereafter, from the perusal of the report under Section 173 Cr.P.C. and the documents attached therewith, and after hearing learned Additional Public Prosecutor for the State and learned counsel for the accused, a prima-facie case punishable under Sections 147, 353/149, 427/149, 452/149, 333/149, 332/149, 506/149 and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, read with Section 149 IPC, was found to be made out against the accused. They were accordingly charged, to which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined PW-1 Dr. Dupinder Kumar, who proved on record five injuries on the person of Jai Chand Parinda. He deposed on oath that the kind of weapon used was blunt in respect of all the injuries. The nature of injuries Nos.1 and 5 was declared to be simple, whereas injury No.2 was declared grievous in nature. He further proved on record three injuries on the person of Jitender Singh and stated that the kind of weapon used was blunt in respect of all the three injuries and further deposed that all the injuries were simple in nature.

PW-2 Tarlok Singh, Clerk, proved on record the transfer orders of Jitender Singh Saggu, Tehsildar, and Jai Chand Parinda, Naib Tehsildar, as Ex.PG and Ex.PH, respectively. He also proved on record the Scheduled Caste certificate, Ex.PJ, of Jai Chand Parinda. PW-3 Baz Singh, Patwari, did not support the case of the prosecution and was declared hostile. He stated that on the date of occurrence, i.e 13^th December, 2001, no such occurrence had taken place in his presence. Similarly, PW-4 Gurmeet Singh, Registration Clerk, and PW-5 Gurjant Singh alias Janta Singh were also declared hostile, as they did not support the case of the prosecution.

PW-6 Dr. Sharad Kumar, Medical Officer, stated that on 14^th December, 2001, he was posted as Medical Officer at Primary Health Centre, Budhlada, and on that day he conducted X-ray examination of injured Jai Chand Parinda and injured Jitender Singh and proved on record their reports. PW-7 HC Darshan Singh proved on record the deposit of the case property of the present case. PW-8 Inspector Harinderpal Singh, Investigating Officer, proved on record various documents and deposed that further investigation was conducted by DSP Mukand Singh. PW-9 Jai Chand Parinda, injured, unfolded the prosecution story as stated by him before the Investigating Officer. PW-10 ASI Jagdish Kumar deposed regarding the admission of Satpal in Civil Hospital, Mansa, and recording of his statement. He stated that as the offence was non-cognizable, he returned to the Police Station and recorded DDR No.17 dated 13^th December, 2001, Ex.P7. He further deposed regarding recording of the statements of the other injured, namely Jitender Singh and Jai Chand Parinda. Thereafter, the prosecution closed its evidence.

Thereafter, statements of the accused were recorded under Section 313 Cr.P.C., wherein they denied the allegations levelled against them and pleaded false implication. In their defence, the accused examined DW-1 Avtar Singh, Clerk, DC Office, Mansa, and tendered documents Ex.D1 to Ex. D11.

Thereafter, learned Special Judge-cum-Additional Sessions Judge, Mansa, heard the arguments advanced by learned APP for the State and learned defence counsel and, upon appreciation of the evidence on record, held the accused guilty and convicted them under Sections 147, 353/149, 427/149, 452/149, 333/149, 332/149 and 506/149 IPC, and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, read with Section 149 IPC.

Aggrieved by the above-said judgment of conviction and quantum of sentence, as detailed in paragraph No.1 of this judgment, the present appeal has been preferred by the four accused. The fifth accused, namely Piara Lal, had filed a separate appeal, i.e CRA-S No.58-SB of 2008; however, the said appeal stood abated qua him, as he died during the pendency of the said appeal.

Learned A.A.G., Punjab, has appeared on behalf of the State and opposed and contested the present appeal.

Learned counsel for the appellants assailed the judgment of conviction firstly on the ground that the complainant, namely Jitender Singh Saggu, Tehsildar, on whose written application the FIR was registered, has not been examined by the prosecution, which, according to learned counsel, is fatal to the case of the prosecution. It was further contended that the Investigating Officer, namely DSP Mukand Singh, who admittedly conducted the further investigation, has also not been examined, thereby depriving the appellants of an opportunity to test the manner in which the investigation was conducted.

