Punjab-Haryana High Court
Rumal Son Of Likhi And Others vs State Of Haryana on 21 July, 2008
Author: S.S. Saron
Bench: S.S. Saron, K.C. Puri
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.316-DB of 1998
.....
Date of decision:21.7.2008
Rumal son of Likhi and others
...Appellants
v.
State of Haryana
...Respondent
Coram: Hon'ble Mr. Justice S.S. Saron
Hon'ble Mr. Justice K.C. Puri
Present: Mr. R.S. Cheema, Senior Advocate with Mr. Jasdev Singh
Mehndiratta, Advocate for the appellants.
Mr. H.S. Sran, Additional Advocate General, Haryana for
the respondent-State.
Mrs. Baljit Mann, Advocate for the complainant.
......
(2) Criminal Revision No.809 of 1998
.....
Sanjay
...Petitioner
v.
Rumal son of Likhi and others
...Respondents
Present: Mrs. Baljit Mann, Advocate for the petitioner.
Mr. R.S. Cheema, Senior Advocate with Mr. Jasdev Singh
Mehndiratta, Advocate for the respondents.
......
S.S. Saron, J.
This order will dispose of Criminal Appeal No.316-DB of 1998 Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [2] and Criminal Revision No.809 of 1998 as both arise out of the same judgment and order dated 11.6.1998 whereby the appellants have been convicted and the order dated 12.6.1998 whereby they have been sentenced to life imprisonment.
The appellants in the criminal appeal have prayed for setting aside the impugned judgment of conviction and order of sentence that has been passed against them by the learned trial Court. In the revision petition a prayer has been made by the complainant for enhancement of the sentence of life imprisonment to that of capital punishment. A further prayer is made for adequately enhancing the amount of fine and on its recovery it be paid to the complainant as compensation.
The FIR (Ex.PJ/2) has been registered in the case on the statement of the complainant Sanjay (PW-3). It is stated by him that he is a resident of Tigaon, Police Station Chhainsa. He had come to Village Pali four-five days ago to meet his maternal uncle and maternal grand-father. His maternal uncle Bhup Singh (deceased) owned a mine in the Pali hillock. Rumal (appellant No.1) also owned a mine adjacent to the mine of Bhup Singh (deceased). The maternal uncle of the complainant, namely, Bhup Singh (deceased) used to visit the mine daily in the morning for the purpose of quarrying stones. On the day of the occurrence i.e. 14.4.1997 as usual at about 7.00 a.m. the maternal uncle-Bhup Singh of the complainant had gone to his mine. The complainant along with his other maternal uncle-Hukam Singh (PW-4) at about 9.00 a.m. had also gone there. When they reached, Rumal, Ram Dhan son of Rumal, Rewati, his son Bijji, Kishan Pal, Ram Rattan and Shyambir (appellants) armed with iron rods and lathis were Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [3] beating Bhup Singh, the maternal uncle of the complainant. When the complainant and his other maternal uncle Hukam Singh (PW-4) reached the mine, then Bijji (Vijay Pal-appellant) gave a blow with the rod that he was carrying on the head of Bhup Singh. Ram Dhan and Ram Rattan (appellants) gave lathi blows on his hands. The accused seeing the complainant and Hukam Singh (PW-4) coming raised a `Lalkara' to kill him (complainant) and not to spare him. When the complainant rushed to rescue his uncle Bhup Singh, Rewati, Kishan Pal and Shyambir (appellants) gave lathi blows on the waist and feet of Bhup Singh. When the complainant intervened, then Bijji (Vijay Pal-appellant) gave a blow with the iron rod on the left side of his (complainant's) head. Ram Rattan gave a lathi blow on the left hand of the complainant and Kishan Pal gave a lathi blow on his right knee. Hukam Singh (PW-4), the maternal uncle of the complainant raised an alarm for help. On the alarm raised by them, the accused ran away. A day earlier to the occurrence Bhup Singh, the maternal uncle of the complainant had asked Rumal, Bijji (Vijay Pal-appellant) etc. not to operate the mining operations in the area towards his mine. Due to this grudge the accused in collusion with one another caused injuries to Bhup Singh. When they were to take Bhup Singh to B.K. Hospital for treatment he died at the spot. On the statement of Sanjay (PW-3)-complainant the criminal proceedings were initiated.
