[Cites 11, Cited by 0]
Punjab-Haryana High Court
Banwari Lal Etc vs State Of Ut Chandigarh on 13 January, 2026
CRA-S-2258-SB-2004 -1-
103 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-2258-SB-2004
Reserved on: 13.10.2025
Pronounced on: 12.01.2026
BANWARI LAL ETC.
......... Appellants
VERSUS
STATE OF UT CHANDIGARH
..... Respondent
1. The date when the judgment is reserved. 13.10.2025
2. The date when the judgment is pronounced. 12.01.2026
3. The date when the judgment is uploaded. 13.01.2026
4. Whether only operative part of the judgment is Full
pronounced or whether the full judgment is
pronounced.
5. The delay, if any of the pronouncement of full Not applicable
judgment and reason thereof.
CORAM: HON'BLE MR. JUSTICE YASHVIR SINGH RATHOR
Argued by : Mr. Subhash Ahuja, Advocate with
Mr. Karan Veer Ahuja, Advocate
for the appellants.
Mr. Adhiraj Toor, Advocate for
Mr. J.S. Toor, APP, U.T., Chandigarh.
****
YASHVIR SINGH RATHOR, J. (Oral)
1. This appeal is directed against the judgment dated 01.11.2004
passed by the Court of Additional Sessions Judge, Chandigarh in FIR
No.77 dated 25.02.2000 under Sections 307/34 of IPC registered at Police
Station Sector 39, Chandigarh vide which appellants Banwari Lal, Tinku
@ Johan Lal and Bittoo @ Sohan Lal have been held guilty and convicted
for the offence under Sections 323, 323/34 and 307/34 of IPC and
sentenced to undergo imprisonment as under:-
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Name of Offence under Sentence
accused Section
323 IPC To undergo rigorous imprisonment for one
year
Banwari 323/34 IPC To undergo rigorous imprisonment for one
Lal year
307 IPC To undergo rigorous imprisonment for seven
years with payment of fine of Rs.1000/- and
in default of payment of fine to further
undergo rigorous imprisonment for one
month.
323/34 IPC To undergo rigorous imprisonment for one
year
Tinku 307/34 IPC To undergo rigorous imprisonment for seven
years with payment of fine of Rs.1000/- and
in default of payment of fine to further
undergo rigorous imprisonment for one
month.
323 IPC To undergo rigorous imprisonment for one
year
323/34 IPC To undergo rigorous imprisonment for one
Bittoo year
307/34 IPC To undergo rigorous imprisonment for seven
years with payment of fine of Rs.1000/- and
in default of payment of fine to further
undergo rigorous imprisonment for one
month.
All the sentences have been ordered to run concurrently.
2. The present case was registered on the basis of statement
Ex.PA given to the police by Rajinder Kumar son of Bali Ram, resident of
House No.723/1, Sector 38-A, Chandigarh with the allegations that he
alongwith his mother and brother is living at the aforesaid address. House
of accused Banwari Lal exists in front of his house, who is rearing hens at
his house. Common stairs exist for both the houses. On 23.02.2000 at
about 08:00 AM, his brother Sunil Kumar was going to drop his son to the
school when he found hen droppings in the staircase on which he asked
the sons of Banwari Lal as to why they do not clean the hen droppings.
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Thereafter, when he was starting the scooter, Banwari Lal and his three
sons namely Bittoo, Sonu and Tinku started beating him. Banwari Lal was
armed with a thapi (wooden instrument used for washing clothes) while
Tinku was armed with a danda of the shape of hockey. Banwari Lal and
Tinku caused injuries in his head with the thapi and hockey while Sonu
caused injuries to him with fist and slap blows and Bittoo caused injuries
to him with bricks. When his elder brother Pappu tried to rescue him,
Banwari Lal and Tinku caused injuries to him on his head with thapi and
danda, as a result of which, he fell on the ground. When he went to rescue
his brothers, Bittoo hit a brickbat at him and Banwari Lal caused injury
with the danda in his leg. His wife Renu and one neighbour Shiv Sahay
Gupta came there and rescued them and thereafter, someone informed the
police on which police arrived at the spot. Blood was oozing out from the
head of his brother Sunil Kumar and he had fallen unconscious and police
took Sunil Kumar as well as Pappu to PGI, Chandigarh for treatment and
he sought action against the accused persons. After registration of the case,
the investigation was handed over to SI Udey Pal Singh. MLRs of the
injured were collected. Rough site plan of the place of occurrence was
prepared. Statements of witnesses under Section 161 Cr.P.C. were
recorded. Accused were arrested and after completion of investigation,
challan was presented against accused Banwari Lal, Tinku @ Jogan Lal
and Bittoo @ Sohan Lal. However, Mohan Lal @ Sonu was below 16
years of age and inquiry against him was separated.
