Punjab-Haryana High Court
***** vs State Of Haryana on 12 September, 2012
Author: Rakesh Kumar Jain
Bench: Jasbir Singh, Rakesh Kumar Jain
CRA-624-DB-2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRA-624-DB-2007
Date of Decision:12.9.2012
*****
Inder Singh and others . . . .Appellants
Versus
State of Haryana . . . . Respondent
*****
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH, ACTING CHIEF JUSTICE
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
*****
Present: Mr.KDS Hooda, Advocate, for the appellants.
Ms.Sandeep Varmani, Addl. A.G. Haryana.
Mr.M.B. Jain, Advocate, for the complainant.
*****
RAKESH KUMAR JAIN, J.
The appellants have been convicted for offences punishable under Sections 148, 323 read with Section 149, Section 302 read with Section 149 and Section 449 of the Indian Penal Code, 1860 (for short 'IPC') vide order dated 19.7.2007 and have been sentenced on 21.7.2007 as under: -
Offence : Sentence
U/s 148 IPC : Rigorous imprisonment
for one year to each
convict.
U/s 323 read with : Rigorous imprisonment
Section 149 IPC for six months to each
convict.
U/s 302 read with : Rigorous imprisonment
CRA-624-DB-2007 -2-
Section 149 IPC for life and to pay a fine
of Rs.5000/- each. In
default of payment of
fine. Rigorous
imprisonment for two
months.
U/s 449 IPC : Rigorous imprisonment
for ten years and to pay
fine of Rs.1500/- each.
In default of payment of
fine to further undergo
RI for one month.
All the aforesaid sentences were ordered to run
concurrently and the period spent in custody during trial was ordered to be set off against the substantive sentence according to the appellants.
During the course of hearing, it is brought to our notice that appellant No.5 Kamal alias Balia son of Randhir had unfortunately expired, therefore, his appeal stands abated.
The complaint (Ex.PJ) was lodged by Dharampal (PW5) on 7.6.2002 and formal FIR (Ex.PJ/2) was registered in which it was alleged that the complainant is the resident of Village Mehnda and an agriculturist by profession. His house adjoins the house of Kamal alias Balia s/o Randhir and has a dispute regarding wall since long in which even stay has been obtained from the Court. On 7.6.2002, children of his brother Jaipal were taking bath inside their CRA-624-DB-2007 -3- house when Hukmi wife of Randhir came to their house and asked as to why do they gave bath to their children at that place as the dirty water comes to their house. Roshni wife of his brother Jaipal replied that in future they will not bathe their children at that place. Thereafter Vikas alias Vikki, Balian alias Kamal sons of Randhir, Inder son of Sariya, Satish son of Balbir, Balraj and Subhash sons of Balbir, Maya wife of Raja, caste jat, residents of the village, with their common intention, armed with lathis, came to the house of his brother Jaipal. Vikas gave lathi blow on the head and face of his brother Jaipal, Balia alias Kamal hit with lathi on the foot of Jaipal, Inder hit with lathi on both of his shoulders, Satish hit with lathi on his head, Balraj hit with lathi on the head of Roshni and Subhash hit with lathi on the left shoulder of Roshni, Hukmi wife of Randhir and Maya w/o Raja hurled brick bats and stones after taking the same from there. This occurrence took place at about 1.00 PM. They also gave injuries to them in their self-defence and raised alarm which attracted Dilbagh son of Mai Ram and Suresh son of Hari Singh, caste jat, residents of the village. On seeing them coming, the assailants escaped otherwise they would have killed. While leaving, they also gave threats that in future if they entangled with them then they would be done to death. Then his brother Mohan Lal arranged a conveyance and took them for treatment and got admitted in the hospital.
Dr. S.K. Gupta (PW2), Medical Officer, General Hospital, Hansi, examined Jaipal, Dharampal and Roshni and found following injuries:
CRA-624-DB-2007 -4-
"1. Lacerated wound 1-1/2 x 1-1-2 cm. into scalp deep on right side of occipital region of scalp. Clotted blood was present.
2. Lacerated wound 7 x 1/2 cm. into bone deep on posterior part of right parietal portion of scalp. Clotted blood was present.
3. Lacerated wound 3 x 1/2 cm. into scalp deep on left parietal portion of scalp. Clotted blood was present.
4. Abrasions 2-1/2 x 1 cm and 4 x 1 cm on let side of the face. Injury was kept under observations.
5. Lacerated wound 2-1/2 x half cm.
on right knee joint.
