Punjab-Haryana High Court
Sewa Singh And Others vs State Of Haryana on 13 November, 2019
Equivalent citations: AIRONLINE 2019 P AND H 1325
Author: Harinder Singh Sidhu
Bench: Harinder Singh Sidhu
CRA-D-184 of 2019 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(1) CRA-D-184 of 2019
Sewa Singh and others
.... Appellants
Versus
State of Haryana
..... Respondent
(2) CRA-D-185 of 2019
Sachin
.... Appellant
Versus
State of Haryana
..... Respondent
Reserved on : 30.10.2019
Date of decision : 13.11.2019
CORAM :- HON'BLE MR. JUSTICE RAJIV SHARMA
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: Mr. Vinod Ghai, Senior Advocate, with
Ms. Kanika Ahuja, Advocate,
for the appellants in CRA-D-184 of 2019.
Dr. Anmol Rattan Sidhu, Senior Advocate, with
Mr. Nitin Meel, Advocate,
for the appellant in CRA-D-185 of 2019.
Ms. Shubhra Singh, Addl. A.G., Haryana.
***
RAJIV SHARMA, J.
1. Since common questions of law and facts are involved in both For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 1 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -2- these appeals, i.e. CRA-D-184 of 2019 and CRA-D-185 of 2019, therefore, these are taken up together and being disposed of by a common judgment.
2. These appeals are instituted against the judgment and order dated 30.01.2019, rendered by learned Additional Sessions Judge, Hisar, in Sessions Case No. 60 of 2015/2018 dated 04.09.2015/03.10.2018, whereby appellants Sewa Singh, Balram, Hawa Singh, Kulbir, Naresh and Sachin were charged with and tried for the offences punishable under Sections 148, 452, 302, 323, 506 read with Section 149 IPC. They were convicted and sentenced to undergo imprisonment for life and to pay a fine of ` 50,000/- each, and in default of payment of fine, to undergo simple imprisonment for 2 ½ years each under Section 302/149 IPC. They were convicted and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of ` 1,000/- each, and in default of payment of fine, to undergo simple imprisonment for one month each under Section 452/149 IPC. They were convicted and sentenced to undergo rigorous imprisonment for one year each and to pay a fine of ` 500/- each, and in default of payment of fine, to undergo simple imprisonment for 15 days each under Section 506/149 IPC. They were convicted and sentenced to undergo rigorous imprisonment for six months each under Section 323/149 IPC. They were also convicted and sentenced to undergo rigorous imprisonment for one year each under Section 148 IPC.
3. The case of the prosecution, in a nutshell, is that on 07/08.05.2015, a telephonic message was received in the Control Room informing that Hari Bilas and Puran Singh were admitted in General Hospital, after receiving injuries in a fight. ASI Dharambir Singh went to For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 2 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -3- the hospital. Puran Singh was declared fit to make statement. His statement was recorded. He disclosed that on 06.05.2015, he and his brother Hari Bilas had a tiff with Sewa Singh. Sewa Singh was armed with gandasa. Hawa Singh and Balram armed with Jellies came to their house. During this time, Kulbir, Naresh and Sachin also reached with their lathis threatening them. Sewa Singh gave a gandasa blow on the head of Hari Bilas, his cousin. Kulbir gave a lathi blow. When he tried to intervene, Kulbir and Naresh also attacked him with lathi and caused injuries on various parts of his body. They were rescued by Sukhdev and Deshu, their neighbours. Thereafter, he and his brother were admitted in General Hospital, Hisar. Since Hari Bilas received serious injuries, he was shifted to Sapra Hospital. They had also caused injuries in self defence to Sewa Singh and Hawa Singh. FIR was registered. Investigation was carried out. Hari Bilas died in PGIMS, Rohtak. Thereafter, offence under Section 302 IPC was inserted. Inquest report was prepared. Accused Naresh and Sachin were found innocent. They were kept in column No.2 of the challan. However, they were later on summoned to face trial along with remaining accused on the basis of an application under Section 319 Cr.P.C. The recovery of the weapons of offence was effected. The investigation was completed and challan was put up after completing all the codal formalities.
4. The prosecution examined as many as eighteen witnesses in support of its case. The appellants were also examined under Section 313 Cr.P.C. They denied the case of the prosecution and pleaded false implication. They also examined eleven witnesses in their defence.
5. The appellants were convicted and sentenced, as noticed here- For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 3 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -4- in-above. Hence, these appeals.
6. Learned counsel appearing on behalf of the appellants have vehemently argued that the prosecution has failed to prove its case against their clients. Learned counsel appearing on behalf of the State has supported the judgment and order of the learned Court below.
