Punjab-Haryana High Court
Cra No. 608-Db Of 2 vs State Of Haryana on 17 November, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
CRA No. 608-DB of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CRA No. 608-DB of 2001
Ved Parkash and others ....... Appellants
Versus
State of Haryana ....... Respondent
2. CRA No. 666-DB of 2001
Raj Kumar ....... Appellant
Versus
State of Haryana ....... Respondent
3. CRA No. 691-DB of 2001
Shiv Kumar and others ....... Appellants
Versus
State of Haryana ....... Respondent
4. CRA No. 703-DB of 2001
Rajbal ....... Appellant
Versus
State of Haryana ....... Respondent
Date of decision: 17.11.2010
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Baldev Singh, Senior Advocate, with
Mr. Deepinder Singh, Advocate for the appellants.
Mr. S.S. Randhawa, Addl. Advocate General, Haryana.
Mr. J.S. Bedi, Advocate, for the complainant.
*****
CRA No. 608-DB of 2001 -2-
JORA SINGH, J.
By this common judgment, we propose to dispose of CRA No. 608-DB of 2001, preferred by Ved Parkash, Jai Parkash and Rajesh; CRA No. 666-DB of 2001, preferred by Raj Kumar; CRA No. 691-DB of 2001, preferred by Shiv Kumar, Jai Kumar, Mehar Chand and Joginder and CRA No. 703-DB of 2001, preferred by Rajbal, to challenge the judgment of conviction dated 9.10.2001 and order of sentence dated 12.10.2001, in Sessions Case No. 33 of 1999, arising out of FIR No. 560 dated 27.12.1998, registered under Sections 148/323/324/302 read with Section 149 of the Indian Penal Code, at Police Station Gharaunda.
By the said judgment, they were convicted under Sections 148, 323, 324, 302 read with Section 149 of the Indian Penal code and were sentenced to undergo Rigorous Imprisonment for life and to pay a fine of ` 1000/- each under Section 302 read with Section 149 of the Indian Penal Code. They were further sentenced to undergo Rigorous Imprisonment for a period of two years with fine of ` 250/- each under Section 148 of the Indian Penal code and in default of payment of fine to further undergo Rigorous Imprisonment for a period of three months each. All the convicts were further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 250/- each under Section 324 read with Section 149 IPC and in default of payment of fine they were further directed to undergo Rigorous Imprisonment for a period of three months each. They were further sentenced to undergo Rigorous Imprisonment for a period of six months each under Section CRA No. 608-DB of 2001 -3- 323 read with Section 149 of the Indian Penal Code. All the sentences were ordered to run concurrently.
Prosecution story, in brief, is that Ran Singh - complainant is the resident of village Harsinghpura. There is shamlat pond in the village and in the shamlat pond there is Harijan Chopal. There is some open space in front of the Chopal, which is the part of shamlat pond. On 27.12.1998, at about 10.00 a.m. Mehar Chand and Ishwar Singh, residents of same village started raising some construction in the shamlat land. On seeing them while raising construction Ratna contacted Sukhpal Singh, Sarpanch and informed him that Mehar Chand and Ishwar Singh, are raising construction in the shamlat land near the Harijan chopal. On receipt of information Sukhpal Singh, Sarpanch, alongwith complainant, Mewa Singh (deceased), Rajesh, Ram Phal, Parkash, Prem Singh, Krishan, Rattan Singh and Mam Chand, had gone to the spot and prevented Ishwar Singh and Mehar Chand, from raising construction. In the meantime, Ved Parkash, Jai Parkash, Rajesh, Mehar Chand, Joginder, Shiv Kumar, Rajbal and Jai Kumar, also reached there. Raj Kumar was armed with Kasola whereas accused Shiv Kumar and Rajbal, were armed with gandasas and other co-accused were armed with lathies. Accused party attacked the complainant party. Shiv Kumar, gave one gandasa blow to Ran Singh - complainant on his head, Rajbal, gave gandasa blow to Rani, Raj Kumar gave Kasola blow from reverse side on the head of Mewa Singh. Shiv Kumar, gave gandasa blow to complainant Ran Singh on his middle finger, Ved Parkash gave lathi blow to Rajesh, Jain Parkash and Mehar Chand also gave lathi blows to Rajesh. Accused Rajesh CRA No. 608-DB of 2001 -4- gave lathi blow to Ganga Devi, Jai Kumar gave lathi blow to Ram Phal and Atma Ram. Raula was raised and after causing injuries accused had fled away from the spot with their respective weapons. Injured were shifted to PHC Gharaunda. Mewa Singh who was seriously injured, was referred to General Hospital, Karnal, and from there he was further referred to PGI, Chandigarh. But on the next day he had succumbed to his injuries at PGI, Chandigarh. In view of the statement of Ran Singh - complainant, Ex. PB, initially case was registered under Sections 148/323/324 read with Section 149 of the Indian Penal Code. After the death of Mewa Singh, offence punishable under Section 302 IPC was added. Inquest report was prepared. Dead body was handed over to police officials for post mortem examination. After post mortem examination, dead body of Mewa Singh was handed over to the relations of the deceased for cremation. Rough site plan with correct marginal notes was prepared. Weapons of offence were recovered. After completion of investigation challan was presented in the Court.