Sat Narain, SI/SHO (PW-7) recorded that on receipt of telephonic message from B.K. Hospital, Faridabad, he along with other Police officials reached there in a Government van. After obtaining opinion of the doctor, the statement of Sanjay-complainant (PW-3) was recorded Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [4] which was read over to him who after admitting the same to be correct signed it in English. In terms of the said statement, offences under Sections 148, 149, 323 and 302 Indian Penal Code (`IPC' - for short) were found to be made out. The writing was sent through Constable Sube Singh No.510 to Police Station for registration of a case. After registration the case number, it was submitted, be informed. The SI/SHO proceeded to B.K. Hospital for conducting the investigation. Special reports it was recorded be sent to the concerned officers.
The Police investigated the case and filed the charge-report (challan) in the Court of learned Judicial Magistrate Ist Class, Faridabad on 16.7.1997. The learned Magistrate keeping in view the fact that an offence under Section 302 IPC had also been alleged, vide order 22.7.1997 committed the case for trial to the Court of learned Sessions Judge, Faridabad. The case on commitment was listed for consideration of charge on 5.8.1997. On the said date, the learned Sessions Judge, Faridabad passed an order to the effect that the accused Sombir (sic. Shyambir), Ram Dhan and Rewati had not been challaned and had been mentioned in column No.2 of the report submitted by the Police under Section 173 of the Code of Criminal Procedure (`Cr.P.C.' - for short) although their names figured in the FIR. It was, therefore, ordered to issue notices to them also through bailable warrants in the sum of Rs.2,000/- each to know whether a prima facie case of murder was also made out against them or not. The learned Sessions Judge, Faridabad thereafter vide order dated 3.12.1997 found that a prima facie case for the offence under Section 302 IPC was made out against accused Vijay Pal and under Sections 148, 302, 325 and 149 IPC Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [5] against all the accused. They were charged accordingly. The prosecution in order to prove its case examined Dr. C. Paul (PW-1), who conducted post- mortem examination of Bhup Singh (deceased), Dr. Prem Kumar Maghu, B.K. Hospital, Faridabad (PW-2), who examined the complainant Sanjay (PW-3). Sanjay-complainant was examined as PW-3. Hukam Singh, the maternal uncle of the complainant was examined as PW-4. Neeraj Kumar Patwari who had prepared the site plan Ex.PO according to Aks Shizra was examined as PW-5. Ram Avtar, ASI (PW-6) was examined being a member of the Police party headed by SI Sat Narain (PW-7). Sat Narain, SI/SHO (PW-7) was also examined. Besides, the examination of the witnesses, documents were also tendered in evidence. The statements of the accused were recorded in terms of Section 313 Cr.P.C. in which the substance of the evidence appearing against them were put to them. The accused stated that they were innocent and had been falsely implicated.
The learned trial Court after considering the evidence and material on record held that the accused Rumal, Kishan Pal, Vijay Pal, Ram Dhan, Shyambir, Rewati and Ram Rattan on 14.4.1997 at 9.00 a.m. in the area of Village Pali were members of an unlawful assembly and were armed with various deadly weapons like iron rods etc. They in furtherance of their common intention of their unlawful assembly committed the murder of Bhup Singh and also caused simple injuries to Sanjay-complainant. It was held that Vijay Pal accused was also charged for the offence under Section 302 IPC but there was no medical evidence on the file to show that Bhup Singh had died only due to the head injuries. It had been alleged that Vijay Pal accused had caused head injury to Bhup Singh with an iron rod.
Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [6] According to Dr. C. Paul (PW-1) the injuries to the brain and lungs were, it was observed, the main injuries which led to the death of Bhup Singh. Therefore, it was observed that Vijay Pal has to be held to be guilty with the aid of Section 149 IPC and not under Section 302 IPC alone. Accordingly, the accused (appellants) were held guilty and convicted for the offences under Sections 148, 302 and 149 IPC and also Sections 323 and 149 IPC. The accused were sentenced to undergo one year rigorous imprisonment for the offence under Section 148 IPC and to life imprisonment and fine of Rs.1,000/- each for the offences under Sections 302 and 149 IPC. In default of payment of fine the defaulters were to further undergo one year rigorous imprisonment. The accused were sentenced to undergo six months rigorous imprisonment for the offences under Sections 323 and 149 IPC. However, all the sentences were ordered to run concurrently.
