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CASE NO.: Appeal (crl.)  694 of 2004

PETITIONER: JAGDISH & ANR.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT: 12/05/2005

BENCH: P.VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT: J  U  D  G  M  E  N  T

P.VENKATARAMA REDDI, J.                  The two appellants herein were convicted under Section 307 read  with Section 34 and Section 323 read with Section 34 IPC and they were  sentenced to undergo rigorous imprisonment for ten years for the offence  under Section 307/34 IPC and to pay a fine of Rs.100/- each.                                                                                                        On appeal to the High Court of Punjab & Haryana, the High Court  upheld the conviction under the aforementioned Sections but reduced the  sentence of the second appellant Balbir from ten years to seven years.  The  High Court further directed the appellant Jagdish to  pay Rs.1 lac and the  other appellant Balbir to pay Rs.50,000/- as compensation to Sukhbir (PW- 8).           They were charged for attempt to murder  Sukhbir (who was  examined as PW-8) on 9.8.1990  at about 11.15 AM in the village Sihol.   The prosecution case is that there were some ill-feelings between the accused  and the members of the prosecution party on account of a land dispute.  On  9.8.1990, PW-8 along with his brother Om Prakash (PW-9) went to Palwal  in order to get the ticket reservation done and also to purchase some  household goods.  At about 11.15 AM, when they crossed G.T. Road, all of a  sudden, the second accused Balbir, armed with a lathi and the other accused  Jagdish, armed with Gandasa accosted them.  The second accused Balbir hit  Sukhbir (PW-8) on the knee with lathi as a result of which Sukhbir (PW-8)  fell down.  Thereafter, the accused Jagdish attacked Sukhbir (PW-8) with  gandasa and inflicted injuries on the head and both the arms of Sukhbir.  The  gravity of injuries on the hands was such that  Sukhbir suffered amputation  of hands.  After hue and cry being raised by Om Prakash (PW-9), the  accused fed away.   He also lodged a report to the police station at 12.15 PM  on the same day.  Om Prakash  and others took Sukhbir  to the hospital.  FIR  was registered by ASI  Bhagat Ram (PW-10).  Initially, the victim underwent  treatment at city hospital, Palwal and, thereafter, he was shifted to Army  Hospital, Delhi in the evening of the same day.  Though the prosecution  claimed that the weapons gandasa and lathi were recovered on the basis of  the disclosure statement made by the accused persons, it was disbelieved by  the trial court.  The victim was first examined at Palwal Hospital by PW-6  (Dr.A.K.Malik) who found six incised wounds on the scalp and hands and  two abrasions of 1/2"to  1/2"on  both the knees.  He gave the opinion that  injuries 1 to 5 were cumulatively dangerous to life.  Amongst the injuries,  PW-6  found the right hand with lower 1/3rd of the forearm in an amputated  form.  There was also an incised injury on the left wrist  3 1/2" x 2 1/4" and  the left hand was found attached  with left forearm through skin flaps and  ligament of ulnar side.  Thus, the impact of the injuries inflicted with a  sharp-edged weapon were such that both the hands suffered amputation.     PW-5, the doctor in Army Hospital, found incised wound over left parieto  occipital region of scalp.  He also found the following three injuries:-          " 1.  Lacerated wound left parietal region 3" long already sutured.  

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2.Lacerated wound occipital region 3" long already sutured.

3.Left upper limb traumatic amputation through left wrist with  hand hanging free."

       He did not mention any incised injury apparently because by that  time the injuries were sutured.  He also did not note any abrasions on the  knees.  PW-9 Om Prakash ( the brother of the informant) lodged a report to  the police.  Sukhbir, the injured, gave evidence as PW-8.  The evidence of  these two witnesses was believed by both the courts.  We do not find any  material contradiction or anything unnatural in the evidence of these eye  witnesses including the injured eye witness.  The criticism levelled against  the prosecution case is that the FIR was not recorded at the time at which it is  stated to have been recorded.  But, most probably,  it could have been  brought into existence a few hours later after deliberations.  This criticism is  based on the fact that according to PW-9, he had gone to police station to  lodge the FIR whereas according to PW-8 when he was taken to the hospital  his brother (PW-9) was in his company.  This discrepancy, in our opinion,  does not demolish the entire prosecution case.  Having regard to the fact that  the FIR was recorded at 12.15 PM, there was a possibility of PW-9 lodging  the report after leaving his brother in the hospital at 11.45 AM.  Thus, there  was sufficient time gap of half an hour.         Learned counsel for the appellant mainly concentrated on the case  of A-2 (Balbir).  According to the evidence of PW-8 and PW-9, A-2 (the 2nd  appellant) gave one lathi blow on the knee.  If so, the injury  found on the  knee could have been more severe and not mere abrasion of 1/2" to 1/2".   Moreover, as there was one blow, there could not have been any injury on  the second knee also.  According to the learned counsel for the appellants,  these abrasions could have been caused on account of  fall on the ground as  stated by PW-6 (Dr.Malik).  In any case, it is contended that the second  appellant cannot be said to have common intention with the first appellant. If  at all they can be convicted for the individual acts, we find force in the  contention of the learned counsel for the appellant as regards the second  appellant (A-2) is concerned.  PW-5 did not find any injury at all on the  knees. Maybe, that it was so minimal that it could have escaped the attention  of PW-5.   The other possibility is that this mild abrasion could be caused by  reason of fall.  In any case, the version of PW-8 that lathi blow was given  with such a force that as a result of its impact, the victim fell to the ground  cannot be accepted. That apart, even according to the prosecution case,  attack took place suddenly in a public place when PW-8 and 9 were  returning to their home from Palwal.            It is highly doubtful whether the appellant No.2 shared  his  common intention with appellant No.1 and both of them wanted to kill PW-8  (Sukhbir).  The conviction and sentence of the second appellant (accused  No.2) is, therefore, set aside and the appeal is allowed in so far as the second  appellant is concerned.  He shall be released forthwith from the jail if he is  not required in any other case.         Coming to the case of the first appellant, we find that there is no  ground to interfere with the finding of the trial court as affirmed by the  High  Court as there are no compelling grounds to discard the testimony of the  injured eye witness who was brutally assaulted by A-1 with a dangerous  weapon.  We, therefore, affirm the conviction of appellant No.1.  As regards  the sentence, we would not have  felt inclined to reduce the same but for the  fact that the first appellant during the course of hearing has come forward to  pay the compensation amount of Rs.1 lac awarded by the High Court and   the learned counsel for the appellant has brought three Pay Orders of Punjab  National Bank for a total sum of Rs.1 lac, we consider it just and proper to  reduce the sentence to eight years rigorous imprisonment instead of ten years  while confirming the conviction under Section 307 IPC.           The counsel for the intervenor who is the injured person is not  present today in the Court.  The Pay Orders shall be forwarded by the  Registry to the Chief Judicial Magistrate, Faridabad (Haryana) for handing it  over to the injured person Sukhbir (PW-8) son of Raj Pal after being satisfied  about his identity.

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       The appeal is allowed in the aforesaid terms.