Accused were charge-sheeted under Sections 148/323/ 324/302 read with Section 149 of the Indian Penal Code to which they pleaded not guilty and claimed trial.
In order to substantiate its case prosecution examined number of witnesses.
PW-1 Sukhpal Singh, Ex. Sarpanch, stated that he remained Sarpanch of his village for two times. Bhagti Devi was the Sarpanch of his village at the time of present occurrence. There is shamlat pond near the Harijan Basti and area of pond is 14 kanals 11 CRA No. 608-DB of 2001 -5- marlas as per jamabandi Ex. PA. Pond was used by all the villagers. There is Harijan Chopal in the area of about 10 marlas. 10 marlas was lying vacant and the remaining area of the pond remained under water. On 27.12.1998, at about 10.00 a.m. Rattan Singh, informed him that Ishwar Singh and Mehar Chand are raising construction on the vacant land of pond then he alongwith Rattan Singh, Prem, Ran Singh, Parkash, Ram Phal, Rajesh, Krishan, Ratna, Lal Chand and Mewa Singh, had gone at the spot. Mehar Chand and Ishwar Singh, were requested not to raise construction. Then accused party came fully armed and had caused injuries to the complainant party. Shiv Kumar and Rajbal, were armed with Gandasas. Raj Kumar was armed with Kasola and rest of the accused were armed with lathies. Raj Kumar gave kasola blow from the reverse side on the head of Mewa Singh. Injured were shifted to hospital. Ultimately, Mewa Singh, had succumbed to his injuries while lying in PGI, Chandigarh.
PW-2 Rajesh Kumar and PW-3 Ran Singh - complainant, have supported the prosecution story by saying that accused had caused injuries to the complainant party.
PW-4 Dr. Sham Wadhwa, on 29.12.1998, had radiologically examined Rani, Ganga Devi, Santu, Bhateri, Ramphal, Atma Ram, Balbir, Rajesh and Ran Singh. In case of one injury on the person of Ganga Devi, one injury on the person of Bhateri and one injury on the person of Rajesh, fracture was noticed.
PW-5 Inspector Pardeep Singh, had partly investigated the case.
PW-6 SI Raj Kumar, had also partly investigated the case. CRA No. 608-DB of 2001 -6- PW-7 Constable Prem Kumar, had prepared the scaled site plan Ex. PL, with its correct marginal notes.
PW-8 HC Jagmal Singh and PW-9 Constable Mahinder Singh, have tendered their affidavits Ex. PM and Ex. PN, respectively.
PW-10 Dr. Surinder Singh, on 28.12.1998, had conducted post mortem examination on the dead body of Mewa Singh and found following injuries:
"1. Stitched lacerated wound 5 cm long was present in the left parietal region.
2. Small abrasion 0.3 cm x 0.3 cm on the dorsum of left hand was present.
3. Extensive Sub. aponeurotic haemorrhage was present on left frontal parietal region and right frontal region.
4. There was fracture 3.5 cm long on left parietal bone and 8 cm on left temporal bone. Brain:
Contusion of size 2 x 2 x 1 cm was present in the right temporal lob.
