Punjab-Haryana High Court
Banarsi Dass And Others vs State Of Punjab on 15 February, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No. 1595-SB of 2002 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Crl. Appeal No. 1595-SB of 2002
Date of decision: February 15, 2012.
Banarsi Dass and others
... Appellant (s)
v.
State of Punjab
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri APS Mann, Advocate, for the appellant.
Shri K.S. Aulakh, Assistant Advocate General, Punjab.
Kanwaljit Singh Ahluwalia, J. (Oral):
Present appeal was preferred by Banarsi Dass and his two sons Binder alias Balwinder Singh and Sarabjit Singh @ Sabha. They were nominated as accused in case FIR No.88 dated 10.6.1998, registered at Police Station Division No.6, Jalandhar under Sections 307, 326, 324/34 IPC.
On 9.6.1998 at about 1.30 p.m., all the three appellants had caused injuries to Rajinder Kumar PW8. The matter was reported to the police by Bakshi Ram PW7, father of Rajinder Kumar. The trial court vide impugned judgment dated 24.9.2002 held appellant Banarsi Dass guilty of offence under Section 326, 324, 307 read with Section 34 IPC, appellant Binder for offence under Sections 307, 324, 326 read with Section 34 IPC Crl. Appeal No. 1595-SB of 2002 -: 2 :- and appellant Sarabjit @ Sabha was substantively convicted for offence under Section 324 and Sections 326, 307 read with Section 34 IPC. During the pendency of appeal, Banarsi Dass appellant is stated to have died, hence vide a separate order dated 25.5.2011 it has been ordered that the appeal qua him shall abate.
The prosecution case emerged in the statement Ex.PG made by Bakshi Ram PW7. In his statement Bakshi Ram stated that he was a resident of 7A Jyoti Nagar, Jalandhar and was doing agricultural work. On 9.6.1998 at about 1.30 p.m., he along with his son Rajinder Kumar was present at his tubewell at that time accused Banarsi Dass armed with kirpan, his son Sarabjit Singh alias Sabha armed with datar and Bhupinder Singh alias Binder armed with Kirpan and Amritpal Singh c/o Kesar Petrol Pump empty handed arrived at the spot and started hurling abuses. Bakshi Ram restrained them, upon which Amritpal Singh raised a lalkara that the complainant party should be finished and he shall be responsible for the consequences. It is stated that at that time Banarsi gave two blows with kirpan to Rajinder Kumar which caused injuries on the back of his left hand. Bakshi Ram and his son Rajinder Kumar ran away from the spot. The accused followed them. In front of the shop of Mittal Property dealer, Sabha gave a datar blow on the hand of Rajinder Kumar. The same accused caused injury on the right side of head. Rajinder Kumar fell on the ground. Then Binder gave a blow with kirpan which hit on his wrist of right arm. Bakshi Ram raised noise due to which the accused decamped from the spot along with their weapons. Rajinder Kumar became unconscious and he was taken to the hospital by Bakshi Ram PW7 where he Crl. Appeal No. 1595-SB of 2002 -: 3 :- was medico-legally examined. The cause of grudge for causing injuries was criminal litigation pending between the parties as in one of the case Banarasi Dass was convicted. The complainant also brought blood stained shirt, pants and banyan before ASI Dilbagh Singh who had recorded statement Ex.PG on the basis of statement, formal FIR Ex.PG/1 was registered. The above stated FIR was investigated; report under Section 173 Cr.P.C. was submitted. On 13.10.1998, the appellants were charged by the court of Additional Sessions Judge, Jalandhar. The charge stated that on 9.6.1998 at about 1.30 p.m. within the limits of Jyoti Nagar, Jalandhar, in furtherance of common intention of all the accused, Binder voluntarily caused injuries on the person of Rajinder Kumar with such intention and under such circumstances that by that act death of Rajinder Kumar would have been caused, he would have been guilty of offence of murder, thus, he committed the offence under Section 307 IPC and the other accused were charged with the aid of Section 34 IPC. On 12.9.2002, Banarasi Dass was charged substantively for the offence under Section 326 IPC whereas the other accused were charged with the aid of Section 34 IPC. Sabha was substantively charged for the offence under Section 324 IPC and other accused with the aid of Section 34 IPC. Accused pleaded not guilty to the charge and claimed trial.