Shri R.S. Cheema, learned Senior Advocate appearing with Shri Jasdev Singh Mehndiratta, Advocate for the appellants has contended that there is considerable delay in the lodging the FIR, inasmuch as, the occurrence, it has been alleged, was at 9.00 a.m. on 14.4.1997; whereas the statement (Ex.PJ) of Sanjay-complainant (PW-3) was recorded at 3.30 p.m. Thereafter, the FIR was recorded at 3.50 p.m. The special report reached the Illaqa Magistrate at 1.00 p.m. on 15.4.1997 i.e. on the next day. This according to the learned senior counsel gave sufficient time to the prosecution to deliberate and exaggerate the case by falsely implicating some of the accused. It is further contended that the delay in the case is not innocuous as the first version of Hukam Singh (PW-4) was recorded at 10.00/10.30 a.m. on 14.4.1997 and this is so mentioned in his deposition Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [7] while appearing as PW-4. The same, it is contended, has wrongly been discarded. It is further contended that in any case keeping in view the nature of injuries that had been caused, the offence would not be one which can be said to be made out under Section 302 IPC. This is moreso for the reason that no intention of guilt can be attributed to the accused. It is submitted that the injuries are such which would at the most make out an offence of a lesser degree than that under Section 302 IPC. It is contended that with a view to rope in more persons from the side of the accused the FIR was left open by mentioning that a day earlier to the occurrence it has been alleged that Bhup Singh had allegedly asked Rumal, Bijji etc. not to operate towards his mine. The use of `etc.' is for the purpose of naming as many persons as possible as accused. It is further contended that Shyambir, Ram Dhan and Rewati (appellants) were not challaned by the prosecution and were kept in column No.2 of the charge-report (challan) filed by the Police. In any case, out of the said three persons who were kept in column No.2 of the challan, two of them, namely, Shyambir and Ram Dhan were juveniles at the time of the occurrence. Even though question regarding their being juveniles was not raised before the trial Court, it is submitted that the same can be raised before this Court in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (`Act' - for short). A reference has been made to Section 7-A of the Act as regards procedure to be followed when claim of juvenility is raised before any Court.
In response, Mr. H.S. Sran, Additional Advocate General, Haryana, learned counsel appearing for the State and Mrs. Baljit Man, Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [8] Advocate, learned counsel appearing for the complainant have contended that the prosecution has proved its case in all material aspects and, therefore, no interference is called for in the appeal, which is liable to be dismissed. It is submitted that the question of delay in lodging the FIR is inconsequential in the facts and circumstances of the case; besides, no suggestion has been put to the Investigating Officer Sat Narain (PW-7) with regard to the alleged delay in lodging the FIR. It is also contended that Sanjay (PW-3) who is the complainant in the case is a stamped witness who received injuries in the occurrence and he has given an account of the circumstances as have occurred. Therefore, there is no ground to disbelieve his sworn testimony. Mrs. Baljit Mann, Advocate, learned counsel appearing for the complainant has further contended that the sentence of life imprisonment as imposed on the appellants in the appeal in the facts and circumstances of the case is inadequate and is liable to be enhanced to that of capital punishment and in any case the complainant is liable to be awarded compensation by enhancing the payment of fine and ordering payment of the same to the complainant.
We have given our thoughtful consideration to the contentions of the learned counsel appearing for the respective parties and with their assistance also perused the record. It may be noticed that Sanjay (PW-3) on whose statement the FIR was registered has reiterated the version as given by him in his statement (Ex.PJ) on the basis of which FIR (Ex.PJ/2) was registered. It is stated that when he along with his maternal uncle Hukam Singh (PW-4) on 14.4.1997 at 9.00 a.m. had gone to the mine of his uncle, they saw Rumal, Ram Dhan, Rewati, Bijji, Kishan Pal, Ram Rattan and Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [9] Shyambir were beating Bhup Singh, the maternal uncle of the complainant. They were armed with iron rods and lathis. Bijji (Vijay Pal-appellant) was armed with an iron rod which he hit on the head of Bhup Singh. Ram Rattan and Ram Dhan were armed with lathis and they gave lathi blows on the hands of Bhup Singh. Rumal exhorted his