Subrachnoid haemorrhage was present over right parietal temporal lobe of the brain. Tonsils were grooved. Brain matter was congested and oedematous. "
Cause of death was oedema of the brain due to cerebral contusion, sub-rachnoid haemorrhage and fracture of skull as a result of head injury. All the injuries were ante mortem in nature and sufficient to CRA No. 608-DB of 2001 -7- cause death in ordinary course of life.
PW-11 Dr. H.O. Bhatia, on 27.12.1998 at about 12.50 p.m. had medico-legally examined Mewa Singh and found following injuries on his person:
"1. A lacerated wound 5 cm x 1.5 cm x bone deep on the left parietal region of the scalp with ragged and irregular margin. The man was unconscious stuporous. Respiration was deep and laboured. Vomiting was present. He was referred for surgeon opinion for X-ray at G.H. Karnal."
On the same day at 1.05 p.m. he had also medico-legally examined Ran Singh and found following injuries on his person:
"1. A lacerated wound 8 cm x 1 cm x bone deep on the right parietal region of scalp obliquely placed. The margin was ragged and irregular, freshly bleeding. The area was tender to touch. Advised X-ray.
2. Lacerated wound 25 cm x 1 cm x bone deep on the right occipital region of scalp, obliquely placed with ragged and irregular margin, freshly bleeding. The area was tender to touch. Advised X-ray.
3. An incised wound 2.5 cm x 0.5 cm x 0.5 cm on the dorsum back of the right middle finger with sharp and clean cut margin, freshly bleeding. CRA No. 608-DB of 2001 -8- Advised X-ray.
4. Complaint on pain on the back of the right shoulder but no external mark of injury was present.
5. Complaint of pain on the back of right elbow but no external mark injury was seen."
On the same day at 1.15 p.m. he had also medico-legally examined Atma Ram and found following injuries on his person:
"1. Lacerated wound 2 cm x 0.5 cm x 0.5 cm on the right side of forehead 1.5 cm above the outer angle of right eye brow. The base was red and advised X-ray.
2. Complaint of pain on the front of left thigh in its middle 1/3rd area. The area was tender to touch but there was no external injury."
On the same day at 1.25 p.m. he had also medico-legally examined Rajesh S/o Dhan Singh and found following injuries on his person:
"1. A lacerated wound 2 cm x 0.5 cm x 0.5 cm on the right frontal parietal region of scalp vertically placed with red base. Area was tender to touch. Advised X-ray.
2. A red contusion 5 cm x 0.5 cm on the back of left forearm in its upper 1/3 area. The area was tender to touch. Advised X-ray.
3. An abrasion 2 cm x 1 cm on back and inner CRA No. 608-DB of 2001 -9- aspect of right forearm in the lower 1/3 area with red base."
On the same day he at 1.30 p.m. he had medico-legally examined Ram Phal and found following injuries on his person:
"1. Lacerated wound 5.5 cm x 2 cm x 1 cm on the left frontal parietal region of scalp horizontally place. Area was tender to touch. Base was red. Advised X-ray."
On the same day at 2.45 p.m. he had medico-legally examined Bhateri and found following injuries on her person:
"1 An incised wound 2.5 cm x 2 cm x whole thickness of the left side of upper lips with sharp and clean cut margins, freshly bleedings. Area was tender to touch. Advised X-ray.
2. Complaint of bleeding from the left side of external nose. The bridge of nose was tender to touch. On examination red coloured blood was present in the nasal cavity. Advised X- ray.
3. Complaint of pain on the dorso-lumber area of back but no external mark of injury was seen."
On the same day at 2.50 p.m. he had also medico-legally examined Rani and found following injuries on her person:
"1. An incised wound 5 cm x 2.5 cm x 1 cm on the front of left leg in its 1/3rd area. Area was CRA No. 608-DB of 2001 -10- tender to touch. Base was red. Advised X- ray.
2. Complaint of pain on back of right arm but no external injury was seen."
On the same day at 3.00 p.m. he had also medico-legally examined Balbir Singh and found following injuries on his person:
"1. An abrasion 2.5 cm x 1.5 cm on the outer part of the left eyebrow with red base. Area was tender to touch. Base was red. Advised X- ray.