7. We have heard learned counsel for the parties and gone through the judgment and record very carefully.
8. PW.1 Dr. Satish Kumar led his evidence by filing affidavit Ex.PW.1/A. He proved copy of MLR of Hari Bilas vide Ex.P1. He also proved copy of MLR of Puran Singh vide Ex.P2. According to him, on 10.05.2015, the Investigating Officer moved an application Ex.P4 before him seeking opinion regarding nature of injuries. He opined on the same that as per MLR, X-ray report of SMS hospital, compound fracture of skull bone was seen. Injury No.1 was dangerous to life in normal course of nature. On 22.06.2015, the Investigating Officer moved an application Ex.P6 seeking opinion regarding nature of injuries caused by the weapon and produced three parcels separately containing gandasa, jelley and lathi. He opened all the three sealed parcels. On seeing the weapons, he opined that the injuries could be caused by the weapons produced and death could be caused by injuries caused with these type of weapons. He proved his report Ex.P7. In his cross-examination by the learned counsel appearing on behalf of accused Sachin, he deposed that the injured did not disclose the name of assailants to him. He admitted that there was no lacerated wound on the person of injured Hari Bilas. He also admitted that injured Hari Bilas left the hospital against the medical advise. In his cross-examination by the For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 4 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -5- learned counsel appearing on behalf of accused Sewa Singh, he deposed that the blade of weapon (Farsa Ex.P8) was not so sharp and if the blow was given with that weapon, the incised wound would be accompanied by lacerations due to its blade. There was no laceration in case of Hari Bilas in injury No.1. He further admitted that the shape of wound would be concave, if caused by weapon Ex.P8. The shape of injury No.1 on the person of Hari Bilas was not concave. Injury No.1 was possible by a weapon having a straight blade. The possibility of injury No.1 with the weapon Ex.P8 was lesser. The possibility of injury No.2 on the body of Hari Bilas and injuries No.2 and 3 on the body of Puran Singh being old could not be ruled out. The patients and their attendants had given only history of assault. They did not disclose the names of the assailants and the manner in which the assault was made. The weapons which were shown to him for seeking opinion were not re-sealed by him after examination.
9. PW.2 Dr. Tarun Sapra deposed that Hari Bilas was admitted in his hospital on 07.05.2015 with alleged history of assault. The patient had suffered severe head injury and was referred to higher centre on 08.05.2015. He proved admission record (8 pages) of patient Hari Bilas, vide Ex.P11.
10. PW.11 Dr. Vinod Kumar deposed that on 11.05.2015, he along with Dr. Jai Parkash conducted post mortem examination on the body of Hari Bilas. The post mortem report is Ex.PW.11/A. In his opinion, the cause of death was due to crania cerebral injury, as described vide injury No.1, and its complication. This injury was caused by heavy sharp weapon. The injuries were ante mortem in nature. In his cross-examination, he admitted that as per chemical examination report qua viscera, it was found that the For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 5 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -6- deceased consumed liquor i.e. ethyl alcohol. In the MLR Ex.P1, clear margins of injury were not mentioned regarding injury No.1.
