Punjab-Haryana High Court
Des Raj And Others vs . State Of Haryana on 1 October, 2008
Author: K.S.Garewal
Bench: K.S.Garewal, Jitendra Chauhan
Criminal Appeal No. 216 &225 DB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: 1.10.2008
Criminal Appeal No. 216 DB of 1999
Des Raj and others Vs. State of Haryana
AND
Criminal Appeal No. 225 DB of 1999
Sher Singh and another Vs. State of Haryana
CORAM:- HON'BLE MR. JUSTICE K.S.GAREWAL
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Shri K.K.Aggarwal, Senior Advocate, assisted by
Shri Kapil Aggarwal, Advocate,
for the appellants (in Crl.A.No.216 DB of 1999)
Shri R.S.Cheema, Senior Advocate, assisted by
Shri Pawan Girdhar, Advocate,
for the appellants (in Crl.A.No. 225 DB of 1999)
Ms. Navin Malik, Additional A.G. Haryana
Mr. B.S.Saroha, Advocate, for the complainant.
K.S.GAREWAL,J.
Early in the morning of September 29, 1991 at 6.00 a.m. Umed Singh deceased, his wife Bimla(35) and son Raj Kumar (14) of Kosli faced the wrath of their co-villager Balbir Singh's family. The place was in the fields in Kosli, Police Station Jatusana, District Rewari. Umed Singh, Bimla, Raj Kumar and one Shakuntla were injured. Umed Singh died after five hours. Balbir Singh's wife Parvati and son Des Raj were also injured.
Eight persons were tried for the murder of Umed Singh and for Criminal Appeal No. 216 &225 DB of 1999 2 inflicting injuries on Bimla, Raj Kumar and Shakuntla. The eight accused were Balbir Singh and his three sons Des Raj, Mange Ram and Surender. Mange Ram's wife Rajesh was also an accused. The other set of accused were Sher Singh and his two sons Harish Kumar and Rajesh Kumar. Balbir Singh died during the trial on April 15, 1994. The learned Additional Sessions. Rewari on April 15, 1999 convicted Des Raj, Mange Ram, Surender, Sher Singh and Harish under Section 302 read with Section 149 I.P.C. and for some lesser offences. Rajesh Kumar son of Sher Singh and Smt. Rajesh wife of Mange Ram were acquitted. The conviction of the five accused has led to the filing of the Criminal Appeal No.216 DB of 1999 by Des Raj, Mange Ram and Surender and to filing of Criminal Appeal No. 225 DB of 1999 by Sher Singh and Harish Kumar.
The case of the prosecution was that Umed Singh with his wife Bimla (PW-1) and son Raj Kumar (PW-6) had gone to their fields for harvesting the bajra crop. The accused came there armed with weapons. Balbir Singh was armed with a kulhari, Mange Ram with a lathi, Surender with a bankri, Des Raj was empty handed, Sher Singh with a lathi, Harish with a lathi, Rajesh a jailli, and Smt. Rajesh with a bankri. A lalkara was raised by the accused to teach Umed Singh a lesson for purchasing some land. The attack was opened by Balbir Singh who gave kulhari blows from its reverse side on the left knee of Umed Singh, Des Raj grappled with Umed Singh and felled him on the ground. Sher Singh and Mange Ram inflicted lathi blows and Surender gave blows with a bankri on the back and hands of Umed Singh. Rajesh Kumar gave a jailli blows lathi-wise and Harish gave lathi blows. Smt. Rajesh gave 2/3 bankri blows. Sher Singh Criminal Appeal No. 216 &225 DB of 1999 3 also gave a lathi blow on Umed Singh's chest.
Bimla (PW-1) and Raj Kumar (PW-6) stepped forwarded to rescue Umed Singh and were attacked by Surender who gave a bankri blow on Bimla's head and Smt. Rajesh gave a second blow on her head. Thereafter, Mange Ram gave a lathi blow on her left hand. Raju gave a jailli blow lathi-wise on Bimla's head. Injuries were also inflicted on Raj Kumar. Alarm was raised by Bimla which attracted to many persons to the spot. They were Shakuntla, Hoshiar, Raghu Nath, Om Parkash, Siri Chand and Mahabir. When Shakuntla intervened Mange Ram gave lathi blow on her left knee. Thereafter Umed Singh was picked up by the accused and taken to their nearby tubewell where he was left to bleed. The accused ran way with their weapons.