2. Two abrasions 2 cm x 2 cm and 2.5 cm x 1 cm on the front of left leg in its lower half area. Area was tender to touch. Advised X-ray.
3. Complaint of pain on front of right thigh in its upper 1/3 area. Area was tender to touch."
On the same date at 3.10 p.m. he had also medico-legally examined Santu and found following injuries on his person:
"1. A lacerated wound 5 cm x 2 cm x 1.5 cm on the front of right leg in its middle 1/3 area. The area was tender to touch. The base was red and freshly bleeding. Advised X-ray.
2. Complaint of pain on back side of right ankle and heel but no external mark of injury was present."
In cross-examination stated that on the same day he had also medico-legally examined Raj Kumar and found following injuries on CRA No. 608-DB of 2001 -11- his person:
"1. A swelling with red contusion 5 cm x 2 cm x ½ cm on the right fronto parietal region of skull. The area was tender to touch. There was also complaint of vomiting. The pupils were equal on both the sides and reacting to light. Referred to surgeon for opinion and advised X-ray.
2. Complaint of pain on back in lumber area but no external mark of injury was present."
On the same day he had also medico-legally examined Mehar Chand and found following injuries on his person:
"1. An incised wound 2.5 cm x 0.5 cm x 0.5 cm on the Palmer aspect of right hand with red base. The base was fresh bleeding, the margins were clean cut. Advised X-ray.
2. Complaint of pain on the back of lumber area but no external mark of injury was present."
On the same day he had also medico-legally examined Jai Parkash and found following injuries on his person:
"1. A lacerated wound 2 cm x 0.5 cm x 0.5 cm on the left eye brow area. The area was tender to touch, base was red and freshly bleeding. Advised X-ray.
2. Complaint of pain on the back of neck. Area was tender to touch but no external injury was CRA No. 608-DB of 2001 -12- present."
On the same day he had also medico-legally examined Ishwar Singh and found following injuries on his person:
"1. Complaint of pain on the front of left side of chest but no external mark was present. Area was tender to touch."
On the same day he had also medico-legally examined Kamlesh and found following injuries on her person:
"1. Two abrasions 1 cm x 1 cm each on the back of left hand with red base. Area was tender to touch. Advised X-ray.
2. An abrasion 1/2 x 1/2 cm on the front of right knee with red base."
On the same day he had also medico-legally examined Kanta and found following injuries on her person:
"1. Two abrasions 1/2 cm x 1/2 cm each on the front of left wrist. The base was red. Area was tender to touch. Advised X-ray.
2. An abrasion 2 cm x 1/2 cm on the back of right hand. The base was red. Area was tender to touch."
PW-12 SI Hari Singh, stated that on completion of investigation he had prepared report under Section 173 Cr.P.C.
PW-13 Dr. Sanjeev Grover, on 29.12.1998 had medico- legally examined Ganga Devi and found following injuries on her person:
CRA No. 608-DB of 2001 -13-
"1. Laceration 1 cm x 0.5 x 0.5 cm over the anteromedial aspect of left leg about 5 cm above the left medial melleous. Clotted blood with scab formation was present. Diffuse swelling over the ankle and leg around the injury within 24 to 72 hours."
PW-14 Inspector Prem Singh, had also partly investigated the case.
PW-15 SI Hardwari Lal, had initially investigated the case. PW-16 Dr. K.K. Devindra, stated that injured Mewa Singh was admitted in PGI, Chandigarh, at 5.05 p.m. on 27.12.1998 and died at 12.20 a.m. On 28.12.1998. He had prepared his death summary Ex. PHH/2 as per record. Ruqa Ex. PHH/1 was sent to the concerned police station.