3. After presentation of challan, the copies of challan and other
documents were supplied to the accused free of cost as required under
Section 207 of Cr.P.C. Thereafter, the case was committed to the Court of
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Sessions for trial.
4. After hearing learned Public Prosecutor and learned Defence
counsel, the accused were charge-sheeted for the commission of offences
punishable under Sections 307/323 read with Section 34 of IPC vide order
dated 21.09.2000 by the trial Court for causing injuries to the complainant
to which accused pleaded not guilty and claimed trial.
5. In support of its case, the prosecution examined twelve
witnesses namely Rajinder Kumar as PW1, Shiv Sahay Gupta as PW2,
Pappu as PW3, Dr. Shivka Malhotra as PW4, Dr. Rajwinder Jit Singh as
PW5, Sub Inspector Balkar Singh as PW6, Constable Yash Pal as PW7,
H.C. Baldev Singh as PW8, Sunil Kumar as PW9, Sub Inspector Ved
Parkash as PW10, Dr. Saroon Salaria as PW1l and Sub Inspector Udey Pal
Singh as PW12.
6. Thereafter, statements of accused under Section 313 of
Cr.P.C. were recorded and the entire incriminating material was put to
them which was denied by them to be wrong. In their defence, accused
have examined Bimla as DW1, Dharambir as DW2, Sanjiv Kumar as
DW3 and Head Constable-Mohinder Singh as DW4.
7. After hearing learned Public Prosecutor and learned defence
counsel and on going through the record, learned trial Court held
appellants guilty and convicted them for the offences as mentioned in
opening paragraphs of the judgment.
8. Feeling aggrieved, the appeal in hand has been preferred.
9. I have heard learned counsel for the parties and have gone
through the record.
10. Learned counsel for the appellants argued that impugned
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judgment is based on conjectures and surmises. The facts of the case and
the evidence on file have not been appreciated in the correct perspective
while convicting the appellants. The medical evidence has been misread
and no offence under Section 307 of IPC is made out. Learned counsel
further contended that one of the injured namely Sunil Kumar has suffered
one grievous injury in his head and doctor has not given any opinion that
the same was dangerous to life or sufficient to cause death in an ordinary
course and at the most, offence under Section 325 of IPC is made out and
the conviction under Section 307 of IPC is thus not sustainable.
11. Learned counsel for the appellants next contended that there
is a delay of two days in lodging the FIR and the entire family has been
roped in by taking advantage of delay in lodging the FIR. It was a sudden
quarrel between two neighbours and there was no past enmity between the
parties and the accused never shared any common intention to cause
injuries to the victims. No cogent reasons have been recorded by learned
trial Court while convicting the appellants with the aid of Section 34 of
IPC. Learned counsel further contended that no fingerprints have been
taken from the weapons allegedly recovered from the possession of
accused and investigation too has not been conducted fairly, which has
resulted in miscarriage of justice and the impugned judgment deserves to
be set aside. Learned counsel further contended that even the injury, which
has been declared as grievous in nature has not been attributed to a
particular accused and it has not been specifically pointed out as to who
had caused the said grievous injury and whether it was caused with a
wooden stick or wooden thapi. Learned counsel next contended that
learned trial Court has wrongly accepted the version of the complainant
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who all are close relatives and defence version put forward by the
appellants/accused has been rejected on the ground that they are closely
related. Earlier also, a complaint was lodged against complainant Rajinder
Kumar under Section 107/151 of Cr.P.C. at the instance of the accused
party and possibility of false implication on account of previous enmity
thus cannot be ruled out. The delay of two days in lodging the FIR too has
not been cogently explained. Though, it has been alleged that the injured
were unfit to make statement yet complainant Rajinder Kumar was fit for
making the statement from the very beginning but the FIR was
intentionally delayed to rope in the entire family and by putting forward
twisted facts. Lastly, learned counsel contended that impugned judgment
is not sustainable and he prayed that the same be set aside and
accused/appellants be acquitted of the charge under Sections 323, 323/34
and 307/34 of IPC.