11. PW.3 Raju prepared the scaled site plan Ex.P13.
12. PW.7 Puran Singh testified that they were four brothers. He and deceased Hari Bilas used to reside in a common house. On 07.05.2015 at about 6.00/7.00 PM, he along with his brother Hari Bilas, wife of Hari Bilas namely Guddi, his nephew Jagdeep son of Hari Bilas, were present in their house. All the six accused, namely Hawa Singh, Sewa Singh, Balram, Kulbir, Naresh and Sachin, came to his house. They all came and surrounded the entry gate of his house. Sewa Singh was armed with gandasa. Hawa Singh and Balram were armed with jellies, while Kulbir, Naresh and Sachin were having lathis. Out of these six persons, Sewa Singh and Kulbir came forward. Sewa Singh gave gandasa blow to Hari Bilas, while Kulbir gave lathi blow to Hari Bilas. He proceeded to save his brother. However, Hawa Singh and Naresh came forward. Sewa Singh and Hawa Singh dragged his brother. Kulbir and Naresh gave lathi blows on his body. On raising alarm by Guddi and Jagdeep, all the assailants fled away with their weapons. Thereafter, their neighbourers came on the spot. They were shifted to GH, Hisar, from where his brother Hari Bilas was referred to PGIMS, Rohtak. However, he was admitted in Sapra Hospital, Hisar, from where he was shifted to a hospital at Gurgaon. He was again shifted to PGIMS, Rohtak. His brother Hari Bilas died on 10.05.2015 due to injuries sustained by him in the occurrence. His treatment was conducted at GH, Hisar. Sonia daughter of Sewa Singh was murdered in honour killing by Sewa Singh and his family members as she had left the house without any For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 6 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -7- information along with a boy. She came back after two days. She was killed. Cremation was done during night hours. His brother Hari Bilas had given a complaint to the police in this regard. However, the police did not take any action. In March, 2015, the accused party had attempted to kill his brother Hari Bilas. On 06.05.2015, they took the water supply for irrigation of the fields after the turn of accused Sewa Singh. Sewa Singh told them that they had cut the naka some time prior to their turn, but they denied this fact. Then Sewa Singh threatened him and his brother Hari Bilas. Rakesh son of Sewa Singh hatched a conspiracy to kill his brother Hari Bilas. On 15.01.2016, he was also threatened by Rakesh, Sunil, Naresh, Jagrup and Ved to compromise the matter. In his cross-examination, he deposed that he had told the police that in March, 2015, Sewa Singh, Rakesh son of Sewa Singh, Jagrup son of Ved, Sachin son of Ved, Ved son of Khem Chand surrounded his brother Hari Bilas at Barwala with an attempt to kill him but he was saved by the neighbours and shopkeepers. However, the police did not record the same. He also told the police about the threats advanced to him on 03.05.2015, but the police did not record the same. He had also told the police that Rakesh had hatched a conspiracy to kill his brother Hari Bilas but the police did not record the same. He and his brothers were having 8 acres of land. Accused persons were from his ancestral family. Their land was joint with the accused. He denied the suggestion that on 06.05.2015, as per the settlement, Sewa Singh had to use the turn of water of his brother Krishan. He also denied the suggestion that his brother Hari Bilas had threatened Sewa Singh and his wife. They had not caused any injury to accused Sewa Singh and Hawa Singh. He also denied the For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 7 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -8- suggestion that they had caused two injuries from the reverse side of gandasa on the head of Sewa Singh. He also denied the suggestion that Hawa Singh accused sustained injury on left arm resulting into fracture of radius bone. He was not aware that Hawa Singh remained admitted in a hospital from 07.05.2015 to 29.05.2015 and Sewa Singh remained admitted from 07.05.2015 to 11.05.2015. He denied the suggestion that he armed with gandasa along with Hari Bilas, Krishan, Mandeep, Jagdeep armed with lathis came to the house of Sewa Singh. He denied the suggestion that they had opened the attack on accused persons at the house of Hawa Singh. He denied the suggestion that at the time of occurrence, Kulbir was present in the house of Mahabir son of Hira Singh.
13. PW.8 Guddi Devi is the widow of deceased Hari Bilas. She corroborated the statement of PW.7 Puran Singh with regard to the manner, in which the accused came to the spot and inflicted injuries on the persons of Hari Bilas and PW.7 Puran Singh. According to her also, Sewa Singh gave gandasa blow on the head of her husband Hari Bilas, while Kulbir gave lathi blow on the shoulder of Hari Bilas. She raised alarm. Her brother- in-law Puran Singh rushed to save her husband. Kulbir and Naresh gave lathi blows on the person of Puran Singh. Sewa Singh and Hawa Singh dragged her husband. Balram gave jelley blow to Hari Bilas. She raised alarm. Many neighbours came there. All the assailants ran away from the spot. In her cross-examination, she deposed that her statement was recorded at 2.30 PM on the next day of occurrence. She had told the police that Sewa Singh was armed with gandasa. Hawa Singh and Balram were armed with jellies, while Kulbir, Naresh and Sachin were having lathis at the time of For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 8 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -9- entering their house. She was confronted with her statement Ex.D5, wherein it was mentioned that the assailants were armed with gandasa and jellies, but there is no specific assignment of any particular weapon to any particular person. She had told the police that her husband Hari Bilas was dragged by Sewa Singh and Hawa Singh. She was confronted with her statement Ex.D5, wherein it was not so recorded. She told the police that Balram had given jelley blow to Hari Bilas. She was confronted with her statement Ex.D5, wherein it was not so recorded. She admitted that Naresh was residing at Hisar with his family and was serving at Hisar for the last 5- 6 months prior to the occurrence. She also admitted that Sachin was residing at Dhani Prem Nagar at the time of the alleged occurrence, for the last 30-40 years with his family members. Dhani Prem Nagar was at a distance of 15- 16 Kms. from village Chhan and Hisar was at a distance of 45-50 Kms. from their village. She had not embraced her husband when the accused were causing injuries to him. However, she tried to rescue him. Again said, she did not go to the spot where her husband was lying after receiving injuries. Even after the accused left the spot, she and Jagdeep had not touched Hari Bilas. She and her son had not accompanied the injured to hospital on the next day upto the death of Hari Bilas. They did not go to see him in the hospital. She did not visit Barwala and Hisar after the occurrence. None of the accused had sustained any injury nor they saw them in injured condition. She had not told the police that in the occurrence, Sewa Singh and Hawa Singh received injuries. She was confronted with portion B to B1 of her statement Ex.D5, wherein it is so recorded. She could not say why it was written by the police. She never made any statement to the police. For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 9 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -10-
14. PW.9 Ram Bilas deposed that on 11.05.2015, he visited PGIMS, Rohtak, on getting the information regarding the death of Hari Bilas. The post mortem examination of the dead body was got conducted. The dead body was handed over to them vide memo Ex.P17.