companions to kill him. Rewati, Kishan Pal and Shyambir were armed with lathis and gave lathi blows to Bhup Singh on his back and feet. When he tried to rescue him, then Bijji, who was armed with a rod, gave a blow on the left side of the head of the complainant Sanjay (PW-3). Ram Rattan gave a lathi blow on the wrist of his left hand and Kishan Pal gave a lathi blow on his right knee. When Hukam Singh (PW-4), the other maternal uncle of Sanjay (PW-3) raised an alarm then all the accused ran away. A day earlier to the occurrence Bhup Singh, the maternal uncle of the complainant, had told Rumal and Bijji not to extend their operational area of mining towards his mine. It is on account of the said reason that injuries were caused to Bhup Singh. Sanjay and Hukam Singh had tried to take Bhup Singh to the hospital but he succumbed to his injuries at the spot. The complainant- Sanjay was got admitted at the hospital. The Police had come to the hospital and he made his statement (Ex.PJ) which he signed after admitting the same to be correct. Sanjay (PW-3) was cross-examined at considerable length. He denied the suggestion that Rumal was empty handed and it was stated that he (Rumal) was armed with a lathi. Although Rumal had not inflicted any injury with his lathi as he was behind the other accused. The complainant-Sanjay (PW-3) could not tell the number of injuries caused by Bijji (Vijay Pal-appellant) with the iron rod. However, when the accused Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [10] were inflicting injuries to Bhup Singh, then Rumal raised a `Lalkara'. After causing the injuries the accused ran away. The Police had come to the hospital after some time. When they reached there, his statement was recorded in the hospital. The statement of Hukam Singh, it is stated, was not recorded in his presence. He denied the suggestion that the accused did not inflict any injury to Bhup Singh as alleged and he received injuries by a fall in the mine or that he was not present at the spot. Hukam Singh (PW-
4), who is elder brother of Bhup Singh (deceased) supported the prosecution version in all respects. It is stated that Bhup Singh (deceased) was his younger brother and he owned a mine of stones in the Pali hillock. The mine of Rumal-appellant was situated adjoining the mine of Bhup Singh. His brother Bhup Singh used to visit his mine daily at 7.00 a.m. in order to extract stones by mining. On 14.4.1997 Bhup Singh had gone to his mine at about 7.00 a.m. At about 9.00 a.m. Hukam Singh (PW-4) along with Sanjay (PW-3) went to the mine of Bhup Singh. There the appellants were inflicting injuries to Bhup Singh. When he raised an alarm, then the accused ran away. He did not see as to who had caused injuries to Bhup Singh because he was at a distance. They also caused injuries to Sanjay. He had taken Bhup Singh and Sanjay to B.K. Hospital and the doctor treated the injuries of Sanjay. The Police had gone to the spot afterwards from the hospital. In his cross-examination, it is stated by Hukam Singh (PW-4) that he did not know who had informed the Police but the Police had reached the hospital when they reached there. It is stated that they reached the hospital at about 10.00/10.30 a.m. and at that time the Police was present there. It is stated that he cannot say whether his statement was Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [11] recorded first of all or not. It took about half an hour to complete the writing work in the hospital. They had reached the spot along with the Police at about 12.00 noon or 1.00 p.m. or 2.00 p.m. He denied the suggestion that no such occurrence had taken place or that there was no mine of Rumal situated adjoining the mine of Bhup Singh. Ram Avtar, ASI (PW-6) was a member of the party headed by SI Sat Narain (PW-7) on 14.4.1997. In his presence blood stained earth was lifted from the spot and made into a sealed parcel. On 19.4.1997 the investigation of the case was entrusted to him and he arrested Vijay Pal and Kishan Pal accused. On the basis of their disclosure statements Ex.PL/1 and Ex.PN/1 respectively, Vijay Pal got recovered one `Saria' (iron rod) on 20.4.1997, which was taken in possession by the Police. Kishan Pal accused also got recovered one lathi which was stained with blood. It was sealed in a parcel and taken in possession by the Police. Rough site plan (Ex.PL/2) was prepared in his hand and under his signatures. He also arrested Rewati and Shyambir accused. On 28.4.1997 he arrested Ram Rattan accused who made a disclosure statement (Ex.PN/1) and got recovered lathi stained with blood which was taken in possession vide recovery memo (Ex.PN). Rewati and Shyambir, it is stated, were found having committed the offence during his investigation and for this reason he had arrested them. Ram Avtar, ASI (PW-6) was cross-examined.