12. On the other hand, learned counsel for U.T. Chandigarh has
argued that impugned judgment is perfectly legal and valid. The evidence
on file has been appreciated in the correct perspective while convicting the
accused. Learned counsel further contended that from the evidence led on
file, it is established that the injuries were caused on the head of PW9
Sunil Kumar with a thapi and hockey like stick with an intention to kill
him. Merely because., he had suffered grievous injury will not give rise to
the conclusion that the offence would fall under Section 325 of IPC and it
is the intention of the accused which is to be seen and since, blows were
caused on a vital part resulting in fracture of parietal bone with an
intention to kill him, the offence will fall under Section 307 of IPC.
Moreover, all the accused in furtherance of their common intention had
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assaulted the victims and they are thus liable for the acts committed by
them and they have rightly been held guilty and convicted by the learned
trial Court and impugned judgment does not call for any interference.
13. Before proceeding further, the medical evidence shall be
discussed to determine the nature of injuries suffered by the victims. In
order to prove the injuries suffered by the victims, the prosecution has
examined PW4 Dr. Shivka Malhotra, PW5 Dr. Rajwinder Jit Singh, PW11
Dr. Saroon Salaria.
14. Dr. Shivka Malhotra while appearing as PW4 deposed that on
23.02.2000, she had medico-legally examined patient namely Pappu vide
CR No.221481 and following injuries were found on his person:-
(i) Small lacerated wound 2 inches x2 inches x0.5 inches on the left lateral
side of forehead
(ii) 1 inch x1 Inch lacerated wound on tip of nose.
She tendered the MLR Ex.PB and further deposed that S.I.
Udey Pal had sought her opinion by moving application Ex.PC as to
whether patient was fit to make statement or not and she had declared the
patient fit to make statement vide opinion dated 23.2.2000 Ex.PC/1.
15. She further deposed that on the same day, she had medico
legally examined patient namely Sunil Kumar vide CR No.221480 on the
application Ex.PD moved by S.I. Udey Pal Singh and she found following
injury on his person:-
(i) 1cm x .5cm, laceration in scalp in the occipital region, crepitus Felt in
occipital region.
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She further deposed that the MLR of patient namely Sunil
Kumar is Ex.PE which bears her signatures and is correct as per original
record brought by her. Regarding nature of injuries, she stated that x-ray
skull showed fracture of parietal bones B/L. CT Scan showed left parieto
occipital contusion with no midline shift. She further stated that the
injuries were declared as grievous in nature vide opinion dated 25.5.2000
Ex.PE/1. She further stated that S.I. Udey Pal Singh vide application
Ex.PF had sought her opinion as to whether Sunil Kumar was fit to make
statement or not and on 23.2.2000, she had given opinion Ex.PF/1 and
declared the patient to be unfit to make statement which bears her
signatures.
16. Dr. Rajwinder Jit Singh while appearing as PW5 deposed that
on 23.2.2000 at about 1:30 PM on medical examination of Rajinder
Kumar, he had found the following injuries on his person:-
(i) Abrasion 1 cm x 1 cm over left zygomatic area reddish.
(ii) Pain and tenderness right scapula & infra scapular region,
no external injury. Advised X-ray chest AP view.
(iii) Contusion 3 cm x 2 cm, over lateral aspect of right leg, upper
1/3rd region reddish.
He further stated that Injuries No.1 and 3 were simple and injury
No.2 was kept under observation. The duration of injuries was within 12
hours and the weapon used was blunt. He further stated that he has brought
the original MLR issued by him, which bears his signatures and its correct
carbon copy Ex.PG. He stated that no fracture was found during X-ray
examination and injury No.2 was declared simple vide his opinion
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Ex.PG/1.