Prosecution examined PW1 Dr. Swaran Singh who stated that on 9.6.1998, he was posted as medical officer at Civil Hospital, Jalandhar. On that day at 2.20 p.m., he examined Rajinder Kumar and found following injuries on his person:-
1. A lacerated wound 7" x 1/2" bone deep on the parietal region Crl. Appeal No. 1595-SB of 2002 -: 4 :- of the head near the mid line suture, 1/2" on the right side of the mid line. The wound was bleeding profusely, advised ex-ray and wound stitched.
2. A 3" x 1/2" lacerated wound on the dorsal aspect of the left hand. The wound was bone deep. The underline tendons were cut and wound bleeding profusely. Advised x-ray.
3. A 1" x 1/2" incised wound on the dorsal aspect of the right forearm in its lower 1/3rd. The wound was skin-deep."
Under the orders of the Medical Superintendent, Civil Hospital, Jalandhar, a medical board was constituted to re-examine Rajinder Kumar. The board, on re-examination, found following five injuries on the person of Rajinder Kumar:-
1. Stitched wound of 12 cm tilted C shaped on the right parietal region of scalp. X-ray was advised.
2. Stitched wound of 5 cm length on dorsal aspect of left hand.
Patient was unable to extend the middle finger of this hand indicating injury to extensor tendens of middle finger. X-ray was advised for any bony legion.
3. Scabbed abrasion reddish brown in colour of 6 cm length on the dorsal aspect of left hand, crossing injury No.2 and medial end of wound was skin deep, wound was linear in manner.
4. Scabbed wound of reddish brown colour, 4 cm in length on dorsal aspect of right forearm in lower 1/3rd part.
5. A gaping wound of 5 cm x ½ cm on left side of scalp in Crl. Appeal No. 1595-SB of 2002 -: 5 :- fronto parietal region, clotted blood was present in and around the wound, and margins were in healing process. X- ray was advised.
Injuries No.2 and 5 were declared as grievous.
PW3 Dalip Singh Draftsman had prepared the scaled site plan Ex.PC . PW4 Gopal Krishan tendered his affidavit to prove link evidence. PW5 SI Suresh Chander had effected arrest of Binder accused and after recording his disclosure statement Ex.PE, recovered kirpan from his possession. PW6 Dr. Ashok Bhagat found that X-ray of skull revealed fracture of the left side of the frontal bone. However, X-ray of the left hand revealed no fracture.
Bakshi Ram complainant appeared as PW7. In the court, he gave version which read as under:-
"... Banarasi Dass gave two kirpan blows to my son Rajinder Kumar which fell on his left hand i.e., towards the back side of the hand. I and my son in order to save ourselves ran towards the road side. My son when reached near Mittal Property Dealer, the accused again attacked my son. Sarabjit alias Sabba accused present in the court gave dang blow which hit on the towards right side of the head of Rajinder Kumar and my son fell down and then Binder accused present in the court gave a kirpan blow which hit towards the left side of the forehead of Rajinder Kumar. Then Binder again gave a kirpan blow which hit on his right arm. ..."
This witness was confronted with his previous statement Ex.PG Crl. Appeal No. 1595-SB of 2002 -: 6 :- where no injury has been attributed to Binder on the forehead. Bakshi Ram stated that Banarasi Dass was his real brother and there was a land dispute pending between them and furthermore, regarding the disputed property, the police had initiated proceedings under Section 145 Cr.P.C.
