R.L. Anand, J.
1. Shri Nihal Singh, his two sons Shri Ram Singh and Hari Singh have filed the present criminal appeal and it has been directed against the judgment dated 8.3.1989 passed by the learned Additional Sessions Judge, Sangrur, who convicted the appellants under Sections 307, 325, 324 and 323 read with Section 34 of the Indian Penal Code and sentenced them to various imprisonments as mentioned in the judgment. The highest sentence is of four years under Section 307 Indian Penal Code to Nihal Singh and under Section 307 read with Section 34 I.P.C. to two others.
The brief facts of the case are that on 28.6.1986, Mohinder Singh PW, resident of village Khurana was preparing the fields known as Barotianwala for planting paddy. His daughter Bant Kaur had gone to that filed with his meals. It is further alleged that at about 10.00 a.m. Mohinder Singh started ploughing the fields after taking meals. In the meanwhile, Nihal Singh, Ram Singh and Hari Singh came there in a tractor. The tractor was parked at a distance of 11/2 killas. At that time Nihal Singh was armed with a Gandasi, Ram Singh was armed with a Takwa and Hari Singh was armed with Soti on which an iron nail on one end was fitted and they all came in the field where Mohinder Singh was ploughing. Nihal Singh raised a Lalkara that Mohinder Singh should be taught a lesson for ploughing the land. Nihal Singh appellant gave a Gandasi blow on the left side of the head of Mohinder Singh. After receiving the injury Mohinder Singh fell down. Nihal Singh also gave another Gandasi blow on the right side of the forehead of Mohinder Singh. Bant Kaur tried to fell on Mohinder Singh but Nihal Singh pushed her by catching her from her long hair. She raised alarm which attracted Chuhar Singh to the spot. The appellants continued giving blows with the reverse side of their respective weapons to Mohinder Singh and thereafter they ran away in the tractor. Bant Kaur and Chuhar Singh lifted Mohinder Singh and took him to Civil Hospital, Sangrur in a tractortrolley where he was medically examined by Dr. Suresh Kumar. The appellants were arrested.
2. After completion of the investigation of the case, the appellants were challaned in the court of Area Magistrate, who supplied the copies of documents to them and committed them to the Court of Session to face the trial.
3. The learned trial Court framed charges under Sections 307, 325, 324 and 323 read with Section 34 I.P.C. against the appellants and the charges were read over and explained to the appellants to which they pleaded not guilty and claimed a trial.
4. In order to prove the charges the prosecution examined as many as 9 witnesses including Bant Kaur complainant and Mohinder Singh, the injured witness. Independent eye witness Chuhar Singh was not examined.
5. On the closure of evidence of the prosecution, appellants were examined under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. They denied those circumstances and it was pleaded by them that they have been falsely implicated.
6. The learned trial Court believed the story of the prosecution and convicted and sentenced the appellant in the manner as stated above and aggrieved by their conviction and sentence, the present appeal.
7. I have heard the learned counsel for the parties and with their assistance have gone thought the records of the case.
8. The learned counsel appearing on behalf of the appellants submitted that Ram Singh and Hari Singh sons of Nihal Singh have been falsely implicated in this case as no specific injury has been attributed to them. On the contrary the learned counsel for the respondent submitted that in the FIR a specific role has been attributed to these two appellants and, therefore, they have been rightly convicted for he various offences. I do not subscribe to the argument raised by the learned counsel for the respondent. No doubt, in the FIR a specific role has been attributed to these appellants but we all know that the FIR is not a substantive piece of evidence and it is only a corroborative piece of evidence to the maker thereof. Band Kuar appeared as PW3 in the trial Court and as per her substantive statement, all the three appellants continued giving blows with the reverse side of their respective weapons to Mohinder Singh. No specific injury has been attributed to Hari Singh and Ram Singh. Similarly the injured witness Mohinder Singh (PW5) stated before the trial Court as follows :
"................Accused Ram Singh and Hari Singh gave many blows to me with their respective weapons. Chuhar Singh came there after hearing Raula..........."
9. Chuhar Singh has not been examined in this case. Even as per the statement of Mohinder Singh, no specific injury has been attributed to these two appellants. There were 7 injuries on the person of the injured and these injuries could be caused by one assailant. Keeping in view the fact that appellants Hari Singh and Ram Singh are sons of Nihal Singh, therefore, they might have been falsely implicated in this case. Their case has become doubtful. So, by extending the benefit of doubt to Ram Singh and Hari Singh, their appeal is hereby accepted and conviction and sentence visavis these two appellants under various charges is hereby set aside.
10. Reverting to the case of Nihal Singh, the learned counsel for the appellants submitted that the learned trial Court fell in error in recording conviction under Section 307 I.P.C. He submitted that injury No. 2 does not make out a case under Section 307 I.P.C. He submitted that at the most offence under Section 234 I.P.C. is made out against Nihal Singh appellant. This submission of the learned councel for the appellants is partly correct and I am inclined to agree with him that the offence under Section 307 I.P.C. is not made out, but definitely offence under Section 326 I.P.C. is always on the cards. During the course of investigation the Investigating Officer took the opinion from the doctor on 10.7.1986 and the doctor stated that injury No. 3 was grievous as there were fractures of 5th, 6th and 7th ribs as per Xray report. Injury No. 2 was declared dangerous to life but no reasons were given. Again the opinion of the doctor was sought on 17.9.1986 with regard to injury No. 2 and it was opined by the doctor that as there was internal injury to brain, therefore, he cannot declare this injury as simple in nature. Again on 23.9.1996 this very doctor declared injury No. 2 as grievous as there was bleeding from this injury. In view of this opinion of the doctor, I am inclined to hold that the offence under Section 307 I.P.C. is not made out, but definitely the said appellant is guilty for the offence under Sections 326 and 325 for causing injuries to his brother Mohinder Singh. Thus the conviction of Nihal Singh under Section 307 I.P.C. is hereby set aside and he is convicted under Section 326, 325 and 324 I.P.C. for causing grievous and simple hurts to his brother Mohinder Singh.
11. As I have already set aside the conviction of Nihal Singh under Section 307 I.P.C., therefore he is sentenced to undergo rigorous imprisonment for 2 years under Section 326 I.P.C. and one year under Section 325 I.P.C. I need not pass any separate sentence in view of the sentence awarded to the appellant under Section 326 I.P.C. All the sentences shall run concurrently.
12. With above observations the appeal of Ram Singh and Hari Singh is allowed and the appeal of Nihal Singh is partly allowed. Let intimation be sent to Chief Judicial Magistrate, Sangrur regarding awarding of sentence to Nihal Singh.