6. An abrasion 1-1/2 x 1/2 cm on left leg."
The injuries No. 5 & 6 were declared simple and all the injuries were found to have been caused by blunt weapon within the duration of six hours but Jaipal was referred to PGIMS Rohtak on the same day.
The injuries suffered by Dharampal were as under:
"1. Lacerated wound 8 x 1/4 cm. into bone deep on left parietal portion CRA-624-DB-2007 -5- of scalp, 6 cm away from mid line. Clotted blood was present.
2. Defused swelling 4 x 4 cm. on posterior part and mid line on occipital region of scalp.
Both the injuries were kept under observation and X-ray of skull was advised.
3. Fresh abrasions 3 x 1/2 cm. and 1-1/2 x 1/2 cm. on left shoulder."
The injuries were declared simple having been caused by blunt weapon during the duration of six hours.
The injuries suffered by Roshni were found as under:
"1. Lacerated wound 3 x 1/2 cm into scalp deep on right parietal portion of scalp. 5 cm right to mid line. Clotted blood was present.
The injury was kept under observation and X-ray of skull was advised.
2. Complain of pain on left shoulder.
No external sign was present." It was observed that injuries were caused with blunt weapon within six hours. On 16.6.2002, police moved an application (Ex.PG) for examination of Kamal son of Randhir Singh and Balraj son of Balbir. He testified his report Ex.PG/1 of Kamal CRA-624-DB-2007 -6- and Ex.PG/2 of Balraj to the effect that there were no fresh injuries on their persons.
In the cross-examination, he stated that injuries, No.2 and 3 on the person of Jaipal were not on the back of the head. All the injuries on the person of Jaipal could have been caused with brick-bat, brick and lathi. Injuries on the person of Roshni and Dharampal were also stated to be caused by lathi, bricks and brick-bats.
Unfortunately, Jaipal succumbed to injuries at PGIMS, Rohtak and offence under Section 302 IPC was added. On 8.6.2002, postmortem was conducted by Dr. Vimal Sharma, Medical Officer, General Hospital, Rohtak, who appeared as PW8. He found the following injuries on the dead body of Jaipal:-
"1. 3 cm long stitched would on the right occipital region of skull.
2. 3 cm. stitched wound on the posterior part of parietal region of skull at mid line.
3. 4 cm. long stitched wound on the posterior part of right parietal region of skull, 3.5 cm below the injury No.2.
4. Lacerated wound 2 cm. x 0.5 cm.
into skin deep on the mid of left cheek.
5. Stitched wound of right knee joint 2 cm. long.CRA-624-DB-2007 -7-
6. Reddish abrasion 1.5 cm x 0.5 cm on the right knee joint.
7. Reddish abrasion 1.5 cm x 0.5 cm on the right leg, anterior surface middle 1/3."
The cause of death in his opinion was due to head injury and its complications. Injuries were ante-mortem in nature and sufficient to cause death in the normal course.
In order to prove his case, the prosecution examined nine witnesses including PW2 and PW8 and tendered in evidence FSL report Ex.PAA and PAA/1.
The appellants thereafter were examined under Section 313 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.). They denied involvement, pleaded innocence and alleged that Chattar Singh, Reshma wife of Chattar Singh, Dharmpal, Jaipal, Mohan, Roshni and Santosh entered into their house forcibly and caused injuries to Vikki, Balraj, Kamal and Hukmi Devi and in order to save themselves Guddi and Randhir Singh gave brick blows to the aforesaid persons who ran away from their house after extending threats of dire consequences. They were shifted to Government Hospital, Hansi, where the police came but no action was taken rather they have been involved in the false case. In their defence evidence, they examined Dr.D.S. Lamba (DW1), Guddi (DW2) and Head Constable Suresh Kumar (DW3) and tendered copy of complaint (Ex.D5) and copy of DDR (Ex.D6). Subhash Chander Draftsman (PW1) prepared scaled site plan (Ex.PA) of the place of occurrence. HC Daya Nand (PW3) tendered his affidavit (Ex.PH) CRA-624-DB-2007 -8- testifying handing over the case property to Constable Satbir Singh No.937 vide RC No.255 dated 25.6.2002 for depositing the same with D/FSL, Madhuban and received a receipt. The case property was not tampered with so long as it remained in his possession. Constable Satbir Singh (PW4) tendered affidavit (Ex.PI) that he had deposited the case property with D/FSL Madhuban on the same day i.e. 25.6.2002 in an intact condition and handed over the receipt to the MHC. He stated that case property was not tampered with so long it remained with him. Dharampal (PW5) is the complainant and eye-witness. In his examination-in-chief, he reiterated the stand taken in Ex.PJ and Ex.PJ/2. Similarly Roshni Devi (PW6), the other injured eye-witnessed had taken the same stand as that has been taken by PW5. Sub Inspector Ishwar Singh (PW7) had partly investigated the case. He deposed that on 7.6.2002, he was posted as SI/SHO in Police Station, Sadar, Hansi. On that day, MHC Daya Nand received a VT (Ex.PK), added Section 302 IPC, sent special report (Ex.PL) through Constable Mehar Singh to Illaqa Magistrate and he along with other officials proceeded for PGIMS Rohtak where ASI Randhir Singh met him at bus stand Garhi, who took over the investigation of the case from him. On 8.6.2002, he prepared the inquest report (Ex.PN) of the dead body of Jaipal in the presence of Hoshiar Singh and Ved Parkash and made an application (Ex.PO) for conducting the postmortem. He handed over the dead body to HC Balbir and Constable Ram Chander and along with other officials reached village Mehnda and searched for the accused but they were not available. On 11.6.2002, he arrested Subhash, Satish, Vikki alias Vikas and Inder. On 12.6.2002, Dalip and Hoshiar Singh came CRA-624-DB-2007 -9- present in Police Station, Sadar Hansi and made disclosure statement. He interrogated Subhash in their presence, who made disclosure statement (Ex.PQ) about concealing one lathi in the woods lying on the roof of the bathroom and latrine of his house. Simultaneously, he interrogated Vikki alias Vikas, who made disclosure statement (Ex.PR) regarding concealment of one lathi used for crime in the fodder lying in the chobara of his house, which was got recovered. He arrested Kamal and Balraj on 14.6.2002. Kamal made a disclosure statement (Ex.PU) and recovered phawra from woods lying on the roof of the room used for tethering cattle and Balraj made disclosure statement (Ex.PV) about concealment of lathi used in the commission of crime on the roof of his residential house. On 16.6.2002, Hukmi and Maya were also arrested. After recording the statements of the formal witnesses, challan was presented on 9.7.2002. ASI Randhir Singh (PW9) deposed that on 7.6.2002 he was at Police Station, Sadar Hansi and received ruqa (Ex.PE) from Government Hospital, Hansi. He visited there and moved an application (Ex.PX) to know if Jaipal, Dharampal and Roshni were fit to make statement. Dharampal and Roshni were found fit whereas Jaipal was referred to PGIMS Rohtak. He recorded the statement of Dharampal (Ex.PJ) and made his endorsement (Ex.PJ/1) and sent the same to Police Station through Constable Alok Kumar for registration of the case. MHC Daya Nand (PW3) recorded formal FIR (Ex.PJ/2). He moved an application (Ex.PF) to know the nature of injuries to Jaipal. He prepared rough site plan of the place of occurrence and lifted blood stained earth and put in a sealed parcel. He also lifted blood stained wooden phatti and Parna, CRA-624-DB-2007 - 10 -
put in sealed parcel which was taken into possession vide memo Ex.PZ. At the same time, SI/SHO Ishwar Singh met him at the bus stop of village Garhi and informed that Jaipal has expired and handed over the investigation of case to him.
The prosecution gave up Dilbagh and Suresh as having been won over by appellants and PWs Ved Parkash, Hoshiar Singh, Bal Kishan, Chattar Singh, Dalip Singh and Mohan as unnecessary.
The appellants had also led evidence in defence. Dr. D.S. Lamba (DW1) deposed that on 7.6.2002 he medico legally examined Balraj son of Balbir, Vikki son of Randhir, Kamal son of Randhir and Hukmi wife of Randhir Singh and prepared their MLRs and proved the same as Ex.D1 to Ex.D4, respectively. Guddi (DW2) wife of Kamal stated that on the date of occurrence she had gone on the roof to collect the clothes left for drying. She heard noise from the downstairs and saw that Chhatru, Jaipal, Dharampal, Mohan, Roshni, Santosh and Reshma were giving beatings to her husband Kamal, her mother-in-law Hukmi, Balraj and Vikas. They were armed with lathi, danda and mogra. She threw brick bats from the roof to save them which hit Jaipal, Roshni and Dharampal. Thereafter she came down. Her father-in-law Ranbir also came who gave lathi blows. Head Constable Suresh Kumar (DW3) stated that DDR No.30 dated 7.6.2002 pertaining to Police Station, Sadar Hansi has been destroyed.
During the course of hearing, learned counsel for the appellant has admitted that in the cross case filed by accused, the complainants have been acquitted on 19.7.2007.
