Punjab-Haryana High Court
Jagat Singh And Another vs State Of Haryana on 19 September, 2008
Author: K.S.Garewal
Bench: K.S. Garewal, Jitendra Chauhan
-Crl. Appeal No. 569 DB of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 569DB of 1998
Date of decision: September 19, 2008
Jagat Singh and another ...Appellants
Versus
State of Haryana ...Respondent
CORAM:- HON'BLE MR. JUSTICE K.S. GAREWAL
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. JS Bedi, Advocate,
for the appellants.
Ms. Navin Malik, additional Advocate General, Haryana.
K.S.GAREWAL, J.
The appellants are two brothers, Jagat Singh and Ajmer Singh of Garhi, Police Station Kalanaour, District Rohtak. The appellants alongwith their father Manphool and another brother Suresh @ Rajal were tried for the murder of Banwari Lal. The appellants were found guilty and convicted vide judgment of the learned Additional Sessions Judge, Rohtak dated November 12, 1998. Jagat Singh was convicted under Section 302 IPC and Ajmer Singh was convicted under Section 302 read with Section 34 IPC. They were also convicted and sentenced for lesser offences. Manphool and Suresh @ Rajal were acquitted.
-Crl. Appeal No. 569 DB of 1998 2
On July 13, 1997 at 9.30 PM Sukh Lal was relaxing in his house in Garhi after dinner. He heard a commotion outside his house. When he came out he saw Manphool's sons Jagat Singh armed with pharsa, Ajmer Singh armed with lathi. They had intercepted Sukh Lal's brother Banwari Lal. Jagat Singh inflicted a pharsa blow on Banwari Lal's head. Ajmer Singh a lathi blow which landed on Sukh Lal's head. Manphool and Suresh also reached there. Manphool hit Banwari Lal's son Ramphal on the back with lathi. Suresh hit Banwari Lal's wife Rameshwari with a brick. Banwari Lal fell down and became unconscious. Siri Bhagwan and Ram Kishan evacuated both Banwari Lal and Sukh Lal to PGI, M.S. Rohtak. Sukh Lal was discharged after first aid.
Banwari Lal was medico-legally examined on July 13, 1997 by Dr. Gautambir (PW-8), Causality Medial Officer at 10.50 AM and found to have the following injury.
"1. Lacerated wound seen on the scalp with clean cut margins 1.5 cm in length and bone deep. Advised x-ray and Surgical opinion to rule out head injury. At 10.50 AM Sukhpal was also medico-legally examined and found to have the following injury.
1. Small lacerated wound 1.5 cm in length seen on the scalp on the right side. A large haematoma, almost 5 cm in dia-meter was seen. Active bleeding from the wound was seen. Advised x-ray and surgical opinion to rule out head injury".
First Information Report in this case was lodged neither by -Crl. Appeal No. 569 DB of 1998 3 Sukh Lal nor on the basis of any statement given by Banwari Lal. It was in fact registered on the basis of the statement of Manphool's wife Samajh Kaur.
According to Samajh Kaur, her son Jagat Singh (appellant 1) had gone to Devender's shop to get a pouch of tobacco. There was an exchange of hot words between Jagat Singh and Sukh Lal's son Umed. Samajh Kaur reached the spot. Umed Singh got infuriated and hit her on the head with a pharsa which he was holding. Parkash hit Jagat Singh on the right wrist with a dang. He also gave a second lathi blow which hit Samajh Kaur on the right arm. In the meanwhile, Sukh Lal's son Ajit and Banwari Lal also reached there armed with lathies. Banwari Lal gave lathi blow on Samajh Kaur's right shin. Ajit gave a lathi blow which hit Jagat Singh's back. Samajh Kaur raised an alarm which attracted Jai Narain and her son Ajmer at the spot to rescue her and Jagat Singh.