On the other hand, learned State counsel has supported the judgment of learned trial Court and submitted that mere non-examination of the complainant or the Investigating Officer is not fatal to the prosecution, particularly when the prosecution case is otherwise supported by the testimony of the injured witness and the medical evidence on record.

Having considered the rival submissions, this Court finds no merit in the contention. It is true that Jitender Singh Saggu, Tehsildar, who submitted the written application forming the basis of the FIR, has not been examined. However, the prosecution case is not founded solely upon his statement. PW-9 Jai Chand Parinda is himself an injured witness and has entered the witness-box and supported the prosecution version regarding the occurrence. His presence at the spot stands corroborated by the injuries suffered by him, including the grievous injury, and his testimony finds material corroboration from the medical evidence. Despite lengthy cross-examination, learned defence counsel has not been able to elicit anything material in favour of accused or to discredit his testimony in any manner. His testimony, therefore, inspires confidence and remains unshaken on material particulars, i.e regarding sustaining of injuries by him. The mere non-examination of the complainant, therefore, cannot be said to be fatal to the prosecution case.

Learned counsel for the appellants further contended that the material witnesses examined by the prosecution had not supported its case. It was submitted that PW-3 Baz Singh, PW-4 Gurmit Singh and PW-5 Gurjant Singh @ Janta Singh had been declared hostile and had not supported the prosecution version with regard to the occurrence. According to learned counsel, in the absence of corroboration from these witnesses, the conviction of the appellants on the basis of the statement of PW-9 Jai Chand Parinda alone was unsafe, particularly when the other material witness, namely, Jatinder Singh Saggu, Tehsildar, had also not been examined by the prosecution.

Per contra, learned State counsel submitted that merely because some of the prosecution witnesses had turned hostile, the otherwise reliable testimony of PW-9 Jai Chand Parinda could not be discarded. It was submitted that PW-9 was himself an injured witness and his presence at the spot stood established from the injuries sustained by him, which were duly corroborated by the medical evidence. Learned State counsel further submitted that there is no requirement in law that a conviction must necessarily be based upon the testimony of more than one witness and that the testimony of a solitary injured witness, if found reliable and trustworthy, is sufficient to sustain a conviction.

This Court finds substance in the submission of learned State counsel. The fact that PW-3 Baz Singh, PW-4 Gurmit Singh and PW-5 Gurjant Singh @ Janta Singh did not support the prosecution case and were declared hostile, by itself, cannot be a ground to discard the testimony of PW-9 Jai Chand Parinda. It is well settled that the conviction can be based upon the testimony of a solitary witness, provided his testimony is found to be cogent, reliable and trustworthy. In the present case, PW-9 is not only an eyewitness but also an injured witness. His presence at the place of occurrence is thus established and his testimony finds material corroboration from the medical evidence. His version with regard to the occurrence and the role attributed to the accused has remained substantially consistent. Therefore, merely because the other witnesses did not support the prosecution case, the testimony of PW-9 cannot be discarded. The statement of an injured witness, if otherwise found trustworthy, is sufficient to form the basis of conviction.

Similarly, the mere non-examination of DSP Mukand Singh, who conducted the further investigation, cannot by itself result in acquittal unless the appellants are able to demonstrate prejudice caused to them on account of his non-examination. No such specific prejudice has been demonstrated. The evidence of PW-8 Inspector Harinderpal Singh establishes that further investigation was conducted by DSP Mukand Singh, and the substantive evidence regarding the occurrence is available on record through the injured witness. Thus, non-examination of the complainant as well as the Investigating Officer, in the facts and circumstances of the present case, does not render the prosecution case doubtful.