15. PW.12 ASI Dharambir Singh deposed that he moved an application Ex.P19 to the Medical Officer, GH, Hisar, for obtaining the opinion whether the patient was fit to make statement or not. The doctor declared patient Puran fit to make statement. He recorded the statement of Puran Singh vide Ex.P1. Thereafter, FIR was registered. He visited the spot. He prepared rough site plan Ex.P21. He also lifted the blood lying on the spot with the help of cotton. He visited Sapra Hospital, Hisar, on 10.05.2015. The doctor handed over to him cloth parcels sealed with the seal of doctor vide memo Ex.P26. Thereafter, he moved an application Ex.P4 for obtaining the opinion regarding nature of injuries. After obtaining the opinion of doctor vide Ex.P5, Section 307 IPC was added. On 11.05.2015, a telephonic message was received from PGIMS, Rohtak, about the death of Hari Bilas. Thereafter, Section 302 IPC was inserted. He collected the treatment record of Hari Bilas deceased. He prepared inquest report. Post mortem was got conducted. In his cross-examination, he admitted that in the statement of Puran, it was stated by him that Hawa Singh and Sewa Singh also received injuries in the occurrence. He also admitted that as per the statement of Puran, two persons namely Puran and Hari Bilas from the complainant side and Hawa Singh and Sewa Singh from the accused side received injuries. According to his observation, it was not a case of free fight. He tried to record the statements of Sewa Singh and Hawa For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 10 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -11- Singh but they expressed their inability. However, this fact was not mentioned in any memo prepared by him. He had tried to join the neighbours of the place of occurrence. However, no body joined the investigation. He did not summon the Sarpanch or any respectable person of village Chhan.
16. PW.13 HC Narender testified that he was posted as Investigating Officer in Police Station Barwala on 10.05.2015. He remained associated in this case with ASI Dharambir. On 11.05.2015, he visited PGIMS, Rohtak, along with ASI Dharambir. The post mortem was got conducted. Doctor handed over a sealed parcel of viscera along with sample seal and an envelope containing papers to the Investigating Officer. The same were taken into possession by Dharambir Singh vide memo Ex.P33. Accused Hawa Singh made a disclosure statement Ex.P34. Hawa Singh got recovered a lathi from his house situated in village Chhan, which was converted into a sealed parcel. Accused Kulbir also made disclosure statement Ex.P38. In pursuance of his statement, he got demarcated the place of occurrence.
17. PW.15 HC Falel Singh deposed that accused Balram and Sewa Singh made disclosure statements Ex.P40 and Ex.P41, respectively on 13.05.2015. They admitted their involvement in the commission of crime. They also made disclosure statements vide Ex.P42 and Ex.P43 on 14.05.2015. Sewa Singh got recovered gandasa and accused Balram got recovered jelley. In his cross-examination, he deposed that firstly, they went to the house of Sewa Singh. The house was lying open but no family member was present. The house of Sewa Singh was accessible to all. The For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 11 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -12- gandasa was brought by the accused from a fodder room. The house of Balram was situated in the other lane from the house of Sewa Singh. No family member was present in the house of Balram. The house was lying open. It was accessible to all. Balram had brought the jelley from a corner of room of his house.
18. PW.16 Constable Deepak testified that ASI Dharambir recovered one white blood stained `safa' and blood stained earth, which were converted into sealed parcels.