After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded wherein they denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of Jai Parkash, Raj Kumar, Mehar Chand, Joginder Singh and Rajbal was that Ishwar Singh and Mehar Chand, were in possession of the plot for the last 20 years situated adjacent to their houses and the plot was being used to tether their cattle. They had constructed Khurli (Manger) on it and affixed pegs inside the plot after filling the plot with earth. On the day of occurrence Ishwar Singh and Mehar Chand were repairing their Khurli and they were assaulted by Sukhpal Singh and other PWs, in order to dispossess them from the plot in question. Sukhpal Singh gave gandasi blow on the right side of CRA No. 608-DB of 2001 -14- head of Raj Kumar. He was empty handed and became un-conscious. Complainant party caused injuries to Mehar Chand, Ishwar Singh, Jai Parkash, Kamlesh and Kamla with lathies and gandasis. Ishwar Singh, Mehar Chand and other had also caused injuries to the complainant party by hurling brick bats in their self-defence. In fact complainant party was the aggressor because complainant party had no business to stop Ishwar Singh and Mehar Chand for using the plot in question. On hearing raula of Ishwar Singh and Mehar Chand other accused came at the spot and intervened to save the situation.
Defence version of Ved Parkash, Rajesh and Shiv Kumar, was that they were not present at the spot.
In defence, DW-1 HC Sunder Singh, had brought to Roznamcha of 4th Battalion, MAP, Madhuban.
DW-2 HC Ram Sarup , stated that he was serving as Constable and was promoted as HC in the year 1993. In the month of December, 1998, he was posted at MAP, Post Rohtak. Suresh Chander and Shiv Kumar, were also serving as constables. As per daily diary register on 27.12.1998, Shiv Kumar was present in the morning roll call which was held at 8.30 a.m. in the police post. Throughout the day he remained in the police post. He was not on leave.
After hearing learned Public Prosecutor for the State, learned defence counsel and going through the record, the appellants were convicted and sentenced vide order, as stated aforesaid.
We have heard learned counsel for the appellants, learned State counsel, learned counsel for the complainant and have carefully CRA No. 608-DB of 2001 -15- gone through the evidence available on the file.
Learned defence counsel for the appellants argued that Ishwar Singh and Mehar Chand being the proprietors of the village were in possession of the plot for the last 20 years. Plot was adjacent to their residential houses and was being used by them to tether their cattle. Khurlies were constructed and pegs were fixed inside the plot after filling the plot with earth. Ishwar Singh and Mehar Chand were reparing the khurlies, when complainant party came and attacked the appellants. Raj Kumar, Mehar Chand, Jai Parkash, Ishwar Singh, Smt. Kamlesh and Smt. Kanta, received injuries from the side of the appellants and to protect the property and in self-defence, appellants had caused injuries to the complainant party. Complainant party was the aggressor. According to the prosecution story, Mehar Chand and Ishwar Singh were raising construction then Sukhpal Singh and other PWs came. According to the complainant party, appellants came fully armed and had caused injuries but this fact is not correct one. Initially, Mehar Chand and Ishwar Singh, were present when they were raising construction. After that other appellants including the ladies came. When Mehar Chand and Ishwar Singh, were restrained from raising construction then suddenly, there was fight amongst the parties. 10 persons from the side of complainant party including the deceased received injuries. 6 persons from the side of the appellants received injuries. Only one injury from the reverse side of the Kasola was given by Raj Kumar on the head of Mewa Singh. Blow was not repeated. Only one injury on the person of Bhateri was found to be grievous in nature. Injuries on the person of Ran Singh, Atma Ram, Rajesh, CRA No. 608-DB of 2001 -16- Ramphal, Balbir Singh and Santu were found to be simple in nature. When Ishwar Singh and Mehar Chand were raising construction and were restrained by the complainant party then there was a raula. Number of persons from both sides including ladies came at the spot. In a free fight, number of persons from both the sides received injuries. There was no common object to commit the crime. Appellants are individually liable for their own acts.
Learned State counsel argued that occurrence is an admitted fact. As per defence version of Jai Parkash, Raj Kumar, Mehar Chand, Joginder Singh, Rajbal and Ishwar Singh, they were present at the time of occurrence. Sukhpal Singh and other PWs from the side of complainant party were present. Allegation of the appellants is that in self-defence, Jai Parkash, Raj Kumar, Mehar Chand, Joginder Singh and Rajbal had caused injuries to protect possession of the plot but defence version is not correct one. Ishwar Singh and Mehar Chand, were raising construction on the vacant plot owned by the Gram Panchayat. Rattan had informed Ex-Sarpanch, Sukhpal Singh then Sukhpal Singh alongwith Rattan and other injured came at the spot. Appellants were found present there. They were fully armed. Appellants had the common object to cause injuries. Two appellants were armed with gandasis and one was armed with Kasola. When all the appellants came together fully armed to cause injuries then all the appellants are liable for punishment as observed by the trial Court.