News about the occurrence was spread in the village by Raj Kumar (PW-6). This brought Mansa, Braham and Bhagat Singh to the spot. They evacuated Umed Singh, Bimla and Raj Kumar in an auto- rickshaw to Primary Health Centre, Kosli. Dr. Ravinder Nath (PW-5) medico-legally examined Bimla at 7.30 a.m. on September 29, 1991. She had three skin deep lacerated wounds of various dimensions from 2 cm x ½ cm on the head, forearm and the web space between index and middle finger of left hand. Bimla Devi had an abrasion measuring 5 cm x 3 cm on the left thigh and a contusion measuring 15 cm x 5 cm on the right thigh. In the opinion of the Doctor the injuries were caused by blunt weapon within duration of six hours.
Raj Kumar on examination was found to have two superficial lacerated wounds on the right forearm and right side of head, an abrasion on Criminal Appeal No. 216 &225 DB of 1999 4 the left fore and three on the right lower leg.
Injury No.1 was kept under observation while the rest of the injuries were declared simple. In the opinion of the Doctor the injuries were caused within a duration of six hours.
Umed Singh had ten lacerated wounds on the arms and legs, two contusions 10 cm x 10 cm and 15 cm X 15 cm, on the upper arm and back respectively. Medical examination also showed that he had a swelling on the right forearm and left foot. In the opinion of the Doctor all the injuries were caused by blunt weapon within duration of six hours.
Umed Singh was given first aid treatment and referred to Civil Hospital, Rewari at 10.00 a.m. while Bimla and Raj Kumar were discharged and sent home. The Medical Officer also sent information to the Incharge, Police Post, Kosli informing that the three had arrived at the hospital at 7.30 a.m. ASI Balbir Singh reached the hospital to record the statement of the injured person but by the time he reached Umed Singh had been referred to Rewari and the other injured discharged. Therefore, ASI Balbir Singh got no information about the occurrence.
Umed Singh died at 1.10 p.m. on September 29. First Information Report was registered at P.S. Jatusana at 7.10 p.m. on September 29 on the basis of the statement of Bimla Devi which had been recorded by ASI Balbir Singh of Police Post, Kosli at 6.00 p.m. Special Report of the case was received by Judicial Magistrate at Rewari on September 30, 1991 at 1.25 a.m. The Investigating Officer conducted inquest proceedings on the body of Umed Singh and then sent it for postmortem examination. Dr. Criminal Appeal No. 216 &225 DB of 1999 5 V.K.Jain, Civil Hospital, Rewari (PW-4) conducted postmortem on the dead body and found nine stitched wounds on the arms and legs, bruises and abrasions numbering 14, also on the arms and legs. Medical Officer noticed swellings on the left leg and foot and right leg. In the opinion of the Medical Officer all injuries were anti mortem, he was unable to give any definite opinion regarding the weapon used for inflicting the nine wounds which had been stitched. The remaining injuries were blunt weapon injuries. The time which lapsed between injuries and death was 12 hours and between death and postmortem about 12 to 24 hours.
A certain piece of land measuring 2 acres had been purchased by Balbir Singh which gave him certain rights. Later Umed Singh also purchased some land, which sale was successfully pre-empted by Balbir Singh, who obtained a pre-emption decree from a Civil Court. Apart from this, in the proceedings before an Inquiry Officer, 14/15 years ago, between Sher Singh and Umed Singh, the former was found guilty and he began to nurse a grudge. The above land dispute had also led to a fight in which Umed Singh (alias Kanwar Singh) deceased and his son Vikram Singh had abused Balbir Singh and his Des Raj for purchasing land. Umed Singh had then inflicted kulhari blows on Balbir Singh's right arm elbow and hand while Vikram Singh inflicted hockey blows on Des Raj. On hearing the noise Rajesh son of Sher Singh (an accused in the murder case) alongwith Hoshiar Singh had reached the spot to rescue Balbir Singh and Des Raj. Consequently, F.I.R. No. 232 dated August 21, 1991 was registered at P.S. Jatusana on Balbir Singh's complaint.
Investigation of the present case was taken up by SI Jai Narain Criminal Appeal No. 216 &225 DB of 1999 6 (PW-8) who visited the spot on September 30, 1991. From the place of the occurrence in the fields of Umed Singh, the Investigator picked up 2 pairs of chappals, one large and one small in size, belonging to Umed Singh and Bimla. He also collected a rapri with a broken handle, a piece of rope and a blood stained match box.