Learned counsel for the appellants has next assailed the prosecution case on the ground that the X-ray report regarding the fracture suffered by Jai Chand Parinda is doubtful and has been procured only with a view to exaggerate the injuries. It has been argued that although Jai Chand Parinda was initially taken to Civil Hospital, Mansa, he was, thereafter, allegedly referred to PHC, Budhlada, which was a smaller health centre, and PW-6 Dr. Sharad Kumar admitted in his cross-examination that the injured persons came to him directly, were not accompanied by any police official, and no police papers or referral slip were produced before him. It was, therefore, contended that the alleged fracture was subsequently introduced in the medical record.

On the other hand, learned State counsel has submitted that PW-6 is an independent medical officer who conducted the X-ray examination and categorically found fracture of the anterior end of the first rib on the right side of Jai Chand. He brought the original X-ray register to the Court and proved the report, and there is no material on record to suggest fabrication or manipulation of the medical evidence.

This Court finds no sufficient basis to accept the contention of learned counsel for the appellants. PW-6 Dr. Sharad Kumar has categorically deposed that he conducted the X-ray examination of Jai Chand Parinda on 14^th December, 2001 and the X-ray chest P.A. view showed fracture of the anterior end of the first rib on the right side. He also produced the original X-ray register and identified the report. The fact that the injured persons were not accompanied by a police official or that police papers were not placed before the doctor does not, by itself, establish that the medical examination was fabricated. Likewise, the non-production of the referral slip may constitute a deficiency in the documentary record, but it cannot lead to the conclusion that the X-ray finding itself was false, particularly when the doctor stood by the report and produced the original record. His inability to opine whether the injuries could have been self-inflicted or caused with a friendly hand also does not discredit the existence of the fracture. It only reflects his inability to give an opinion regarding the manner of infliction. Significantly, the X-ray examination was conducted on the very next day of the occurrence and no callus formation was seen, which is consistent with a recent fracture. The defence has not produced any cogent material to establish that the X-ray facility was unavailable at PHC, Budhlada or that the alleged referral was inherently impossible. Thus, the medical evidence cannot be discarded on the basis of conjecture that the fracture was procured subsequently.

Learned counsel for the appellants has further contended that the defence evidence, comprising Ex.D1 to Ex.D11, establishes that there were earlier complaints and proceedings against Jai Chand Parinda and that his powers had also been withdrawn for a period, thereby furnishing sufficient motive for his falsely implicating the appellants in the present case. Learned State counsel, however, has submitted that the existence of previous complaints or disputes does not, by itself, establish false implication, particularly when PW-9 is an injured witness whose testimony is corroborated by medical evidence.

The contention does not persuade this Court. The documents produced by the defence may indicate the existence of previous disputes or complaints concerning Jai Chand Parinda, but they do not establish that the present occurrence did not take place or that PW-9 falsely implicated the appellants. On the contrary, PW-9 himself sustained injuries in the occurrence and his presence at the spot is corroborated by the medical evidence. The fact that there may have been previous animosity between the parties cannot, in the absence of any material contradiction affecting the core of his testimony, be made a ground to discard his otherwise trustworthy deposition. The defence evidence, therefore, does not create such a reasonable doubt regarding the occurrence or participation of the appellants as would warrant interference with their conviction under the IPC.

Learned counsel for the appellants has lastly contended that the conviction under the SC/ST Act is wholly unsustainable, as the allegations regarding the use of caste-based expressions are vague and omnibus. It has been submitted that the specific allegation that the complainant party was referred to as “Chuhra Chamar” was attributed by PW-9 to Jaspal Goel, Advocate, and Vijay Kumar Singla, Advocate, whereas both these persons are not facing trial. As regards the present appellants, there is only a general allegation that all of them again used the same expression and stated that they would teach them a lesson. It is argued that there is no specific attribution as to which of the present appellants uttered the alleged caste-based words and, therefore, the ingredients of the offence under the SC/ST Act are not established against them.

Learned State counsel has opposed the contention and submitted that PW-9 has specifically deposed regarding the caste-based utterances and that his testimony, being that of an injured witness, deserves to be accepted.