Sat Narain, SI (PW-7) stated that on 14.4.1997 on receipt of a telephonic message from B.K. Hospital he reached there and recorded the statement (Ex.PJ) of Sanjay on which he made his endorsement (Ex.PJ/1). The same was sent for registration of a case to the Police Station. On the Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [12] basis of the same FIR (Ex.PJ/2) was recorded by Ram Niwas, ASI, whose signatures he identified. He also prepared the inquest report (Ex.PB) and made an application (Ex.PB/1) to the Medical Officer for the post-mortem examination of the dead body of Bhup Singh. Thereafter, he reached the spot and prepared rough site plan (Ex.PS) with correct marginal notes under his hands and signatures. He lifted the blood stained earth from the spot on 14.4.1997 and sealed it in a sealed parcel with seal `RA' and took the same into possession vide memo (Ex.PK) attested by Hukam Singh and Ram Avtar, ASI. The seal after use was handed over to Hukam Singh. The statements of Hukam Singh and Ram Avtar were recorded. On 17.4.1997, he arrested Rumal accused and handed over the investigation of the case to ASI Ram Avtar (PW-6). After completion of investigation, he prepared the challan on 9.7.1997. He was cross-examined by the defence. In cross- examination, it is stated by Sat Narain, SI (PW-7) that he received the telephonic message from B.K. Hospital at about 3.00 p.m. He did not record the message in the daily diary. He had sent Ruqa (memo) to the Police Station after recording the statement of Sanjay (PW-3) and his endorsement at about 3.30 p.m. After seeing the site plan (Ex.PS) it was stated that he had not shown the point from where the blood stained earth was lifted. The suggestion that no blood stained earth was lifted from the spot on account of the ditch being very deep was denied. He denied the suggestion that no quarrel had taken place at Point-`A' as shown in Ex.PS or that he had falsely shown the spot of the incident as Point-`A'. He did not take any record in possession to ascertain documentarily the existence of mines of various persons. It is also stated by Sat Narain, SI (PW-7) that he Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [13] had found three persons, namely, Shyambir, Ram Dhan and Rewati (appellants) as innocent and they were discharged as per his directions. It is accepted that vide application Ex.DA he recommended the discharge of Shyambir, Ram Dhan and Rewati.
In the context of the material and evidence on record it is to be ascertained as to whether there has been delay in lodging the FIR and its effect in the case. Indeed, there has been considerable delay in lodging the FIR, inasmuch as, the occurrence that had occurred in the present case was at 9.00 a.m. on 14.4.1997 whereas the statement (Ex.PJ) of Sanjay- complainant (PW-3) was recorded at 3.30 p.m. The FIR (Ex.PJ/2) was recorded at 3.50 p.m. on 14.4.1997. It may be noticed that Hukam Singh (PW-4), who is the other maternal uncle of the complainant-Sanjay (PW-3), in his cross-examination has stated that they reached the hospital at about 10.00 a.m. or 10.30 a.m. and at that time the Police was present there. His statement was recorded in B.K. Hospital but he could not say whether his statement was recorded first of all or not. From this, it is contended by the learned senior counsel for the appellants that it can be inferred that in case the Police was present in the hospital at 10.00 or 10.30 a.m., he may have got recorded his statement. The statement (Ex.PJ) of Sanjay was recorded at 3.30 p.m. on the basis of which FIR (Ex.PJ/2) was recorded at 3.50 p.m. Besides, the special report reached the Illaqa Magistrate on the next day i.e. on 15.4.1997 at 1.00 p.m. The contention of the learned senior counsel for the appellants is that the said circumstances gave sufficient time to the prosecution to deliberate and exaggerate the case by implicating more accused. There is indeed a tendency on the part of the complainants, who Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [14] are the aggrieved to give exaggerated version and rope in as many as persons of the opposite side or exaggerate their role. However, it may be noticed that Dr. C. Paul (PW-1), who conducted post-mortem examination of the deceased Bhup Singh, had found the following injuries:-
"Injury No.1. L.W. (lacerated wound) 1½ inch x ½ inch over middle of forehead.
2. Bruise with fracture dislocation of right elbow. Irregular lacerated wound over the lower part of right arm. Clotted blood was present over the clothes and body.
3. Irregular laceration over lower part of left arm with clotted blood.
4. Seven bruises of size 1 inch x 5 inch to 7 inch over the back of right half of chest.
5. A L.W. (lacerated wound) 2 inch x 1 inch over right shin (leg).
6. Bruise 4 inch x 1 inch over right parietal area and L.W. (lacerated wound) 1 inch x 1/3rd inch with bone exposed over middle of forehead. On dissection fracture right parietal and frontal bone was found with a subdural haematoma."