The Investigator went to the fields of Balbir Singh and picked up blood stained earth from there. He prepared a site plan of the place of the occurrence and recorded statements of witnesses. From October 2, 1991 investigation was taken up by SI Karan Singh (PW-10) who arrested Mange Ram, Balbir Singh, Des Raj and Sher Singh. He took into possession blood stained clothes of Mange Ram and Des Raj. Mange Ram on interrogation got his lathi recovered. Balbir Singh on interrogation got his kulhari recovered.
Harish and Rajesh were arrested on October 10. Both were interrogated but nothing was recovered from them. Surender surrendered before the court on October 22 and was arrested. His interrogation led to the recovery of a bankri from his possession. On completion of investigation the police sent up only Balbir Singh and his sons Mange Ram, Des Raj and Surender. The other accused Sher Singh, Rajesh, Harish and Smt. Rajesh were not sent up for trial and placed in column 2. ( These accused were subsequently summoned on the basis of the orders passed on April 4, 1992 under Section 319 Cr.P.C.).
At the trial, charges were framed against the accused who pleaded not guilty and claimed trial. The main witnesses examined at the trial were Bimla (PW-2), Dr. V.K.Jain (PW-4), Dr. Ravinder Nath (PW-5), Criminal Appeal No. 216 &225 DB of 1999 7 Raj Kumar (PW-6), Balbir Singh (PW-7), Jai Narain (PW-8), Sub Inspector Karan Singh (PW-10).
The accused were examined without oath under Section 313 Cr.P.C. The counter version pleaded by them was that it was a false case framed by the police in collusion with the complainant party. According to Mange Ram, two years before the occurrence, his father Balbir Singh had purchased 2 acres of land and acquired rights of a co-sharer. On this basis he had been successful in pre-empting a sale in favour of Umed Singh. This led to Umed Singh and his family feeling aggrieved against Balbir Singh. On this account a fight had taken place on August 21, 1991 ( F.I.R. 232) and injuries were inflicted on Des Raj.
As regards the main occurrence, Mange Ram's version was as under:-
"On 29.9.1991 at about 6.00 AM, my mother Parvati was working in our field near the electric Kothari and my brother Desh Raj was ploughing the land at some distance and at that time Umed Singh, deceased, Bimla and Raj Kumar armed with Kasi and Bhankri had gone to my mother and caused injuries to her and on seeing this my brother Des Raj had come running there and then he too was given injuries by them. Pappu, Partap, Hoshiar and Raghbir had also arrived there and Des Raj, Pappu, Partap and Raghbir had given injuries to the complainant party in their private defence. The injuries on the person of my mother were got medico-legally examined on the same day in PHC Kohli in the presence of the complainant Criminal Appeal No. 216 &225 DB of 1999 8 party. The police had arrived in PHC Kosli and my mother Parvati had requested the police to record her statement, but the local police had collided with the complainant party and subsequently on the death of Umed Singh, had registered this false case against us."
When called upon to enter defence the accused examined 10 witnesses. Three of the defence witnesses namely Ravinder Singh (DW-1), Bhagwan Devi (DW-2), Shailender (DW-9) were witnesses regarding Sher Singh's alibi that on September 29, 1991 at 6 a.m. he was actually at home taking tuition classes. The tuition class was also attended by Ravi, Ravinder Singh, Rajesh, from 6 a.m. to 8 a.m. Bhagwan Devi had come there to take lassi.
Dr. Neel Kanth Sharma (DW-7), Radiologist, ESI Hospital, Faridabad testified that on October 28, 1991 he had performed radiological examination of Parvati and found that X-ray revealed dislocation of the right wrist, fracture of the medial condyle femur. Parvati has herself appeared as DW-9 and testified regarding the defence version.
The learned Additional Sessions Judge disbelieved the defence taken by the accused that the occurrence had taken place in their fields. The learned Court found that the recoveries of chappals, drati and blood stained match box from the complainant fields corroborated the prosecution version and confirmed that after inflicting injuries to Umed Singh, Bimla and Raj Kumar, the accused had taken Umed Singh to their nearby tubewell. The absence of drag marks on the body of the deceased did not undermine the occular evidence.
Criminal Appeal No. 216 &225 DB of 1999 9
The learned Senior counsel appearing for the appellants laid great emphasis on the abject failure of Bimla and Raj Kumar to report the matter to the police at the earliest. These two injured persons were taken to the Primary Health Centre, Kosli for medico-legal examination where they reached at 7-30 a.m. Immediately information was sent to Police Post, Kosli, a distance of only 200 yards from the Centre. The two injured remained at the Centre till about 10 a.m. when Umed Singh was taken to Rewari. They both returned home, only 200 yards from the Centre. As a matter of fact, Umed Singh/Bimla Devi's residence, Primary Health Centre and the Police Post were just 200 yards from each other and yet no information was given either by Bimla Devi or Raj Kumar to the police. Of course, Bimla Devi's statement was recorded at 6.00 p.m. at her residence, nearly 12 hours after the occurrence, and five hours after Umed Singh's death.