17. Dr. Saroon Salaria, Senior Resident, Department of
Neurosurgery, PGI, Chandigarh while appearing as PW11 deposed that he
had examined patient namely Sunil Kumar, who was admitted in PGI,
Chandigarh on 23.2.2000 and discharged on 3.3.2000 and the following
injuries were found on his person:-
(i) A lacerated wound over the scalp 1 x 1.5 cm.
(ii) Fracture parietal bone.
He further stated that injury No.1 was simple while injury
No.2 was grievous. He proved the medico-legal case summary of Sunil
Kumar as Ex.PL. He further deposed that he had also examined patient
namely Pappu, who was admitted in PGI on 23.2.2000 and discharged on
24.2.2000 and had found the following injuries on his person:-
(i) Lacerated wound over left side of Forehead 2 xm x 2 x .5cm.
(ii) Wound over tip of the nose 1"x1".
Both the injuries were simple in nature. He proved the medico legal
case summary of Pappu as Ex.PM.
18. Nothing to shatter the veracity of PW4, PW5 and PW11 could
be elicited during their cross-examination so as to impeach their
testimony. Only suggestion given to PW4 Dr. Shivka Malhotra is that
injuries on the person of Pappu could be caused due to fall which has been
denied by her to be wrong and she also denied the suggestion that injuries
on the person of Pappu could be caused due to fall from stairs. No cross-
examination has been effected upon PW5 Dr. Rajwinder Jit Singh, who
had medico legally examined Rajinder Kumar and as per his opinion, all
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the injuries on the person of Rajinder Kumar were simple in nature. PW11
Dr. Saroon Salaria during cross-examination has admitted that injuries on
the person of Sunil Kumar and Pappu can be sustained due to fall from the
stairs. However, simplicitor opinion in this regard cannot brush aside the
ocular version of the witnesses as it is merely an opinion given by the
doctor. Accordingly, from the testimony of PW4 and PW11, medico-legal
report of Sunil Kumar, Radiology examination report and CT Scan report,
it is established that he had suffered one injury on his head which was a
fracture of parietal bones B/L while CT Scan showed left parieto occipital
contusion with no midline shift. Both PW4 and PW11 have declared the
said injury to be grievous in nature while injuries on the person of Pappu
and Rajinder Kumar have been found to be simple in nature as deposed by
PW4 and PW5 respectively. However, no opinion has been given by the
doctors that the injury on the person of the injured namely Sunil Kumar
was dangerous to life or sufficient to cause death in the ordinary course of
nature and the injury has been declared as grievous only. The occurrence
too had taken place at the spur of the moment and one blow with a thapi
was given in the head by accused Banwari Lal and one blow with a hockey
like stick was given by accused Tinku. No blow was repeated by Banwari
Lal and Tinku and as such, it cannot be inferred that accused had caused
the injury with an intention to kill him. The quarrel started over cleaning
of hen droppings in the staircase and there was no prior meeting of minds
and the assault was thus not preplanned. In these circumstances, it cannot
be inferred that the injury was caused on the person of Sunil Kumar with
an intention to kill him and the offence in question will thus fall under
Section 325 of IPC only and not under Section 307 of IPC for which the
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appellants have been held guilty and convicted. In holding so, I have relied
upon 2019 (3) RCR Criminal 724, Prince Kumar Vs. State of Punjab,
cited by the learned counsel for the appellants. Besides the grievous injury
suffered by injured namely Sunil Kumar, the other two injured namely
Rajinder Kumar and Pappu have also suffered simple injuries which would
fall under Section 323 of IPC.