According to the prosecution story, there was a village pond and the pond was being used by all the villagers. There was a Harijan Chopal on some portion of the pond and this fact is clear from the copy CRA No. 608-DB of 2001 -17- of jamabandi Ex. PA. 14 kanals 11 marlas was the area of the pond owned by the Gram Panchayat. Ishwar Singh and Mehar Chand were raising construction in the vacant plot in front of the Harijan Chopal. When they were restrained from raising construction then appellants fully armed had caused injuries to the complainant party whereas defence version of the appellants is that Mehar Chand and Ishwar Singh were in possession of the plot for the last 20 years as proprietors of the village. Plot was used to tether cattle. On the day of occurrence they were repairing the khurlies. Complainant party came and restrained Ishwar Singh and Mehar Chand from repairing the khurlies. Complainant party had attacked the appellants and in self-defence appellants had caused injuries to the complainant party.
The main point which requires consideration in this case is whether all the appellants fully armed came at the spot together and with common object had caused injuries to the complainant party?
As observed earlier, in view of the Jamabandi Ex. PA on the file Gram Panchayat was the owner in possession of the pond measuring 14 kanal 11 marlas. Some portion of the pond was lying vacant and there was a Harijan Chopal. No documentary proof on the file from the side of the appellants that Ishwar Singh amd Mehar Chand were in actual possession of the pond measuring 14 kanal 11 marlas owned by Gram Panchayat. In case Mehar Chand and Ishwar Singh were in actual possession of the pond then copy of jamabandi or khasra girdawri could easily be produced. By constructing khurlies or affixing pegs in the plot owned by the Gram Panchayat, Ishwar Singh and Mehar Chand, cannot be the owner in possession of the plot as CRA No. 608-DB of 2001 -18- proprietors of the village. Plot measuring 14 kanal 11 marlas was owned and in possession of the Gram Panchayat. All the villagers had the right to use the common pond owned by the Gram Panchayat.
Mehar Chand and Ishwar Singh, were raising construction in the open plot owned by the Gram Panchayat. Rattan informed Ex- Sarpanch, Sukhpal Singh, regarding the construction raised by Mehar Chand and Ishwar Singh. Then Sukhpal Singh alongwith Rattan and others came at the spot and requested Mehar Chand and Ishwar Singh, not to raise construction. There was a raula. Mehar Chand and Ishwar Singh were adamant to raise construction on the allegation that they being proprietors of the village are in possession of the plot for the last 20 years. On hearing raula other appellants including ladies namely, Kamlesh and Kanta came at the spot. From the side of complainant party Ganga Devi, Bhateri and Rani also came at the spot. There was a free fight amongst the parties. 10 persons including the deceased received injuries from the side of the complainant party. 6 persons including two ladies received injuries from the side of the appellant party. Only one injury on the person of Mewa Singh by Raj Kumar from the reverse side of the kasola. Rajbal and Shiv Kumar were armed with Gandasis. Other appellants were armed with lathies. 5 injuries were noticed on the person of Ran Singh - complainant, 2 injuries on the person of Atma Ram, 3 injuries were noticed on the person Rajesh, 1 injury on the person of Ram Phal, 3 injuries were noticed on the person of Bhateri, 2 injuries were noticed on the person of Rani, 3 injuries were noticed on the person of Balbir Singh and 2 injuries were noticed on the person of Santu. Only one injury on the person of Bhateri was found to CRA No. 608-DB of 2001 -19- be grievous in nature. Other injuries were found to be simple in nature.
2 injuries were noticed on the person of Raj Kumar, 2 injuries were noticed on the person of Mehar Chand, 2 injuries on the person of Jai Parkash, 2 injuries were noticed on the person of Ishwar Singh, 2 injuries were noticed on the person of Kamlesh and 2 injuries were noticed on the person of Kanta, by the doctor. 2 injuries on the person of Jai Parkash and one injury on the person of Ishwar Singh, were with blunt weapon. Only one injury on the person of Raj Kumar, was found to be grievous in nature. Other injuries were found to be simple in nature with blunt weapon.