19. PW.18 P/SI Rajpal deposed that on 13.05.2015, during interrogation, accused Sewa Singh and Balram suffered disclosure statements Ex.P40 and Ex.P41, respectively. Accused Sewa Singh again made disclosure statement on 14.05.2015 vide Ex.P42. Sewa Singh got recovered one gandasa from his house. Accused Balram also made another disclosure statement Ex.P43. In pursuance of his statement, Balram got recovered one jelley. Hawa Singh was arrested on 29.05.2015. On 30.05.2015, he made disclosure statement Ex.P34. In pursuance of his statement, Hawa Singh got recovered one lathi from his house. He arrested accused Kulbir on 19.06.2015. Kulbir made disclosure statement on 20.06.2015 vide Ex.P38, on the basis of which he got demarcated he place of occurrence. He submitted an application Ex.P6 before the Medical Officer on 22.06.2015 and also produced weapons of offence for obtaining opinion. The doctor gave his opinion Ex.P7. In his cross-examination, he admitted that no recovery was effected in pursuance of the disclosure statement made by accused Kulbir. The family members of accused Hawa Singh were not present in the house at the time of his interrogation. The For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 12 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -13- house was lying open. No independent witness was joined at the time of interrogation of accused Hawa Singh. There were some injuries on the person of Sewa Singh at the time of his arrest. He did not prepare any injury report of accused Sewa Singh at the time of his arrest. House of Sewa Singh was situated in the thickly populated area. There were four-five rooms in the house of accused Sewa Singh. No family member of accused Balram was present in the house at the time of recovery. He admitted that Hawa Singh accused was having injuries on his person at the time of his arrest. He did not prepare any injury report at the time of his arrest. He did not collect any medical report of Sewa Singh and Hawa Singh from GH, Hisar. He did not investigate during investigation on the line of injuries of accused Sewa Singh and Hawa Singh. He did not collect any opinion of the doctors regarding the injuries on their persons.
20. DW.1 Baljeet Singh deposed that he knew Sachin. Sachin came to him on 06.05.2015 at about 4.30/5.00 PM. He remained with him till next day upto 8.00 PM. He gave affidavit Ex.DY/4 in the inquiry conducted by DSP. In his cross-examination, he deposed that Sachin was also an insurance agent. Sachin was senior to him. He was called by brother of Sachin, namely Jagroop, to give opinion. He did not give any record regarding the presence of Sachin with him on the date of affidavit Ex.DY/4.
21. DW.2 Amrik Singh testified that he knew Sachin. On 07.05.2015, a murder had taken place in village Chhan. Sachin was falsely implicated by the complainant party. Sachin was not present in village Chhan on that day. He was present at Jind with one Baljeet Saini. In his cross-examination, he deposed that Sachin disclosed him that on For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 13 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -14- 07.05.2015, he was present at Jind.
22. DW.3 Rajbir Singh produced copy of the bed head ticket of Hawa Singh Ex.DW.3/A, containing 12 pages. He also produced copy of the bed head ticket of Sewa Singh Ex.DW.3/B containing 7 pages. Hawa Singh remained admitted in Civil Hospital, Hisar, from 07.05.2015 to 29.05.2015. Sewa Singh remained admitted in Civil Hospital, Hisar, from 07.05.2015 to 11.05.2015
23. DW.4 Dr. Vimal Kumar Jain deposed that X-ray on the person of Hawa Singh was conducted in his supervision on 08.05.2015. He prepared report Ex.DW.4/A.
24. DW.5 Deepak deposed that he knew Naresh. Naresh was working with his company Deepak Sales Corporation Model Town, Hisar as supervisor. Naresh remained present in his company on 07.05.2015 from 5.00 PM to 8.30 PM. He was getting a salary of ` 9,500/- per month. In his cross-examination, he deposed that he had not given any attendance register to the police. He had not brought any attendance register. Volunteered, he did not maintain any attendance register. He had not submitted any CCTV record regarding presence of Naresh in his company to the police. He was not maintaining any salary register.
25. DW.6 Rajbir Singh testified that he was posted as DSP Barwala in the year 2015. PSI Rajpal Singh had found accused Naresh and Sachin innocent in the present case. He had verified the facts about their innocence. He found that at the time of occurrence, both the accused were not present on the spot. In his cross-examination, he deposed that he had not checked the CCTV footage, the salary register or the attendance register. For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 14 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -15-
26. DW.7 Suresh Kumar deposed that he was serving as Supervisor in Deepak Sales Corporation, 37-N, Model Town, Hisar. On 07.05.2015, Naresh was working as supervisor with him in their company. On 06.05.2015, he was present with him in their company. In his cross- examination, he admitted that he had not brought any record showing his presence and presence of accused Naresh on any date in the company. He had not brought any record regarding his appointment and appointment of Naresh with the company.