19. In order to prove its case, the prosecution has examined
complainant namely Rajinder Kumar as PW1. He deposed that on
23.02.2000 at about 08:00 AM, his younger brother Sunil Kumar was
going to drop his son at the school but he saw hen droppings in the
staircase and on his scooter seat, on which he asked the son of accused
Banwari Lal to clean the droppings. Said accused Banwari Lal and his
sons are residing in House No.710/1, Sector 38-A, Chandigarh in their
neighbourhood and they are rearing hens. His brother told them that if they
are interested in keeping hens, they should take care of them and clean the
droppings, on which, Banwari Lal and his sons got enraged and started
beating Sunil Kumar. Banwari Lal was armed with danda like bat, Tinku
was armed with a hockey kind of danda, Bittoo was having bricks/stone in
his hand and Sonu was beating Sunil Kumar with slap and fist blows. One
of the window of their house opens towards that side and he saw accused
beating his brother from the window pane and immediately rushed to the
spot. When he tried to rescue Sunil Kumar, Banwari Lal gave a danda
blow on his leg while Bittoo hit on the right side of wrist with a brick and
he fell down. His brother also fell down and became unconscious but
accused kept on causing injuries to him even when he was lying
unconscious. Thereafter, his brother Pappu reached there and Bittoo hit a
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brick on his face and he also fell down. His wife also came downstairs and
accused caught hold of her and they proclaimed that she should not be
spared and should be beaten. Their neighbour namely Shiv Sahay Gupta
also came there on hearing the cries. Someone from the neighbourhood
made a call to the police. Shiv Sahay Gupta also tried to rescue them but in
the meantime, police reached. He further deposed that had the police not
reached at the spot, accused would have killed his brother Sunil Kumar.
He further deposed that he was unable to get up after he fell down as he
had suffered fracture in his right side lung and he was unable to move. The
police then brought them to PGIMER, Chandigarh where his statement
Ex.PA was recorded and he was medico legally examined on the next day.
20. Pappu while appearing as PW3 deposed that they are three
brothers and they reside together with their mother. Accused Banwari Lal
resides in their neighbourhood along with his three sons. On 23.02.2000,
an altercation had taken place between Sunil Kumar and Banwari Lal and
his sons and they gave severe beatings to his brother Sunil Kumar. The
quarrel started on account of hen droppings and when Sunil Kumar was
going to drop his son to the school, he asked the accused to clean the hen
dropping as they were rearing hens in their house. Accused started beating
him and when he went to save Sunil, Bittoo gave a brick blow on his face.
Banwari Lal hit on his head with a bat while Tinku gave him fist and kick
blows and he fell down and became unconscious. His brother Rajinder
Kumar also reached at the spot and he too was given brick blow on the
right side of his waist. He further stated that accused are present in the
Court.
21. Sunil Kumar is the injured, who has been examined as PW9
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and he deposed that on 23.02.2000 in the morning, he told accused Sonu
that if they are interested in keeping hens, they should take care of their
droppings, on which, Banwari Lal and Tinku, who are father and brother
of Sonu also came there and they gave a danda blow on his head from
backside. Tinku was armed with a danda of a special kind and he too gave
a danda blow on his head. He fell down and tried to stand up using his
hands. Banwari Lal instigated his sons that he should be done to death
today. His brother Pappu also reached there and he too was given a danda
blow by accused Sonu on his face. He further deposed that he fell
unconscious and as such, he cannot tell as to how and when he was taken
to the hospital but when he regained consciousness, he found himself in
PGI, Chandigarh.
22. Shiv Sahay Gupta is a neighbour, who has been examined as
PW2 and he too deposed that on 23.02.2000, when he was present at his
home, he heard noise from outside and came out of his house. He saw that
Sunil Kumar was lying on the ground and accused and their entire family
were shouting 'Mar do Mar do'. He tried to stop the accused from beating
Sunil Kumar but they did not listen to him. He further deposed that Tinku
was armed with a hockey shape danda, Banwari Lal was armed with a
danda and Bittoo was armed with brick in his hand. Bittoo gave a brick
blow on the face of Pappu. Tinku gave a danda blow on the leg of Rajinder
Kumar, as a result of which the danda broke. He moved aside fearing that
he may not hit on his left leg. In the meantime, somebody rang up the
police and police party reached at the spot. Pappu and Sunil Kumar were
taken to hospital by the police while Rajinder Kumar was taken to the
police station.
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23. Stand of accused is that it is the complainant party namely
Rajinder Kumar and Sunil Kumar, who were the assailants and they had
attacked them and their family members for no fault of theirs. It is also
their case that victims have suffered injuries due to fall from the stairs and
they never caused any injury to them. To prove their defence, they have
examined Bimla as DW1, Dharambir as DW2, Sanjiv Kumar as DW3 and
H.C. Mohinder Singh as DW4.