A perusal of the above stated injuries shows that injury No.4 relates to seven bruises over the back of right half of chest. Besides, injury No.5 is a lacerated wound over right shin (leg). In the deposition of Sanjay- complainant (PW-3) as regards the injuries it has been alleged by him that Bijji (Vijay Pal-appellant), who was armed with an iron rod hit the head of Bhup Singh with the same. Ram Rattan and Ram Dhan (appellants), it is Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [15] stated, were armed with lathis and gave lathi blows on the hand of Bhup Singh. Rumal (appellant) was exhorting his companions to kill him. Rewati, Kishan Pal and Shyambir (appellants), it is alleged, gave lathi blows to Bhup Singh on his back and feet. As noticed seven bruises are there on the back of right half of chest and a lacerated wound on the right shin. It may also be noticed that Shyambir, Ram Dhan and Rewati (appellants) had been kept in column No.2 of the charge-report (challan) submitted under Sections 173 Cr.P.C. It is on the filing of the challan that bailable warrants were issued by the learned trial Court vide order dated 5.8.1997 to know whether a prima facie case of murder was also made out against them or not. The said order was passed without resort to provisions of Section 319 Cr.P.C. Though the violation of a procedural provision in the absence of prejudice does not confer any right on the appellants, however, it nevertheless is an irregularity though may not be such so as to completely vitiate the trial. Sat Narain, SI (PW-7) has stated that Narinder Singh, DSP also verified the investigation and he found Shyambir, Ram Dhan and Rewati (appellants) to be innocent and vide his application Ex.DA he recommended the discharge of the said accused. Besides, it may be noticed that no recovery of lathis had been effected from Shyambir, Ram Dhan and Rewati (appellants). It may also appropriately be noticed that in the affidavit (Ex.PH) of Constable Rajinder Singh No.188 it has been stated that on 2.7.1997, MHC Ramesh Chand, Police Station Sadar, Ballabgarh after taking two parcels i.e. one of lathi and the other of an iron rod sealed with seal `RA', one parcel of blood stained earth sealed with seal `RA' along with sample seal, one parcel of clothes sealed with seal `MO B.K. Hospital, Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [16] Faridabad' and one sample seal from `Malkhana' were handed over to him through RC No.337 for submitting the same to the Forensic Science Laboratory, Madhuban, Karnal which he deposited with the FSL, Madhuban on 3.7.1997 and handed over the receipt thereof to MHC Ramesh Chand. From the said affidavit, it may be noticed that there is only one parcel of lathi and the other of iron rod. The lathi, it has come in evidence, was recovered from Kishan Pal in pursuance of his disclosure statement (Ex.PM/1) vide recovery memo (Ex.PM) and a lathi was also recovered from Ram Rattan vide recovery memo (Ex.PN). The iron rod was recovered from Vijay Pal alias Bijji in pursuance of his disclosure statement (Ex.PL/1). Therefore, no lathis were recovered from Shyambir, Ram Dhan and Rewati (appellants). As such, the application (Ex.DA) for discharging the accused Rewati, Ram Dhan and Shyambir (appellants) having not participated in the quarrel is quite in order. Therefore, indeed the possibility of the three accused keeping in view the nature of injuries and the number of accused that have been involved cannot be said to be improper.
The non-involvement of the three accused Shyambir, Ram Dhan and Rewati (appellants), who were kept in column No.2, nevertheless does not cast any doubt as against the other accused. Bijji (Vijay Pal- appellant) was armed with an iron rod which he hit on the head of Bhup Singh. The injury on the head is corroborated by the medical evidence on record. Rumal (appellant) was exhorting his companions to kill Bhup Singh. Though, no injury is attributed to him, however, it has come in the deposition of Sanjay-complainant (PW-3) where he denied the suggestion that Rumal was empty handed but he was armed with a lathi. In any case, Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [17] no recovery of lathi has been shown from Rumal. As regards the recovery, it may be noticed that Vijay Pal alias Bijji-appellant had made a disclosure statement (Ex.PL/1) to the effect that on 14.4.1997 the iron rod with which he caused injuries on the head of deceased Bhup Singh in a quarrel had been concealed by him in a bush near the road at the crusher zone. He could get it recovered and none else except him knew about it. In pursuance of the said disclosure statement, the recovery of an iron rod was effected vide recovery memo (Ex.PL). One blood stained iron rod from bush near road crusher zone, Pali on the left side having length of 3 feet ½ inch was taken in possession. Apart from the recovery of the iron rod there is disclosure statement (Ex.PM/1) of Kishan Pal in which he stated that the lathi with which he caused injuries to Bhup Singh (deceased) in a quarrel on 14.4.1997 had been concealed by him under a `Hees' tree near drain Pali `Pahad'. He could get the same recovered by pointing out the place and none else except him knew about it. In pursuance of the recovery memo (Ex.PM) the lathi having seven `Pori' from a `Hees' tree near road crusher zone, Pali Mohbatabad, the lower portion of which was stained with blood, was recovered. Ram Rattan (appellant) made a disclosure statement (Ex.PN/1) to the effect that the lathi with which he caused injuries to Bhup Singh in a quarrel on 14.4.1997 was concealed by him on the shelf of his `Baithak' in Pali under the luggage. None else except him knew about it and he could get the same recovered by pointing out the place. In terms of the recovery memo (Ex.PN) Ram Rattan got the blood stained lathi having 8½ `Pori' recovered after removing the luggage which was taken into Police possession. Therefore, the iron rod having been recovered vide recovery Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [18] memo (Ex.PL) on the disclosure statement (Ex.PL/1) of Vijay Pal alias Bijji (appellant) and the lathis being recovered from Kishan Pal (appellant) vide recovery memo (Ex.PM) and from Ram Rattan (appellant) vide recovery memo (Ex.PN), besides, Rumal (appellant) exhorted the other accused, it is evident that they have participated in the occurrence which was witnessed by Sanjay-complainant (PW-3) nephew of Bhup Sing and Hukam Singh (PW-4)-the brother of the deceased Bhup Singh and maternal uncle of the complainant. It may also be noticed that Sanjay-complainant (PW-3) is a stamped witness. Dr. Prem Kumar Maghu, B.K. Hospital, Faridabad (PW-