CRA-624-DB-2007 - 11 -
Opening his arguments, learned counsel for the
appellants has submitted that even according to the prosecution version, the quarrel took place on the trivial issue of flowing of dirty water from the house of the complainant into the house of appellants. He submits that there was no intention of causing death of Jaipal, who has been caused injuries with lathi as projected by the prosecution. He further submits that except for Vikki alias Vikas (appellant No.2) and Kamal alias Balia (appellant No.5), no one had caused any injury to deceased Jaipal. They have allegedly caused injuries to PW5 and PW6 whereas the appellants No.7 and 8 did not cause any injury to anyone. He further submitted that injuries caused to PW5 and PW6 have been found to be simple in nature and at the most falls within the definition of Section 323 IPC as it was not their common object, therefore, Section 149 IPC has been wrongly applied to punish all the appellants for offence under Section 302 read with Section 149 and sentenced them for life imprisonment.
It is also argued that the place of occurrence has not been established because in the month of June in Hansi, District Hisar and it cannot be believed that Jaipal was sitting on the roof of the house at 1.00 PM (noon) where there was no shade or shadow of any tree.
In reply, counsel for the State assisted by counsel for the complainant has argued that the occurrence has not been denied by the appellants rather it has been alleged that they have caused the injuries in their self-defence as the complainants were the aggressors, who entered their house. It is also submitted that insofar CRA-624-DB-2007 - 12 -
as place of occurrence is concerned, it has come in the statement of PW6 that she along with her husband Dharampal were on the roof of their house. This fact corroborates with the testimony of ASI Randhir Singh (PW9), who has recovered blood stained earth, wooden phatti and parna from the roof, which have been testified by FSL smeared with human blood.
We have heard learned counsel for the parties and have perused the record.
The argument with regard to place of occurrence is inconsequential because Roshni Devi (PW6) has categorically stated that she along with her husband Dharampal (PW5) was on the roof from where blood stained earth, wooden phatti and parna has been recovered by the Investigating Officer and are found smeared with human blood, in the report of the FSL. Insofar as the injuries to the appellants are concerned, Dr.D.S. Lamba (DW1) has stated in his cross-examination that there was no extra ordinary mark of injury on the person of Hukmi and no report of X-ray for any injury was received by him. He was unable to tell as to whether any patient was admitted or not as was not having any record. He has also stated that the injuries could have been caused by brick-bats and could be self suffered. The injuries were also otherwise simple abrasions and lacerations and were not grievous. Dharampal (PW5) in statement (Ex.PJ) and FIR (Ex.PJ/2) had also stated of causing injuries to the appellants in their self defence. Hence, the injuries suffered by the appellants have been explained.
Now the question arises whether all the appellants are guilty of offence under Section 302 read with Section 149 IPC?
CRA-624-DB-2007 - 13 -
After taking into consideration the circumstances of this case, we are of the considered opinion that the injuries on the person of Jaipal are attributed to Vikki alias Vikas and Kamal. Unfortunately, Kamal has expired. The other appellants did not cause any injury to the deceased Jaipal and are alleged to have caused injuries to PW5 and PW6 which have been found to be simple in nature, whereas appellant Nos.7 and 8 did not cause any injury to anyone. There was no common object of the appellants which could attract Sections 148 & 149 of the IPC as they did not know that they were likely to commit the offence of murder.
In view thereof, we find that the appellants deserves to be convicted and sentenced for the offence individually committed by them. Since Vikki alias Vikas (appellant No.2) had caused injury on the head of Jaipal who ultimately expired, he has rightly been punished for offence under Section 302 IPC and as such, the appeal qua him is hereby dismissed. Appellant Nos.1, 3, 4 and 6, who have caused injuries to PW5 and PW6 which have been found to be simple in nature, are, thus, guilty of offence only under Sections 323 and 449 of IPC. This Court is informed by counsel for the appellants that all the appellants have suffered 3-½ years of sentence as of now. They have been sentenced under Section 323 IPC for six months and under Section 449 IPC for 10 years but as there is no minimum sentence provided under Section 449 IPC and the injuries caused by appellant Nos.1, 3, 4 and 6 were fond to be simple in nature, we maintain their conviction under Sections 323 & 449 IPC but set them free by reducing their sentence under Section 449 IPC to three CRA-624-DB-2007 - 14 -
years, as already been undergone by them. Insofar as the appellant Nos.7 and 8 are concerned, we have found that they have not caused any injury to anyone and appears to have been involved falsely, therefore, they are hereby acquitted of all the charges against them.
The appeal is, thus, disposed of accordingly.
[ JASBIR SINGH ] [ RAKESH KUMAR JAIN ] ACTING CHIEF JUSTICE JUDGE 12.09.2012 vinod*