24. DWI Bimla deposed that on the date of alleged incident, the
complainant party namely Rajinder and Sunil had got down from first
floor of the house in the locality and attacked her and her children for no
fault of theirs. She had informed about the incident to the concerned police
on 23.2.2000 and the police took the cognizance of offence and took
Rajinder Singh into custody under Sections 107/151 Cr.P.C. with regard to
same very incident. She was not got properly medico-legally examined by
the police. She had sustained injuries on upper part of her body, whereas
she was examined on the lower part of the body by the concerned doctors
and her medical record has not been brought on record by prosecution.
Other family members of Rajinder namely Pappu, Sunil and Babu had
infact attacked them on the date of alleged incident, but they were not
proceeded against by concerned police intentionally and wilfully and her
family members have been falsely implicated in the present case. She
further deposed that after four days of alleged occurrence, her family
members were summoned to the police station and then charged wrongly
in the attempt to murder case. The hens have infact been kept by Mahabir
Shansa and other persons of locality. They are not having any hens as
alleged by the prosecution. She further deposed that even on the date of
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her evidence i.e. 20.12.2002, complainant party had kicked at her door and
threatened to kill her and her family members. Banwari Lal was not
present at the spot on the date of incident and was present in PGI where he
was working. Her other family members are not involved in the present
incident. Her sons have also been wrongly named in the present FIR.
Infact, Rajinder, Pappu and Sunil were the aggressors. Rajinder's wife had
a clash with Sunil which occasionally takes place in their family and when
the fight was going on between family members of complainant party,
Rajinder's wife gave a danda blow to Sunil and she also saw Rajinder
falling from stairs, who infact might have suffered the injuries then. She
and her family have been falsely implicated. Her husband Banwari Lal,
Tinku, Mintu and Sonu are innocent and defective investigation has been
conducted.
25. Dharambir, while appearing as DW2 deposed that he had
gone to the house of Banwari Lal on 23.2.2000 to bring his grand children.
On that day, accused Mohan son of Banwari Lal had gone to the house of
his in-laws and Banwaгі Lal was also not present on the date of incident.
On that day, the complainant party was seen by him attacking the wife of
Banwari Lal. Out of them, two were neighbours of Banwari Lal and three
others were also there but he does not know their names. However, the
other three were also members of Banwari's neighbourhood. Rajinder was
also with them alongwith his son. The police party reached at the spot and
took away the wife of Banwari Lal to the police station, but were not
referred to the hospital with regard to injuries suffered by them. Infact, the
sons of Banwari Lal had reached at the scene to save their mother. Later
on, the police called Banwari Lal and joined him in the investigation.
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Similarly, the children were also joined in the investigation as accused for
no fault of theirs. Infact, the complainant was not on good terms with the
family of Banwari Lal because of which they have been falsely implicated
in the present case.
26. Sanjiv Kumar, while appearing as DW3 deposed that on
23.2.2000 at about 8 P.M., he was to leave for his factory but he saw
Rajinder Kumar and his accomplices attacking Bimla, wife of Banwari Lal
near the stairs of her house. The complainant party is in the habit of
abusing the neighbourers. At about 8 A.M., Bimla after purchasing
household products was about to climb stairs, when she was attacked by
Rajinder and others. Infact, Bimla was given injuries on the head and hand
by pieces of brick. Due to this attack, he got late for his factory where he
works. Banwari Lal and his children have been falsely implicated in the
present case and have nothing to do with the commission of offence.
Banwari Lal and Mohan were not present at the spot on the date of
incident. The family members of Banwari Lal were wrongly taken into
custody by police and wife of Banwari Lal was also medically examined
in the hospital by the police. He further stated that Mahabira and others are
keeping fowls in the locality while Banwari Lal and his family do not rear
any fowls.
27. H.C. Mohinder Singh, while appearing as DW4 proved DDR
No.40, dated 23.2.2002, recorded at 2:45 PM Ex.DX/2. He stated that the
police was called at 8:25 AM by Bimla Devi with regard to the same
incident. D.D.R. No.5 Ex.DX was the information received.