On the question as to whether the offence under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out against the appellants, this Court finds that the evidence on record requires a closer scrutiny. The allegation regarding the use of caste-based derogatory words has to be examined against each of the accused with some degree of specificity, particularly when the said allegation constitutes the very foundation of the charge under the special enactment. In the present case, PW-9 Jai Chand Parinda, while narrating the occurrence, has specifically attributed the utterance of the words referring to the caste of the officials to Jaspal Goel, Advocate and Vijay Kumar Singla, Advocate. It is thereafter stated that the other persons present there said that they would teach them a lesson. Significantly, neither Jaspal Goel nor Vijay Kumar Singla, Advocates, is facing trial along with the present appellants.

The difficulty in sustaining the conviction under the SC/ST Act arises from what follows thereafter. When PW-9 describes the subsequent incident inside the office, the allegation is that all the accused again called the officials by the aforesaid caste-based expression and threatened to kill them. However, there is no specific attribution to any particular appellant as to which of the appellants actually uttered those words. The witness has not stated that Surinder Pal, Rajinder Kumar, Ankush Singla or Satpal, individually or collectively, used the particular caste-based expression. The allegation against them is thus in the nature of a general and omnibus allegation that “all of them” uttered the same words.

This aspect assumes significance in the facts of the present case because the prosecution itself has specifically identified the two persons who allegedly used the caste-based expression at the initial stage of the occurrence, namely, Jaspal Goel, Advocate and Vijay Kumar Singla, Advocate. Once the specific attribution is against persons who are not facing trial, the subsequent general statement that all the remaining persons also uttered the same caste-based words cannot, without more, be treated as sufficient proof against each of the present appellants. There is no explanation in the testimony of PW-9 as to which particular appellant uttered which particular words. The evidence does not disclose any individual role of the present appellants in respect of the alleged caste-based insult.

It is also difficult to accept, in the absence of any further particulars, that all the persons involved in the occurrence would have simultaneously uttered, in one voice, the same set of caste-based words, so as to justify an inference that each of the present appellants individually committed the offence punishable under the SC/ST Act. The mere use of the expression “all of them” cannot substitute for proof of the essential ingredients of the substantive offence. The allegation of caste-based humiliation is distinct from the allegations relating to assault, damage to property, obstruction of public servants or entry into the office. The fact that the appellants may have participated in the occurrence or shared a common object under Section 149 IPC does not, by itself, establish that each of them made the particular caste-based utterance constituting the offence under the special statute. For this, reliance has been placed upon Balkrushna and ors. vs. The State of Maharashtra and ors., 2023(1) AIR BomR (Cri) 544, wherein the Hon’ble Bombay High Court in para No.13 has held that “it is also emerging that threats and utterance on caste abuse are apparently attributed to all the three applicants at one and the same time. It is difficult to comprehend as to how three persons in one go, at one and the same time, could in-chorus use identical words for abusing the informant on caste basis”.

The prosecution was required to establish beyond reasonable doubt that the caste-based insult was made by the accused against the members of the Scheduled Caste, with the requisite intention contemplated by the statutory provision and in the circumstances constituting the offence. In the present case, the evidence does not satisfactorily establish this essential ingredient against any of the present appellants individually. The specific allegation is against Jaspal Goel and Vijay Kumar Singla, who are not before this Court as accused, whereas against the present appellants there is only a vague and omnibus attribution. The benefit of such lack of specificity must necessarily go to the appellants.

Thus, even though the evidence on record may be sufficient to establish the occurrence and the participation of the appellants in the other offences proved against them, this Court is not persuaded that the prosecution has established beyond reasonable doubt the commission of the offence under Section 3 of the SC/ST Act by the present appellants. Their conviction under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 149 IPC is, accordingly, liable to be set aside, while their conviction for the remaining offences is not affected by this finding.