27. DW.8 Rajesh Kumar had proved customer application form along with I.D and address of proof of Naresh Kumar Ex.DW.8/A and the call details Ex. DW.8/B. In his cross-examination, he deposed that on 07.05.2015, there was no call from mobile sim No. 8816996803 from 11.35 AM to 09.58 PM. Without call, the location could not be ascertained.
28. DW.9 Deepak Kumar Sandhu brought the summoned record of mobile No. 92539 21259 for the period 05.05.2015 to 11.05.2015. He also brought the original customer application and proved copy of the same vide Ex.DW.9/A. Call details of the said number was proved vide Ex.DW.9/B. According to him, on 06.05.2015 at 12:02:36 hours to 07.05.2015 at 19:38:32 hours, location of the said mobile number was in the coverage area of District Jind. In his cross-examination, he admitted that any body can use a mobile number with permission of the subscriber. The location given by him in his examination-in-chief was of a mobile number and not of a person.
29. DW.10 Dr. Himanshu deposed that he was posted as Medical Officer in PHC Dhansu on 07.05.2015. He medico legally examined Sewa For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 15 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -16- Singh. The injured gave history of assault in village Chhan on 07.05.2015 at 6.00 PM. Injury No.1 was of size 4 cm x 0.5 cm over right parietal region, 3 cm away from the mid line on right side of scalp. Margins were regular. Fresh bleeding was present. X-ray was advised. Injury No.2 was a lacerated wound of size 5 cm x 0.5 cm over left occipital parietal region. Fresh bleeding was present. The probable duration of injuries was within 24 hours. He prepared MLR Ex.DW.10/A. He also medico legally examined Hawa Singh. On examination, swelling was present on left arm and left wrist. X-ray was advised. Duration of injury was not ascertained. He prepared MLR Ex.DW.10/B. In his cross-examination, he reiterated that duration of injuries of Sewa Singh could not be more than 24 hours.
30. DW.11 (wrongly written as DW.10) Kavita deposed that on 06.05.2015, their turn of water was in the morning. The turn of Ram Bilas was after them and then the turn of water was of Krishan. Krishan and his son Mandeep came to them for exchange of turn of water with them. They asked that next time, they would take their turn of water for irrigation of land. Her husband Sewa Singh told Krishan that Hari Bilas would create an issue regarding this. But Krishan and his son assured that they would manage the things. Hari Bilas came there and obstructed the turn of water. Hari Bilas armed with jelley came along with Krishan and raised a protest why they had taken the turn of water of Krishan. On 07.05.2015, her husband Sewa Singh went to their fields for repairing the water line. Mandeep son of Krishan, Satish, Jagdeep, Puran Krishan and Hari Bilas reached there. They were armed with lathis. They started abusing and intimidating them and warned them that they should mend their ways. They For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 16 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -17- gave beatings to Sewa Singh. They were going towards their house. On the way, when they reached near the house of Hari Bilas, which was adjacent to the house of Hawa Singh and Satpal, Puran armed with gandasa, Satish, Mandeep, Krishan, Jagdeep and Hari Bilas armed with lathis were there. Puran gave a reverse blow of gandasa which hit on the head of her husband Sewa Singh. Again Puran gave a blow of gandasa from sharp side towards her husband. Her husband ducked and the gandasa hit the head of Hari Bilas. Satish gave a lathi blow on the left hand of Hawa Singh. Her husband was shifted to hospital. Hari Bilas was also shifted inside his house.
31. According to the FSL report Ex.D6, an ethyl alcohol was detected in exhibits-1a, 1b and 1c. As per the FSL report Ex.PX, blood was detected on exhibit-1 (blood stained earth/swab) and exhibit-4 (gandasa). Exhibit-2 (Parna/Saffa) and exhibit-3 (Chadra) were stained with blood stains. Blood could not be detected on exhibit-5 (jelley) and exhibit-6 (lathi). According to the FSL report Ex.PX/1, Saffa and Chadra had human blood.