According to the prosecution story, all the appellants came together fully armed and in case appellants came together fully armed then how injuries on the person of Smt. Kamlesh and Kanta, were noticed from the side of appellants.
According to the complainant, he alongwith Mewa Singh, Ramphal, Sukhpal Singh, Sarpanch, Rajesh, Parkash, Prem Singh, Krishan, Rattan Singh and Mam Chand had gone to the spot where Ishwar Singh and Mehar Chand were raising construction but Atma Ram, Bhateri, Santu, Rani, Balbir Singh and Ganga Devi, had not gone at the spot alongwith the complainant and others.
Ran Singh, alongwith Mewa Singh, Ramphal, Sukhpal Singh, Sarpanch, Rajesh, Parkash, Prem Singh, Krishan, Rattan Singh and Mam Chand, had gone at the spot where Ishwar Singh and Mehar Chand were raising construction. From the side of complainant party Atma Ram, Bhateri, Santu, Rani, Balbir Singh and Ganga Devi, had not gone at the spot initially but they had also received the injuries. When CRA No. 608-DB of 2001 -20- they were not initially at the spot alongwith complainant and others then it means that they came at the spot later on. As per FIR, complainant party had not caused injuries in to protect possession but in Court injured and the complainant stated that complainant party in self- defence to protect possession had also caused injuries to the appellants party as well. Arrival of different persons from both the sides at different times on the spot shows that when there was raula then number of persons from both sides started coming at the spot. Both the parties received injuries. 10 persons including the deceased received injuries from the side of the complainant party. 6 persons from the side of the appellants received injuries. When all the appellants had not come at the spot fully armed together then we are of the view that trial Court wrongly opined that appellants had the common object to commit the crime. Evidence on the file rather shows that there was a free fight amongst the parties. Both sides received injuries. Appellants are individually liable for their own acts.
Raj Kumar was armed with Kasola and from the reverse side of Kasola he gave single blow to Mewa Singh-deceased. Blow was not repeated. If intention was to murder then Kasola from its right side should have been used. Raj Kumar could easily repeat the blow. He had not caused injuries to any other witness. Common plot was owned by the Gram Panchayat and on some portion there was a Harijan Chopal. Some portion was lying vacant. Plot owned by the Panchayat was being used by all the villagers. But Mehar Chand and Ishwar Singh were intending to occupy the plot. When they were raising construction then there was a free fight. So intention was not to murder but to cause CRA No. 608-DB of 2001 -21- injuries by one party to the other to protect plot. Raj Kumar, is liable for punishment under Section 304-Part-II and not under Section 302 IPC.
Occurrence is dated 27.12.1997. Before the present occurrence there was no enmity amongst the parties. Appellants are the first offenders and belong to poor families.
Raj Kumar has already undergone 5 years and 8 months out of the actual sentence. Keeping in view the circumstances of the case he is directed to undergo Rigorous Imprisonment for a period of 7 years under Section 304-Part II, IPC and to pay ` 2 lacs as fine within two months before the trial Court, payable to the widow of deceased Mewa Singh as compensation.
Joginder Singh, armed with lathi gave blows to ladies i.e. Rani and Bhateri and is liable for punishment under Section 325 IPC. He has already undergone about 8/7 months under Section 325 IPC. He is directed to undergo Rigorous Imprisonment for 2 years and directed to deposit ` 40,000/- as fine payable to both the ladies namely Bhateri and Rani in equal shares as compensation.
Other appellants have also undergone some portion of the sentence and they are directed to undergo imprisonment already undergone for their individual act under Section 323/324 of the Indian Penal Code.
For the reasons recorded above, all the four appeals are partly allowed.
Appellants namely, Raj Kumar and Joginder, are on bail. They are directed to surrender before the concerned authorities/Chief Judicial Magistrate, Karnal, to undergo the remaining period of sentence CRA No. 608-DB of 2001 -22- failing which, the concerned authority/Chief Judicial Magistrate, Karnal, to issue re-arrest warrants against them for undergoing the remaining period of sentence awarded to them.
( JORA SINGH )
JUDGE
November 17, 2010 ( SATISH KUMAR MITTAL )
rishu JUDGE