The significance of this delay in reporting the matter to the police was highlighted by the learned Senior Counsel by referring to the imperative need of the complainant party to build up a version that would show the accused as aggressors. This they had tried to do by shifting the scene of the crime. According to the defence, the occurrence had taken place at the tubewell of the accused and not in the fields of Umed Singh. No blood was found in the fields of Umed Singh whereas blood was recovered from the tubewell of the accused. The prosecution built up the case by trying to establish that at first the occurrence took place in their fields. Umed Singh was first injured and dragged to the tubewell of the accused. The investigation did not reveal that any injured person had been dragged Criminal Appeal No. 216 &225 DB of 1999 10 from one one place to the other. The postmortem also did not reveal that the accused had been dragged a long distance. The distance between the two sites was about 300 yards.
Furthermore, it was submitted that Parvati (mother of the appellant in Criminal Appeal No.216 of 1991) and Raj Kumar appellants were also injured during the occurrence. Parvati was medico-legally examined on September 29, 1991 at 10.30 a.m. by Dr. Ravinder Nath (PW- 5/DW-4). She was found to be having a generalised swelling on the lower part of the right arm with acute pain, tenderness and slight deformity. There were multiple abrasions on the top of the swelling and blood was oozing out. She had a lacerated wound on the right lower leg where fresh bleeding was present. Threre was acute pain and tenderness in the region. Parvati complained of acute pain in the upper part of the chest. Strangely it was after a month that Parvati was radiologically examined by Dr. Neel Kanth Sharma (DW-7) on October 28, 1991 and found to have dislocation of the right disc joint and fracture of the right leg.
As regards Des Raj, he was medico-legally examined on October 3, 1991 after his arrest. Dr. Suresh Chauhan (DW-5) who testified in this regard found an abrasion on the back which reddish green in colour and an abrasion on the left iliac crest also greenish in colour. Des Raj also had a lacerated wound on the left thumb. Injuries were stated to have been inflicted within seven days.
It was argued by learned Senior counsel that the prosecution has not given any explanation regarding the injuries received by Parvati and Des Raj. This showed that the real genesis or start of the fight had been Criminal Appeal No. 216 &225 DB of 1999 11 suppressed, prosecution witness had told lies and the defence version was more probable.
The present case is one in which medical evidence is of great importance. We say this because there was delay in reporting the matter to the police. The place of the occurrence had been shifted. There was no explanation of the injuries on two members of the party of the accused. All of this made it difficult to believe the prosecution version in totality. It is not the duty of the court to try to reconcile the versions, borrow some features from the prosecution case and add features from the defence version to come up with a common story. This is not the task which either the Trial Court or the Appellate Court can undertake. Criminal cases are decided on the basis of the evidence led by the prosecution because it is the duty of the prosecution to establish the charges framed the accused. The defence may only create gaps and holes in the prosecution case in order to derive benefit, either of outright acquittal or some reduction/modification of the offence.
Therefore, we feel that the nature and extent of the injuries received by the witnesses would help us to determine what had really transpired. Witnesses say that they were attacked by eight accused (seven men and one woman). The accused were armed with weapons like kulhari, bankri (sickle), lathis and jalli. At the trial five of the accused were convicted, three of them were the men with lathis and one was the man armed with a sickle, the fifth appellant was empty handed. We may add that if Balbir Singh had been alive, he may have found it difficult to secure an acquittal. Balbir Singh had been armed with a kulhari during the occurrence Criminal Appeal No. 216 &225 DB of 1999 12 and must have swung it around to inflict injuries. It is hard to accept that the empty-handed man or the three men holding lathis could have caused any of the lacerated wounds found on the deceased. The deceased received ten lacerated wounds as per MLR and also had some contusions. Lacerated wounds were sickle/kulhari blows received by the deceased while the contusions were the lathi blows.
It is also important to notice that no blood was found from the spot where the prosecution witnesses say the fight had occurred. It was recovered at the spot near the tubewell of the accused. The witnesses had testified that after Umed Singh had been attacked, he was dragged to the tubewell of the accused. We are unable to say with certainity the extent of injuries inflicted by the accused at the first spot. We are also unable to determine if the deceased had himself walked to the tubewell of the accused or whether he had been dragged, pushed or shoved from one place to other. The story of dragging is lacking corroboration and becomes hard to accept. Therefore, if Umed Singh received most of the injuries at the tubewell of the accused, the prosecution version certainly gets watered down, and the defence version gains acceptability. However, we are not convinced that the complainant party was the aggressor.