Samajh Kaur's statement was recorded by ASI Shiv Singh (PW-
6) at 1.30 am on July 14, 1997 at CHC Kalanaur. The Investigator had earlier received medico legal reports of Samajh Kaur and Jagat Singh from Medical Officer, CHC, Kalanaur, and had reached the Centre to record the statement of the injured. After recording Samajh Kaur's statement, it was sent to the Police Station, Kalanaur, and on its basis FIR was registered at 1.50 AM under Section 323/324/34 IPC.
ASI Shiv Singh had also received a wireless message regarding the admission of Banwari Lal and Sukh Lal at PGIMS, Rohtak, so he rushed to Rohtak. He tried to record the statement of Banwari Lal. However, the doctor opined that Banwari Lal was unfit to make statement but Sukh Lal had been discharged. Therefore, he recorded the statement of -Crl. Appeal No. 569 DB of 1998 4 Sukh Lal and made an endorsement thereon that a cross-case regarding the occurrence had already been registered, therefore, investigation would be under the same FIR.
At this stage, reference can be made to exhibit DB, statement of Dr. Pawan Kumar (PW) in the cross case, State Versus Umed Singh and two others. According to Dr. Pawan Kumar, Samajh Kaur was medico- legally examined on July 13, 1997 at 11.40 PM and found to have the following injuries.
"1. A lacerated injury 2.5 cm x 1 cm x muscle deep was present on the top of scalp lying 10 cms above the root of the nose. Fresh bleeding was present. X-ray skull AP and lateral view was advised.
2. An incised injury 4.5 cm x 1cm x muscle deep (It was bewelling and convex upwards). Fresh bleeding was present. Margins were linear and evenixary skull AP and lateral view was advised.
3. A skin colour swelling which was very tender was present on right hand on dorsal aspect at the root of right index finger. X-ray right hand and AP laterval view was advised.
At 11.55 PM Dr. Pawan Kumar medico-legally examined Jagat Singh and found the following injuries on his person:-
"1. A lacerated wound 5 cm x ½ cm x muscle deep was present on top of scalp lying equally between both ears. Fresh bleeding was present. X-ray skull AP was lateral view was advised.-Crl. Appeal No. 569 DB of 1998 5
2. Right hand was swollen dorsally. It was in red coloured more towards index finger. Movements were painful and restricted. X-ray of right hand AP and lateral view was advised.
3. A bruise 10 cm x 2 cm present on left shoulder blade area. It was red and tender.
4. Another bruise 10 cm x 2 cm was present vertically to injury no.3. It was red and tender. X-ray chest AP lateral view was advised."
On radiological examination, Samajh Kaur was found to have fracture on the first phalanx of index finger of right hand. Jagat Singh was found to have a fracture of the second metacarpal of right hand.
Reverting to the main case, Banwari Lal who was injured on July 13, 1997 had gone into common and had succumbed to injuries on July 20, 1997 at 4 PM. Investigating Officer carried out the inquest on the dead body of Banwari Lal and sent it for post-mortem, which was conducted by Dr. P.P. Lamoria (PW-9) at Civil Hospital Rohtak, at 11.30 AM on July 21, 1997. The Medical Officer found a stitched wound was present at right parietal region bearing seven stitches. Size was 8 x 2 cm. and another stitched wound present extending forward from right parital eminence 7x 2 cm.
On further exploration rounded burr hole right size was 3 x 3 cm. Fracture line extending from right parietal eminence forward. On further deep dissection, laceration of brain tissues on right half with extra dural haemorrhage and intra dural haemorrhage was also present.
The cause of death of the deceased was coma due to -Crl. Appeal No. 569 DB of 1998 6 craniocerebal injuries. The injuries were anti-mortem in nature and sufficient to cause death in the ordinary course of nature.
The accused were arrested on July 23, 1997. A pharsa recovered from Jagat Singh on the basis of his disclosure statement. Lathies were recovered from Ajmer and Manphool on the basis of their respective disclosure statements. After completion of the investigation all the four were sent up for trial. At the trial, charges were framed against Jagat Singh under Section 302 IPC, under Section 302 read with Section 34 IPC against Manphool Singh, Ajmer and Suresh and under Section 323 IPC against Manphool Singh and Ajmer. The main witnesses examined by the prosecution were Sukh Lal (PW-1), Siri Bhagwan (PW-2), ASI Shiv Singh (PW-6), Dr. Gautambir (PW-8) and Dr. P.P.Lamoria (PW-9).