32. According to PW.7 Puran Singh, the appellants had come to their house. Sewa Singh had inflicted gandasa blow on the head of Hari Bilas. Appellant Kulbir gave lathi blow on the body of Hari Bilas. When he tried to intervene, he was also given beatings by Kulbir and Naresh with lathis. He was treated at General Hospital, Hisar. His statement was recorded vide Ex.P16 by the police. In his statement, he specifically stated that in their defence, they also caused injuries to Sewa Singh and Hawa Singh. Similarly, PW.8 Guddi Devi, in her statement Ex.D5, recorded on 08.05.2015, also stated that Sewa Singh and Hawa Singh also sustained For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 17 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -18- injuries in the scuffle. However, when Puran Singh and Guddi Devi appeared as PW.7 and PW.8, respectively, they denied that Sewa Singh and Hawa Singh sustained injuries. PW.12 ASI Dharambir Singh has also admitted that in the statement of Puran Singh, it was stated by him that Hawa Singh and Sewa Singh also received injuries. He also admitted that as per statement of Puran Singh, two persons namely Puran and Hari Bilas from the complainant side and Hawa Singh and Sewa Singh from the accused side received injuries. It was also revealed from the statements of witnesses that both the parties had fought in which they received injuries. PW.18 P/SI Rajpal, in his cross-examination, admitted that when Hawa Singh and Sewa Singh were arrested, they had sustained injuries. Sewa Singh had injury on his head and Hawa Singh was having injury on his hand. They were medico legally examined by DW.10 Dr. Himanshu. Dr. Himanshu noticed following injuries on the person of Sewa Singh :-
(1) Injury No.1 of size 4 cm x 0.5 cm over right parietal region, 3 cm away from the mid line on right side of scalp. Margins regular. Fresh bleeding was present oblique in direction. X-ray was advised. Nature of injury was kept under observation.
(2) Lacerated wound of size 5 cm x 0.5 cm over left occipital parietal region. Fresh bleeding was present.
He had advised X-ray. He also medico legally examined Hawa Singh and found following injury on his body :-
(1) Complained of pain in left arm and wrist joint. On examination, swelling was present on left arm and left wrist.
He proved MLRs Ex.DW.10/A and Ex.DW.10/B. In the case of Sewa For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 18 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -19- Singh, the probable duration of injuries was within 24 hours, but in the case of Hawa Singh, the probable duration could not be given by the doctor.
33. DW.3 Rajbir Singh proved bed head tickets of Hawa Singh and Sewa Singh vide Ex.DW.3/A and Ex.DW.3/B, respectively. According to him, Hawa Singh remained admitted in Civil Hospital, Hisar, from 07.05.2015 to 29.05.2015 and Sewa Singh remained admitted from 07.05.2015 to 11.05.2015.
34. DW.4 Dr. Vimal Kumar Jain got conducted X-ray on the person of Hawa Singh in his supervision. He proved bed head tickets of Hawa Singh and Sewa Singh vide Ex.DW.3/A and Ex.DW.3/B, respectively. He had noticed fracture of radius left side. Hawa Singh had received injury on his hand, which led to fracture, and Sewa Singh had received two injuries in his head. Injury No.1 was on right parietal region and the second injury was on left occipital parietal region. It is, thus, evident that a free-fight had taken place between the parties leading to injuries to both the parties. The injury received by Hari Bilas proved fatal, which led to his death. PW.7 Puran Singh also received injuries in the incident.
35. PW.1 Dr. Satish Kumar opined that as per MLR, X-ray report, there was compound fracture of skull bone of Hari Bilas with gandasa. He had noticed incised wound of size 11.3 x 0.4 cm bone deep present on scalp obliquely right supra temporal to left occipital area with fresh blood. Injury No.1 was caused by sharp edged weapon and injury No.2 was with blunt weapon. The probable duration of injures was within six hours. He also medico legally examined Puran Singh. He noticed a lacerated wound on right side forehead of size 5 x 0.3 cm muscle deep on right side forehead For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 19 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -20- with fresh bleeding. A bruise was present over left scapula. Another bruise was present over left forearm below elbow. Lacerated wound was present over ring finger and little finger of left hand. The injuries were caused with blunt weapon. The probable duration of injuries was within six hours. However, in cross-examination, he admitted that the injured did not disclose the name of assailants to him. He also admitted that blade of weapon (Farsa Ex.P8) was not so sharp and if the blow was given with this weapon, the incised wound were to be accompanied by lacerations due to its blade. There was no laceration in the case of Hari Bilas of injury No.1. PW.2 Dr. Tarun Sapra deposed that Hari Bilas was admitted on 07.05.2015, but was referred to higher center on 08.05.2015. PW.11 Dr. Vinod Kumar proved the post mortem report Ex.PW.11/A. In his opinion, the cause of death was due to crania cerebral injury, as described vide injury No.1 in the post mortem report and its complication which was caused by heavy sharp weapon. The injuries were ante mortem in nature. The weapons of offence were got recovered on the basis of disclosure statements made by the appellants.