Rajinder Kumar injured appeared as PW8 and reiterated as to what was stated by his father Bakshi Ram PW7. PW12 Bhajan Singh, another eye witness, stated that Sabha was armed with datar, Binder with a kirpan and they came along with Banarsi Dass. He had seen the accused following Rajinder Kumar. Sabha had given a datar blow on the right side of head of Rajinder Kumar, Binder accused gave a kirpan blow which hit on the left side of the temple of Rajinder Kumar. Binder gave another kirpan blow which hit on the left arm above the wrist.
PW14 ASI Dilbagh Singh proved various facets of the investigation.
After prosecution closed its evidence, statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to them. The accused had projected a version that Rajinder Kumar PW8, accompanied by his associates, had gone to take forcible possession of the land, a dispute arose and the persons who were working in the fields, had caused injuries to Rajinder Kumar.
Three witnesses have been examined in defence. DW1 Rajesh stated that no occurrence had taken place. DW2 Sant Charan Dass Chela Pritam Dass and DW3 Daulat Ram were examined to prove the plea of alibi raised by Banarasi Dass.
Shri APS Mann, Counsel appearing for the appellants, has Crl. Appeal No. 1595-SB of 2002 -: 7 :- stated that Bakshi Ram PW7 was not present at the spot as he had received no injury in the occurrence. Counsel states that there was enmity with Bakshi Ram as he was embroiled in a litigation with his brother Banarsi Dass accused and therefore, accused would not have spared Bakshi Ram had he been present at the spot. Picking cue from this argument, Shri Mann has further stated that Rajinder Kumar PW8 was found unconscious and out of necessity, he has followed the version given by Bakshi Ram PW7 who was not the witness of the occurrence. Shri Mann states that medical evidence contradicts ocular version. It is stated that it has emerged in the testimony of PW1 Dr. Swaran Singh that Rajinder Kumar had suffered only three injuries and therefore, FIR was lodged on the next day. Consequently ocular version was modulated to synchronize with the injuries found by PW1 Dr. Swaran Singh. Counsel states that subsequently on the order of the Chief Medical Officer, a Board of Doctors was constituted to re-conduct the medical examination and at that time five injuries were found on the person of Rajinder Kumar. Therefore, to suit the change in the injuries, Bakshi Ram and Rajinder Kumar changed the version and distributed those five injuries to the accused to bring ocular version in conformity with medical evidence. It is stated that the injury which was found on the left side of the head and was declared as grievous, was later attributed to Binder. It is further contended that it is Binder who has been substantively charged and convicted for offence under Section 307 IPC. Therefore, the entire prosecution case has to fall on ground because of inherent improbabilities and weakness.
Shri K.S. Aulakh, Counsel appearing for the State, has Crl. Appeal No. 1595-SB of 2002 -: 8 :- submitted that Rajinder Kumar has suffered six injuries in the occurrence and two injuries have been declared as grievous, therefore, Rajinder Kumar would be the last person to substitute the accused.
I have given by thoughtful consideration to the submissions advanced by Counsel for the parties. There is no doubt that with the passage of time, blemish indeed has crept in the prosecution version. In the FIR itself, accused Banarasi Dass, Sabha and Binder were assigned one injury each. This corroborate with medico-legal examination conducted as, Dr. Swaran Singh had found three injuries. It is later when the Medical Board had re-conducted medico-legal examination that five injuries were found. A close look at the report of Medical Board would reveal that injuries No.2 and 3 are result of one blow; injury No.3 is not an independent injury but abrasion on the same place, scab abrasion close to the seat of injury No.2. Dr. Swaran Singh PW1 has admitted that injury No.5 which is a gapping wound on the left side of parietal region may be the result of stitches applied. It is common in the case of skull injury that fracture is not only caused where the blow lands but its impact also causes fracture of other part of the skull.