After the conclusion of the trial, the accused were examined without oath under Section 313 Cr.P.C. They denied the various items of incriminating evidence led by the prosecution and pleaded innocence. Jagat Singh pleaded the following counter version:-
"On 13.7.1997 at about 9.30 p.m. I went to the shop of Davender to bring tobacco pouch for my father Manphool Singh. Umed Singh son of Sukh Lal and Parkash son of Sukh Lal met me, who started abusing me. I objected and hot words were exchanged. In the meantime, Umed brought a pharsa and Parkash brought a lathi. Umed gave a pharsa blow on the head of my mother and Parkash gave one lathi blow each to my mother and me. Then Ajit son of Sukh Lal and Banwari, since deceased, came to the spot armed with lathies. They too caused injuries to us. My brother Azmer gave a lathi blow on the head -Crl. Appeal No. 569 DB of 1998 7 of Banwari and rescued us. My father Manphool and my brother Suresh were not present at the spot. Had my brother Ajmer not rescued us, the assailants would have murdered us. The motive was that I had slapped the wife of Umed Singh when she abused me about six months earlier over some quarrel of children. Ramphal, Sukh Lal, Parmeshwari Siri Bhagwan PWs were not present in the assault."
When called upon to enter defence he examined Samajh Kaur (DW-1), copy of report under Section 173 Cr.P.C. in State Versus Umed Singh was tendered as exhibit DA, statement of Dr. Pawan Kumar as exhibit DB and statement of Sukh Lal as exhibit DC.
Jagat Singh's version was also accepted by his brother Ajmer Singh.
The learned Additional Sessions Judge, while discussing the defence case, altogether rejected the argument that the prosecution was required to explain the injuries sustained by the injured. The learned Judge observed as under:-
"...In the instant case, Jagat Singh and Samajh Kaur suffered only simple injuries. The prosecution was not obliged to explain simple and superficial injuries of the accused side but nevertheless, the prosecution has explained even the injuries caused to the accused in self-defence. Dr. Pawan Kumar in his statement Ex. DB, made in the cross-case, stated that Samajh Kaur suffered fracture of first phalanx of right hand index finger and Jagat Singh suffered fractured of second metacarpal of right hand, but these fracture reports have to be taken with a -Crl. Appeal No. 569 DB of 1998 8 pinch of salt."
The defence counsel raised the argument that the injuries of Banwari Lal could not be caused by a pharsa as it was a lacerated wound. Dr. P.P. Lamoria (PW-9) had stated that the lacerated wound on the scalp of the deceased was not possible with a sharp edged weapon. The learned Additional Sessions Judge propounded his own version and held that the injury on Banwari Lal's head was caused by a sharp edged weapon, as under:-
"...In fact this argument has arisen due to mis-description of the said injury by Dr. Gautambir PW8 as lacerated wound. On the other hand, if the full description of the said injury is read, then even Dr. Gautambir has categorically mentioned that the wound had clean cut margins. He also mentioned in the MLR that sharp-edged weapon was probably used for the said injury. However, despite the wound having clean cut margins, it was mentioned to be lacerated wound and it is only a mis- description of the said injury. On the other hand, it was clearly an incised wound and Dr. Gautambir has specifically stated and has also given opinion Ex. PL/1 that the possibility of this injury being caused by sharp edge of the pharsa shown to him could not be ruled-out. He also specifically stated that this injury of Banwari was caused by sharp-weapon".