28. However, once the evidence led by the prosecution and the
defence is glanced through, the version put forward by the prosecution
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inspires confidence. The prosecution witnesses namely PW1 Rajinder
Kumar, PW2 Shiv Sahay Gupta, who is an independent witness, PW3
Pappu and PW9 Sunil Kumar have deposed in chorus about the manner in
which occurrence started and the manner of assault by the accused
persons. When PW9 Sunil Kumar, who is the injured and with whom the
quarrel started was cross-examined, a suggestion has been given to him
during cross-examination that it is he who had himself started the
altercation and that they were the aggressors. Another suggestion had been
given to him that he had himself fallen from the stairs and suffered injuries
in the head or that he has falsely implicated the accused persons but the
suggestion have been denied by him to be wrong. During cross-
examination of PW-1 Rajinder Kumar also, a suggestion has been given
that it is they who were the assailants or that he suffered injuries due to fall
from the stairs. However, no such suggestion has been given to PW3
Pappu when he was cross-examined. PW2 Shiv Sahay Gupta is a
neighbour, who is an independent witness and he has corroborated the
version of the injured witnesses and no suggestion has been given to him
also during his cross-examination that the victims were either the
aggressors or that they had suffered injuries due to fall from the stairs. It is
well settled that if a witness is not cross-examined on a particular part of
his testimony to prove to the contrary, it shall be deemed that the opposite
party has accepted that part of the statement to be correct. Moreover,
except the self serving statement of the witnesses examined in defence and
vague suggestions given to PW1 and PW9, no cogent and convincing
evidence has been led to establish that the complainant party was the
aggressor and had caused injuries to the family of the accused including
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DW1 Bimla. Merely, because one of the witness namely PW1 Rajinder
Kumar was also arrested under Section 107 and 151 of Cr.P.C. on the
same day cannot lead to the conclusion that opposite party was the
aggressor as the proceedings under Sections 107 and 151 of Cr.P.C. are
meant only for the prevention of breach of peace. Learned trial Court has
also thus rightly disbelieved the evidence led by the accused in their
defence and has relied upon the version set up by the prosecution
witnesses namely PW1, PW3 and PW9, which is corroborated by medical
evidence. As such, the evidence on file has been appreciated in the correct
perspective and there is no reason to disbelieve the same.
29. There is also no force in the plea raised by learned counsel for
the appellants that there is a delay of two days in lodging the FIR.
Admittedly, the occurrence had taken place on 23.02.2000 at about 08:00
AM. The complainant namely Rajinder Kumar who is one of the injured
had got recorded his statement Ex.PK recorded before the Investigating
Officer on the same day on the basis of which DDR No.28 dated
23.02.2000 was registered at 11:00 AM. The FIR was not registered on the
same day as opinion regarding nature of injuries had not been received. On
25.02.2000, opinion of the doctor was received to the effect that one of the
victim namely Sunil Kumar had suffered grievous injuries and thereafter,
endorsement Ex.PI was made on the DDR and formal FIR was registered.
As such, there is no delay in lodging the FIR.
30. The Investigating Officer namely PW9 S.I. Udey Pal Singh
also conducted fair investigation and had taken the various steps while
conducting investigation. He deposed that on 23.2.2000, at about 8:25
A.M, he received a wireless message regarding a quarrel having taken
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place at House No.723/1. Sector 38, Chandigarh and he went to the spot
alongwith two constables. He recorded the statement of Rajinder Kumar,
which was sent to the police station for entry in the D.D.R. Then he
reached PGI Chandigarh and took the opinion of the doctor regarding the
condition of the injured namely Sunil Kumar and Pappu. He proved the
applications moved by him in this regard as Ex.PF and Ex.PC respectively.
He deposed that the doctor had declared Sunil Kumar unfit for making
statements. Thereafter, he submitted application Ex.PD to the doctor
seeking a copy of the MLR, which was issued to him on 23.02.2000. On
25.02.2000, on the same application, he obtained the doctor's opinion
Ex.PD/1 regarding the nature of the injuries, wherein it was mentioned
that the injuries were grievous in nature. On the basis of said report, he
made his endorsement Ex.PI on the statement recorded in the DDR Ex.PK
and sent the same to police station through Constable Dalbir Singh for
registration of case on the basis of which the FIR was registered.