36. Naresh and Sachin have taken the plea of alibi. However, they could not prove the same. DW.1 Baljeet Singh deposed that Sachin came to him on 06.05.2015 at about 4.30/5.00 PM. However, in cross-examination, he admitted that Sachin was an insurance agent and was senior to him. He also admitted that Sachin came to him by his car, but he did not know its registration number. Sachin had come to him to help him in examination of adviser. However, he had not brought any record pertaining to examination. Similarly, DW.2 Amrik Singh deposed that Sachin was not in village Chhan For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 20 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -21- on the day of occurrence. He was present with Baljeet Saini. In his cross- examination, he deposed that village of Sachin was Chhan. Volunteered, now he was living at Dhami Prem Nagar, Barwala. Appellant Naresh has examined DW.5 Deepak to prove the plea of alibi. According to him, Naresh was working in his company. He was working in his company on 07.05.2015 from 5.00 PM to 8.30 PM. However, in his cross-examination, he admitted that he had not brought any attendance register. He had not submitted any CCTV record regarding presence of Naresh in his company to the police. He had also not maintained any salary register. DW.6 Rajbir Singh deposed that he had verified the facts about the innocence of Naresh and Sachin. However, in his cross-examination, he deposed that he had not checked the CCTV footage, salary register or attendance register. The I.D proof of mobile numbers of Sachin and Naresh were not on judicial file. DW.7 Suresh Kumar deposed that Naresh was with him on the day of incident. He left the office at about 8.15 PM. In his cross-examination, he also deposed that he had not brought any record showing his presence and presence of appellant Naresh on any date in the company. He had also not brought any regard regarding his appointment and the appointment of Naresh with the company. The statements of DW.1 Baljeet Singh, DW.2 Amrik Singh, DW.5 Deepak and DW.7 Suresh Kumar do not inspire confidence. The appellants have also relied upon the statements of DW.8 Rajesh Kumar as well as DW.9 Deepak Kumar Sandhu to prove the plea of alibi. However, these also do not inspire confidence. DW.8 Rajesh Kumar in his cross-examination deposed that without call, location could not be ascertained. There was no call from Mobile sim No. 8816996803 from For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 21 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -22- 11.35 AM to 09.58 PM on 07.05.2015. DW.9 Deepak Kumar Sandhu in his cross-examination admitted that any body can use a mobile number with permission of the subscriber. The location given by him in his examination- in-chief was of mobile number and not of a person. It is settled law that if plea of alibi is taken but not proved, it pre-supposes that the accused were present on the spot.
37. DW.11 (wrongly written as DW.10) Kavita is the widow of appellant Sewa Singh. She has given the genesis and the manner in which the incident had taken place. According to her, the complainant party was the aggressor and in the incident, her husband Sewa Singh and appellant Hawa Singh received injuries. The blood was found on the weapons of offence. Blood was also found on Parna/Saffa and Chadra recovered from the place of occurrence. Ethyl alcohol was found in the viscera of deceased Hari Bilas. The fact of the matter is that the appellants armed with gandasa and lathis attacked Hari Bilas and Puran Singh. The injuries received by Hari Bilas proved fatal. Puran Singh had also sustained injuries. The statement of PW.7 Puran Singh is duly corroborated by PW.8 Guddi Devi. The genesis of the fight was turn of water to irrigate fields. According to the complainant party, they had diverted the water according to their turn. However, there was dispute about the timing, which led to fight between the parties. The prosecution has not explained the injuries received by Sewa Singh and Hawa Singh.
38. Learned counsel for the appellants has vehemently argued that this case would fall within the ambit of Section 304 Part II IPC. However, we are of the considered view that this case would fall within the ambit of For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU 22 of 23 ::: Downloaded on - 13-01-2020 02:08:53 ::: CRA-D-184 of 2019 -23- Section 304 Part I IPC, since the appellants attacked the complainant party with gandasa, jellies and lathis and administered beatings to Hari Bilas and Puran Singh.
39. Accordingly, both the appeals are partly allowed. Conviction of the appellants recorded by the trial court under Section 302/149 IPC is converted to Section 304 Part-I/149 IPC. However, their conviction and sentence under Sections 452/149, 506/149, 323/149 and 148 IPC are upheld. All the appellants are in custody. The State of Haryana is directed to produce them before this Court on 27.112019, to be heard on quantum of sentence under Section 304 Part-I/149 IPC.
( RAJIV SHARMA )
JUDGE
November 13, 2019 ( HARINDER SINGH SIDHU )
ndj JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
For Subsequent orders see IOIN-CRA-D-184-2019 Decided by HON'BLE MR JUSTICE RAJIV SHARMA;
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