Learned counsel for the appellant has referred to Molu and others Vs. State of Haryana AIR 1976 SC 2499. The occurrence in that case had taken place in the morning when the deceased alongwith two others had gone to the fields to ease themselves. They were attacked by five other accused variously armed with lathis, pharsis and ganadasis. In the attack two persons died. The two deceased had received 15/15 injuries each but Criminal Appeal No. 216 &225 DB of 1999 13 none of the injuries appeared to be on any vital part except one or two injuries. Mostly the injuries were superficial and would have not caused the death. Hon'ble Supreme Court came to the following conclusion:-
"To begin with, as pointed out above, multiple injuries were received by the deceased persons which were caused by blunt weapons like lathis and are of minor character. Furthermore, the injuries are not on any vital parts of the body and even those which are on the scalp portion appear to be very superficial. There is nothing to show that the accused intended to cause deliberate murder of the two deceased persons. There is no evidence to show that any of the accused ordered the killing of the deceased persons or incited or in any way expressed a desire to kill the deceased persons at the spot. In these circumstances we are satisfied that there is no legal evidence in this case that the accused intended to cause the murder of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. As all the accused appear to have acted together and under a pre- conceived plan which developed at the spot and which is clear from the fact that they suddenly pounced on the deceased and went away together they must be deemed to have possessed a common intention to assault the deceased with the knowledge Criminal Appeal No. 216 &225 DB of 1999 14 that the injuries caused by them were likely to cause the death of the deceased. In these circumstances, the accused have committed an offence under Section 304 Part II of the Indian Penal Code and not one under Section 302 I.P.C."
Reference was made to State of Punjab Vs. Tejinder Singh and another 1995 SCC (Crl) 987. In this case the deceased had been assaulted with a gandasa. Except one injury on the head all other injuries were on non-vital parts. The head injury was muscle-deep. Under the circumstances conviction was converted from under Section 302 I.P.C. to one under Section 304 Part I read with Section 34 I.P.C. In Parusuraman alias Alias Velladurai and others Vs. State of Tamil Nadu 1992 SCC (Crl.) 292 out of thireen external injuries eleven were on the lower legs and arms. Therefore, the court held that there was no intention to cause death. Intention was only to cause grievous hurt. The accused was convicted under Section 325 read with Section 34 IPC. In Karam Singh Vs. State of Punjab 1994 SCC (Crl.) 64 the deceased had been inflicted lathi blows on the chest which resulted in rupture of liver and spleen. Conviction of the accused was converted from under Section 302 I.P.C. to one under Section 304 Part II IPC.
We have gone through the medical evidence regarding the injuries received by the members of the complainant party Des Raj and his mother. The prosecution has certainly played down the injuries received by Des Raj and his mother. Prosecution has played down the fact that the main occurrence had taken place near tubewell of the accused and not in the fields of the deceased. Keeping the injuries in view and the what had really happended, the role of the accused party gets considerably watered down. Criminal Appeal No. 216 &225 DB of 1999 15
We are of the view that the conviction of the accused under Section 302 read with Section 149 I.P.C. cannot be sustained. The act of the appellants was done without any intention to cause death or to cause such bodily injury as was likely to cause death. Des Raj was empty handed, Mange Ram, Sher Singh and Harish were armed with lathis. Only Surender was armed with a bankri. The spread, nature and extent of injuries on the deceased also support our view that the appellants had committed manslaughter and not murder. They are guilty under Section 304 Part II read with Section 149 IPC. The conviction of the appellants is converted from under Section 302 read with Section 149 IPC to one under Section 304 Part II read with Section 149 IPC. Their sentence is reduced from life imprisonment to five years rigorous imprisonment and fine of Rs.50,000/- each (in default a further period of one year rigorous imprisonment). The conviction of the appellants for the other offences and sentences awarded by the learned Sessions Judge are upheld. These sentences shall run concurrently. Fine if recovered, shall be paid to the heirs of Umed Singh deceased. The appellants are on bail, they shall be taken into custody forwith to undergo remaining part of their sentence.
(K.S.GAREWAL) JUDGE (JITENDRA CHAUHAN) JUDGE October 1, 2008 RSK NOTE: Whether to be referred to the Reporter or not? Yes Criminal Appeal No. 216 &225 DB of 1999 16