Thereafter, he came to the place of occurrence and prepared rough site
plan of the spot Ex.PN. He also recorded the statement of Renu and
supplementary statement of Rajinder Kumar. On 26.2.2000, he recorded
the statements of Pappu and Shiv Sahay Gupta and arrested all the three
accused namely Banwari Lal, Tinku and Sonu. On 9.3.2000, he got
prepared scaled site plan of the spot Ex.PJ from Constable Yash Pal Singh.
On 20.4.2000, case summaries of injured Sunil Kumar and Pappu were
obtained from PGI Chandigarh. However, the statement of Sunil Kumar
could not be recorded as he was not in a position to make a statement. He
had taken the opinion of the doctor on application Ex.PM regarding the
condition of the injured on 06.04.2000. However, the injured was declared
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unfit to make a statement by the doctor as per report Ex.PM/1. On
22.04.2000, the report under Section 173 Cr.P.C. was prepared by
Inspector Dhan Raj/SHO and he identified his signatures on the challan.
31. Testimony of remaining witnesses is formal in nature. S.I.
Balkar Singh while appearing as PW6 has proved ruqa Ex.PI and FIR
Ex.P1/2. Constable Yash Pal while appearing as PW7 has proved the
scaled site plan Ex.PJ of the place of occurrence which was prepared by
him on the asking of S.I. Udey Pal Singh and de bvposed that the scale
used was 1cm= 1m. H.C. Baldev Singh while appearing as PW8 proved
copy of DDR No.28, dated 23.2.2000 as Ex.PK and DDR No.28. dated
25.2.2000 as Ex.PK/1. Sub Inspector Ved Parkash, while appearing as
PW10 deposed that on 22.5.2000, he had recorded the statement of injured
Sunil Kumar at his residence. After completion of investigation, the report
under Section 173 Cr.P.C. was prepared by Inspector Dhan Raj.
32. As a result of aforesaid discussion, I am of the considered
opinion that from the evidence led on file, it is established that on
23.02.2000 at about 08:00 AM, injured namely Sunil Kumar was going to
drop his children when a verbal duel started over hen droppings between
him and accused namely Bittoo @ Sohal Lal, Tinku and Sonu and
thereafter, all the accused started beating him. Accused Banwari Lal hit
one thapi in his head while accused Tinku hit him in his head with a
hockey like stick while accused Bittoo hit him with a brick and Mohan Lal
@ Sonu, who has since been declared juvenile, caused injuries to him with
fist and slap blows. When his brothers namely Rajinder Kumar and Pappu
arrived at the spot, accused Banwari Lal gave a thapi blow on the head of
Pappu and one blow on the leg of Rajinder Kumar while Bittoo gave one
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brick blow on the waist of Rajinder Kumar and face of Pappu and accused
Tinku also gave hockey blow to Pappu. As such, intention to cause injuries
developed at the spur of the moment and in furtherance of their common
intention, all the accused caused injuries to Sunil Kumar, Pappu and
Rajinder Kumar. Injured Sunil Kumar suffered grievous and simple
injuries while Pappu and Rajinder Kumar suffered simple injuries and
prosecution has thus successfully proved its case against the accused for
the offences under Sections 323, 325/34 of IPC. However, charge under
Section 307 of IPC is not proved as it is not established that injured
namely Sunil Kumar had suffered any injury which could be declared as
dangerous to life and sufficient to cause death in ordinary course of nature
or that blow in the head was given by accused Banwari Lal and Tinku with
an intention to kill him as no blow were repeated by them. As such,
accused have been wrongly held guilty and convicted for the offence
under Section 307 of IPC and same is thus not sustainable.
33. Resultantly, the appeal in hand is partly accepted and the
appellants are acquitted of the charge under Section 307 of IPC. However,
the accused are held guilty and convicted for the offences under Sections
323, 325 read with Section 34 of IPC and they are sentenced to undergo
imprisonment for a period of three years and fine of Rs.1000/- each for the
offence under Section 325/34 of IPC. In default of payment of fine, they
shall undergo simple imprisonment for a period of two months. However,
the sentence imposed upon the appellants for the offence under Section
323/34 of IPC by the trial Court is maintained along with the default
sentence already ordered. All the sentences shall run concurrently.
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Appellants be taken into custody to carry out the sentence and a copy of
this judgment be sent to the trial Court for compliance.
12.01.2026 (YASHVIR SINGH RATHOR)
Priyanka Thakur JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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