2) deposed that he medico-legally examined Sanjay (PW-3). On his examination, he found three injuries. Injury No.1 was a lacerated wound 3 x 2 cm. in size present on the left parietal region and bleeding was present. Injury No.2 was a defused swelling, reddish in colour in the left wrist region, tenderness was present and movements were painful. Injury No.3 was a reddish abrasion 1 x 1 cm. on the right knee and left knee region. Injury No.3 was found simple in nature and X-ray was advised as regards injuries No.1 and 2. The said injuries, it was stated, were caused by blunt weapon. Dr. Prem Kumar Maghu (PW-2) had also sent a Ruqa (memo) (Ex.PE) to the In-charge, Police Post B.K. Hospital, Faridabad regarding the arrival of Bhup Singh by Hukam Singh (PW-4) who was brought dead in the hospital. He also sent a Ruqa (memo) (Ex.PF) to the Police regarding arrival of Sanjay. In cross-examination, it was stated by Dr. Prem Kumar Maghu (PW-2) that the injuries on the person of Sanjay (PW-3) were on his left side and possibility of the injuries on the left side of Sanjay (PW-3) by fall in a ditch from a height of 15 feet or more could not be ruled out. The Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [19] deposition of Sanjay (PW-3) who is a stamped witness shows the involvement of Vijay Pal alias Bijji, Ram Rattan, Kishan Pal and Rumal in the said occurrence. The role of the said appellants having been established by the recoveries and also by an eye witness account which is duly corroborated by the medical evidence of Dr. C. Paul (PW-1) and Dr. Prem Kumar Maghu (PW-2), it cannot be said that they were not involved in the occurrence which resulted in the death of Bhup Singh and injuries to the complainant-Sanjay (PW-3). The statement of Hukam Singh (PW-4), therefore, that the Police came to the hospital at 10.00/10.30 a.m. on the day of the occurrence in view of the otherwise convincing evidence is of no significance and it appears to have been made in disorientation.
The question, however, that requires to be considered is whether, in any case, an intention to kill Bhup Singh can be attributed to the appellants Bijji alias Vijay Pal, Kishan Pal, Ram Rattan and Rumal. Learned senior counsel has contended that the injuries on the person of Bhup Singh are not such which can be said to have had the intention of causing death. The injuries on the person of Bhup Singh (deceased) have been brought on record from the statement of Dr. C. Paul (PW-1) which have been noticed above. Injury No.1 is a lacerated wound 1½ inch x ½ inch on middle of forehead. Injury No.6 has been mentioned as bruises 4 inch x 1 inch over right parietal area and lacerated wound 1 inch x 1/3rd inch with bone exposed over middle of forehead and on dissection fracture of right parietal and frontal bone were found with a subdural haematoma. The cause of death in the case it has been opined was due to shock and haemorrhage due to aforesaid injuries which were ante-mortem in nature Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [20] and sufficient to cause death in the normal course of nature. It has also been opined that the injuries on the person of deceased Bhup Singh could be caused with lathis and iron rods. In the cross-examination, it is stated by Dr. C. Paul that possibility of injuries No.1 to 3 being caused from a height of 15 to 16 feet with perpendicular arm and face downward fall could not be ruled out. Besides, injury No.4 was not possible if some `Malba' falls on the back. It was also not possible by a stone. Injury No.5, it was stated, was possible by a fall. Injury No.6, it was stated, if caused singularly after striking with a stone then it was possible but if this injury was taken along with injuries No.1 to 3 then it was not possible. From the same, it may be noticed that injuries No.1 and 2 are on the forehead and on the parietal region respectively of Bhup Singh (deceased). The nature of injuries being stated and the cause of death also being stated, it cannot be said that there was no intention on the part of Vijay Pal alias Bijji, Kishan Pal, Ram Rattan and Rumal to cause the death of Bhup Singh. The defence set-up by the appellants as regards the injuries having been caused on account of fall of Bhup Singh is too farfetched and is not at all even probable. Besides, there is nothing to show that the injuries as have been suffered were the result of a fall. The doctor has merely stated that possibility as regards injuries No.1 to 3 being caused from the height 15 to 16 feet with perpendicular arm and face downward fall could not be ruled out. Dr. C. Paul (PW-1) is in fact categoric that injury No.4 was not possible if some `Malba' falls on the back and was also not possible by a stone. Injury No.6 if caused singularly after striking with a stone, it was stated, was possible but if this injury is taken along with injuries No.1 to 3 then it was not possible. Therefore, medical Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [21] evidence on record discredits the defence version of the appellants to the effect that the injuries on the person of Bhup Singh were caused by a fall. The circumstances of the case clearly show that Vijay Pal alias Bijji had struck the iron rod, Ram Rattan and Kishan Pal had caused injuries with lathis that they had and Rumal had exhorted his companions to cause the injuries.