In appeal, it has been argued that the prosecution version does not explain the injuries received by Jagat Singh and Samajh Kaur. It is not as if the these two persons had not received any injuries. There was proof of their injuries in the first version tendered by Samajh Kaur which was the -Crl. Appeal No. 569 DB of 1998 9 basis of FIR 136. Samajh Kaur had also appeared as DW-1. Furthermore, in final report exhibit DA it had been specifically mentioned "X-ray report of injured has been obtained vide which fractures qua the injuries of Samajh Kaur and Jagat Singh have been described." Exhibit DB was the statement of Dr. Pawan Kumar who also described the injuries on both the persons. Both had received fractures on the finger of their hands. Sukh Lal had appeared as DW-3 in the cross-case State Versus Umed Singh and others and his statement is exhibit DC.
We are called upon to determine which of the versions is true-- prosecution or defence. We cannot borrow bits from the two versions to create a third version of our own. That would be contrary to the settled principle of criminal law. If the prosecution version is accepted, then the question will be as regards the nature of the offence committed by the accused, whether it fell within the definition of sudden fight or exceeding private defence or grave and sudden provocation. If the defence version is true then did the accused act in exercise of right to private defence, would be the question.
In the present case, the first version to be recorded by the police was one given by Samajh Kaur and on its basis the case was registered. The version given by Sukh Lal came later but no separate case was registered because FIR had already come into existence.
The medical evidence is also indicative of what actually transpired and helps the court to determine which of the version is true. Evidence of the Medical Officer is a type of direct evidence of the exact nature of the wound and the manner in which it was caused, if the injured person has fire arm injuries, then the description of those injuries tell us -Crl. Appeal No. 569 DB of 1998 10 whether the fire arm which was used was a shotgun, a rifle or a pistol. If the injuries are sharp-edged injuries, the medical evidence tells us that the injuries could have been caused either by a kirpan, a knife or any other sharp-cutting weapon like gandasa. If the medical officer describes the injuries as lacerated wound, then sharp-edged weapon can be ruled out. Often these injuries are caused by the blunt side of a sharp-edged weapon or even by a lathi if there is hard bone under the skin (as in the case of human scalp).
The appellants' version is the first version. It would be a mistake to think that the appellants' version is what was disclosed by Jagat Singh in his statement under Section 313 Cr.P.C. As a matter of fact, the appellants' version is what was given by Samajh Kaur as early as at 1.30 AM on July 14, 1997. It is true that Samajh Kaur does not give any explanation for the injuries inflicted on Sukh Lal and Banwari Lal. Samajh Kaur's version certainly tells us that the fight was begun by Sukh Lal's son Umed Singh, Sukh Lal's other son Ajit and Banwari Lal (deceased) had also reached the spot armed with lathies and inflicted injuries on Samajh Kaur and Jagat Singh before they were rescued. From this stage, the statement of Jagat Singh can be taken up. He specifically stated that his brother Ajmer had given a lathi blow on Banwari Lal's head. It was this lathi blow which had caused the lacerated wound which pushed Banwari Lal into a coma and ultimately to death after a week.
We are of the considered opinion that the defence version is the real version of the occurrence. Ajmer Singh-appellant 2 had acted in his self defence after his mother Samajh Kaur and brother Jagat Singh had been attacked by Umed Singh, Parkash, Ajit and Banwari Lal deceased. Law -Crl. Appeal No. 569 DB of 1998 11 does not require a person to stand by when his mother and brother are being attacked with pharsas and lathies. Law permits a person to exercise his right of self defence of his own person or defence of a person dear to him. Ajmer Singh had only inflicted a solitary lathi injury on the head of Banwari Lal. It was a heavy blow indeed which caused a lacerated wound on the head as there was hard bone underlying the skin. The blow was sufficient to cause death in ordinary course of nature but Ajmer Singh was justified in causing lathi blow as he apprehended injuries to his mother and brother in the hands of the members of the complainant party.
This appeal deserves to be accepted. Both the appellants are acquitted of the charge.
(K.S. GAREWAL)
JUDGE
19.9.2008 (JITENDRA CHAUHAN)
prem JUDGE
Whether refer to Reporter Yes