Accordingly, while the conviction of the appellants under Sections 147, 353/149, 427/149, 452/149, 333/149, 332/149 and 506/149 IPC is found to be sustainable, their conviction under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 149 IPC cannot be sustained and is liable to be set aside.

Consequently, the present appeal is partly allowed. The conviction of the appellants under Sections 147, 353/149, 427/149, 452/149, 333/149, 332/149 and 506/149 IPC is upheld, whereas their conviction under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 149 IPC is set aside.

Coming to the quantum of sentence, the highest sentence awarded to the appellants is rigorous imprisonment for a period of two years along with fine of Rs.1,000/- under Section 333 read with Section 149 IPC. It may be noticed that Section 333 IPC prescribes imprisonment which may extend to ten years and fine, and there is no minimum sentence prescribed thereunder.

Learned counsel for the appellants has prayed that, having regard to the considerable lapse of time since the occurrence, the appellants may either be released on probation or, in the alternative, the sentence imposed upon them may be suitably reduced. It has been submitted that the occurrence is of 13.12.2001 and the appellants have faced the agony of criminal proceedings for almost 25 years. It has further been submitted that the appellants have been on bail during the pendency of the appeal and that sending them to custody at this distant point of time would serve no useful purpose.

The prayer for extending the benefit of probation cannot be considered in isolation from the nature of the offence, however, the extraordinary delay of almost 25 years since the occurrence is certainly a relevant circumstance while determining the appropriate sentence. In this regard, guidance can be drawn from the judgment of this Court in Buta Singh and another v. State of Punjab, 2004(3) RCR (Criminal) 605. In that case also, the appellants had been convicted under Section 333 IPC and the substantive sentence imposed upon them was rigorous imprisonment for three years along with fine. The occurrence therein had taken place in the year 1991 and, at the time of decision of the appeal in 2004, more than 13 years had elapsed. While upholding the conviction, this Court took into consideration the long passage of time, the responsibilities which the appellants would have acquired during the intervening period and the hardship which their incarceration at that stage would cause to their settled lives and families. Relying upon Rakesh Kumar v. State of Haryana, 1998(4) RCR (Criminal) 436, this Court observed that notwithstanding the seriousness of the offence, the ends of justice would be met by not sending the appellants to jail after such a long lapse of time and accordingly released them on probation for a period of three years on their furnishing bonds and sureties, with a direction to pay compensation to the complainant.

The aforesaid judgment is of considerable assistance in the facts of the present case. Here, the occurrence took place on 13.12.2001 and almost 25 years have elapsed thereafter, which is substantially longer than the period considered by this Court in Buta Singh’s case (supra). The appellants have remained facing the criminal proceedings for all these years. The conviction under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act is being set aside for the reasons recorded hereinbefore. Consequently, the highest substantive sentence now remaining against the appellants is that of two years’ rigorous imprisonment under Section 333 read with Section 149 IPC. There is also nothing on record to show that the appellants are previous convicts. At this stage, sending them to prison after an interval of almost 25 years would, in the considered opinion of this Court, be unduly harsh and would not advance the cause of justice.

Accordingly, while maintaining the conviction of the appellants under the remaining offences, instead of sending them to jail to undergo the substantive sentences imposed by learned trial Court, the appellants are directed to be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, for a period of one year, subject to their furnishing bonds in the sum of Rs.20,000/- each with one surety in the like amount to the satisfaction of learned Chief Judicial Magistrate concerned. The appellants shall undertake to keep peace and be of good behaviour during the said period and shall appear and receive sentence as and when called upon to do so.

In case of failure to furnish the requisite bonds or to comply with the conditions of probation, the appellants shall be liable to be dealt with in accordance with law.

The appeal is, accordingly, partly allowed to the aforesaid extent. The conviction of the appellants under Sections 147, 353/149, 427/149, 452/149, 333/149, 332/149 and 506/149 IPC is maintained, whereas their conviction under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 149 IPC is set aside. The substantive sentences awarded by the learned trial Court are modified in the aforesaid terms.

All pending applications, if any, also stand disposed of.