The appellants were convicted by the learned trial Court for the offence under Section 302 IPC with the aid of Section 149 IPC. The appellants were convicted by the learned trial Court under Sections 148, 302, 149 IPC and Sections 323/149 IPC. However, it may be noticed that the offence under Section 149 IPC makes every member of an `unlawful assembly' at the time of committing the offence guilty of the offence. It creates a vicarious liability for the unlawful acts committed pursuance to the common object by the other members of the assembly. `Unlawful assembly' in terms of Section 141 IPC is an assembly of five or more persons if the common object of the persons composing the assembly is one of such acts as enumerated therein. The learned trial Court had convicted all the seven accused (now-appellants). However, the role of three appellants Shyambir, Ram Dhan and Rewati is not established and are being acquitted. Besides, the other four accused are being held liable for their acts and consequently guilty. Four persons, however, do not make an `unlawful assembly' and are not liable to be convicted with the aid of Section 149 IPC or under Section 148 IPC. Section 148 IPC relates to rioting, armed with deadly weapon. Section 146 IPC defines `rioting' as whenever force or violence is used by an `unlawful assembly', or by any member thereof, in prosecution of the Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [22] common object of such assembly, every member of such assembly is guilty of the offence of rioting. Therefore, the number of accused having been held liable and guilty being less than five would not make out an offence under Section 148 IPC. In any case, common object is the subject matter of charge and on the basis of the evidence and material on record, the said charge stands established. Therefore, in such a case the substitution of charge under Section 149 IPC with Section 34 IPC would not result in any prejudice to any of the appellants and rather in the circumstances would be formal in nature. In fact, in the facts and circumstances, it would not make any difference to the object and the intention with which the offence was committed. Therefore, conviction of the four appellants who have been held liable are to be convicted for the offence under Section 302 read with Section 34 IPC instead of with aid of Section 149 IPC. The fact that they have been charged under Section 302 read with Section 149 IPC would not, in any manner, be illegal. Therefore, the appellants Vijay Pal alias Bijji, Kishan Pal, Ram Rattan and Rewati are convicted for the offence under Section 302 read with Section 34 IPC and Section 323 read with Section 34 IPC. However, the conviction for the offence under Section 148 IPC is set aside.
In the aforesaid facts and circumstances the fact that two of the appellants, namely, Shyambir and Ram Dhan were juveniles at the time of occurrence need not be gone into as they have been held to be not liable for the occurrence that had taken place. Therefore, the question whether they were juveniles and its effect need not be gone into.
As regards the revision filed by the complainant-Sanjay, it may Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [23] be noticed that the sentence as awarded on the accused Vijay Pal alias Bijji, Kishan Pal, Ram Rattan and Rumal in the circumstances is just and proper. The appellants Shyambir, Ram Dhan and Rewati have been held to be not involved in the occurrence, therefore, the question of enhancing their sentence, in any case, does not arise. As regards the question of awarding compensation in the facts and circumstances no case is made out.
Accordingly, the appeal is partly allowed. The appellants Shyambir, Ram Dhan and Rewati are acquitted of the charges attributed to them. However, the appeal qua the appellants Vijay Pal alias Bijji, Kishan Pal, Ram Rattan and Rumal is dismissed with the modification of their conviction for the offence under Section 302 read with Section 149 IPC to that of Section 302 read with Section 34 IPC and their conviction under Section 323 read with Section 149 IPC to that of Section 323 read with Section 34 IPC. The conviction and sentence for the offence under Section 148 IPC is, however, set aside. The other sentences as they are shall remain intact except that they shall be for the offence under Section 302 read with Section 34 IPC and Section 323 read with Section 34 IPC.
( S.S. Saron) Judge July 21, 2008. (K.C. Puri) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No