The Twenty-Second Edition of Modi's Medical Jurisprudence and Toxicology states that:-
"SKULL: The type of skull fracture that may result from violence depends on the shape of the skull, mobility of the skull, presence of scalp hair, coverings on the head like a cap, hat, turban etc. weight and velocity of the weapon, the amount of force, the type of appliance used like a blunt or cutting Crl. Appeal No. 1595-SB of 2002 -: 9 :- weapon, a pointed or edged object or implement, a blade or the use of crushing or grinding force, the area, large or small, to which the force is applied and the varying thickness of the bone, on which its strength depends. The elasticity of the adult skull bone is limited. The outEr and inner table of the skull may suffer damage differently, the shape of the striking object may be marked on the outer table and the secondary fissures may be seen extending from this area, while the inner table could show more extensive damage and splintering. .... During free lathi fights the skull is sometimes smashed into several pieces.
In a case where a man was struck with lathi blows, there was a comminuted fracture of the frontal, left parietal and temporal bones and of the occipital bone. The base of the skull was fractured in the left anterior and the middle and posterior fossae.
In another case where a woman was murdered with lathi blows, there were comminuted fractures of the left temporal, parietal and frontal bones and a simple fracture of the right temporal bone. There was also a separation of the right parietal and temporal sutures, with comminuted fracture of the middle and posterior fossae of the base of the skull.
Due to the blow on the head, there is a first compression of the head directly under the site of the blow along with a sideward Crl. Appeal No. 1595-SB of 2002 -: 10 :- expansion. Usually it is the inner table, which stretches beyond its elastic threshold and fractures."
After describing the fatal fractures, Modi states that:-
"VAULT: A fracture of the vault occurs at the place of contact by direct violence or on its opposite side by contre-coup (counter side) when the head is not supported. It may be depressed, crushed or fissured. An extensive fracture running parallel to the two points of contact (bursting fracture) will occur, if mechanical force is applied on one side of the head, when it is pressed on the other side against a hard substance, such as a wall, while the individual is standing or against the hard ground or floor when he is in a lying posture. In such cases, the fracture may extend transversely to the base of the skull."
Therefore, this Court, while taking totality of circumstances into consideration, is of the opinion that the maxim falso uno falsus omnibus is not to be invoked in the criminal administration of justice in the Indian courts. However, to sift the grain from the chaff, this Court will give credence to the first version which is spontaneous and is contained in the FIR. The first version is a truthful version and is duly corroborated by the medical evidence. This is evident from the testimony of PW1 Dr. Swaran Singh. Banarsi Dass is stated to have caused injury on the back of left hand. Head injury has been attributed to Sabha whereas another injury on the right wrist has been assigned to Binder.
Therefore, injury No.1 found by Dr. Swaran Singh PW1 has been caused by Sabha, injury No.2 by Banarsi Dass and injury No.3 by Binder. That being so, charge framed by the trial court requires to be looked again. Section 464 Cr.P.C. specifically states that any omission, absence or Crl. Appeal No. 1595-SB of 2002 -: 11 :- error in framing of charge will not affect the prosecution case unless the accused is able to show prejudice.
In the present case, from the very first go, it was known that head injury has been assigned to Sabha. Thus, it was Sabha, who should have been initially charged substantively for offence under Section 307 IPC. Whether Sabba has been charged for offence under Section 307 or not, will pale into insignificance, especially when it has come in the prosecution version that after the first blow was given by Banarsi Dass, Sabha and Binder chased Rajinder Kumar and caused him injuries later. Therefore, once the first blow was given by Banarsi Dass, both accused Sabha and Binder had a common intention to commit murderous assault. Therefore, all the accused are to be convicted for offence under Section 307/34 IPC.
Consequently, conviction of Binder alias Balwinder Singh for offence under Section 307 IPC substantively is set aside. However, conviction of appellant Binder and Sabha for offence under Section 307/34 IPC is maintained along with sentence awarded by the trial court. Sabha for offence under Section 307/34 IPC has been sentenced to two years RI. By the same analogy Binder will also have to be awarded sentence of two years RI under Section 307/34 IPC. Conviction qua other offences charged by the trial court is maintained, which shall run concurrently.
With the above said modification, present appeal is disposed of.
[Kanwaljit Singh Ahluwalia] February 15, 2012. Judge kadyan