Punjab-Haryana High Court
Dharamvir And Ors. vs State Of Haryana on 31 May, 1993
Equivalent citations: 1994CRILJ1281
JUDGMENT S.K. Jain, J.
1. Dharamvir, Surender, Nahar Singh and Hari Ram, appellants, were tried on charge for the murder of Ram Niwas and for injuries of Daya Ram and Ram Partap witnesses by the learned Additional Sessions Judge, Narnaul. He convicted and sentenced them as under vide his judgment dated 2-5-1991:-
Accused Dharamvir to undergo rigorous imprisonment for life and to pay a fine of Rs. 3000/- and in default of payment of fine to further undergo rigorous imprisonment for one year under Section 302, Indian Penal Code. It was further ordered that out of the fine of Rs. 3000/-, on recovery, an amount of Rs. 2500/- be paid to the legal heirs of the deceased Ram Niwas as compensation.
Accused Hari Ram was convicted under Sections 325 and 323, Indian Penal Code but was released on probation on entering into bonds in the sum of Rs. 10,000/- with one surety in the like amount for a period of one year. He was further ordered to pay a sum of Rs. 1500/- to Ram Partap injured P.W. and Rs. 200/- by way of costs of proceedings under Section 325, IPC. Hari Ram was also ordered to pay Rs. 400/- by way of compensation to Daya Ram P.W. and Rs. 100/- to Ram Partap P.W. as compensation under Section 323, IPC.
Accused Surender was convicted under Section 323, IPC but was released on probation, on entering into bonds in the sum of Rs. 10,000/ -with one surety in the like amount for a period of one year. He was further ordered to pay compensation in the sum of Rs. 250/- each to Daya Ram and Ram Partap, P.Ws. in addition to Rs. 100/- as costs of proceedings.
Nahar Singh accused was convicted under Section 323, IPC but was released on probation, on entering into bonds in the sum of Rs. 10,000/- with one surety in the like amount for a period of one year. He was further ordered to pay Rs. 100/- as compensation to Ram Partap, P.W.
2. Accused Hari Ram, Nahar Singh and Surender were directed to keep peace and be of good behaviour during the period of one year, faling which they were directed to appear and to receive the sentence when called upon during the said period.
3. Feeling aggrieved against their conviction and sentence, appellants have come up in appeal. On the other hand, Ram Partap, father of the deceased, has filed Criminal Revision No. 564 of 1991 seeking enhancement of the sentence and amount of compensation. Both these cases are proposed to be disposed of by this single judgment.
4. In brief, the facts of the prosecution case are that land of Ram Partap P.W. 5 was situated at a distance of about one kila from the land of Hari Ram accused, resident of village Hassanpur. In the second week of March, 1989, a Jhota (he Buffaloe) had entered into the field of Ram Partap. His son Ram Niwas drove it out of his field, that Jhota then entered into the field of Hari Ram. Surender son of Hari Ram objected to it and abused Ram Niwas who slapped him. Ram Partap rebuked his son Ram Niwas and pacified Surender but the matter did not rest there. On 22-3-1989 at about 6 a.m. Hari Ram accused, his son and co-accused Surender and their collateral and co-accused Dharamvir abused Ram Niwas who was on his way to ease himself. Dharamvir accused hit him with a lathi. Daya Ram P.W. reached there and saved Ram Niwas from the clutches of the accused. At about 7.00 p.m. on the same day, Ram Partap was sitting in front of his Nohra and enjoying Huka, Dharamvir accused passed by his Nohra and when Ram Partap asked him as to why he had been teasing his son Ram Niwas he replied that he would kill Ram Niwas one day. Thereupon, Ram Partap said that he could kill him just then. Nahar Singh and Hari Ram accused armed with lathis had also reached there in the meanwhile. Nahar Singh hurled a lathi blow on Ram Partap but he caught hold of that lathi. Hari Ram gave three lathi blows on the right elbow, shoulder and forehead of Ram Partap. Dharamvir accused who had gone to his house returned there with a Pharsi. Surender accused also reached there with a lathi. He gave three lathi blows on the person of Ram Partap. When Ram Niwas tried to save his father, Ram Partap, Daramvir accused dealt a pharsi blow which landed on the head of Ram Niwas. Daya Ram, Kurda and Siri Ram in order to save the members of the complainant party intervened. Hari Ram and Surender accused inflicted injuries on the person of Daya Ram P.W. The members of the complainant party in the exercise of the right of their self defence gave lathi blows to the members of the accused party. After the accused left the place of occurrence Ram Niwas, Ram Partap and Daya Ram were removed to Government Hospital, Narnaul in the tractor trolly of Sube Singh. Dr. Dinesh Poddar medico-legally examined Ram Partap and Daya Ram and found that Ram Niwas was dead. He sent ruqa Ex.PC to the police.
5. On receipt of the said ruqa in Police Station Saddar Narnaul, Head Constable Om Parkash P.W. 10 accompanied Inspector Mohd. Tayub (since dead) to Civil Hospital, Narnaul. Statement Ex.PV of Ram Partap was recorded by Inspector Mohamed Tayub. at 10-50 p.m. on 23-3-1989 and on the basis thereof formal First Information Report Ex.PV/2 was recorded at 11-05 p.m. on the same day by MHC Ansi Lal in the Police Station Saddar, Narnaul. Special report was conveyed to the learned Illaqa Magistrate at 12-30 a.m. on 23-3-1989. Inquest report Ex. PR was prepared and rough site plan Ex.PB was drawn by the Inspector. Blood stained earth was also lifted from the spot vide recovery memo Ex.PX and dead body was sent for post-mortem examination.
6. P.W. 3 Dr. Vijay Bansal conducted post-mortem examination on the dead body of Ram Niwas on 23-3-1989 at 11-40 a.m. He found as under:-
The length of the body was five feet eight inches approximately. The body was wearing white kurta and pyjama, white baniyan and red under-wear. The body was moderately built. Post mortem staining was present on the dependent parts. Rigor mortis was present in all the limbs:
Injuries :-
1. An incised wound 7x3 cms. long on the left side of parietal bone, 12 cms, away from the left and 17 cms away from the right ear. It was spindal shape. The margins were clean-cut, smooth and well defined. Hair roots were cut. The wound was gaping more on posterior side and tapering anteriorily. The bone was exposed. Wound was vertical in direction. The parietal bone underneath the wound was found to be fractured. On further dissection, a sub-dural haemotoma was found. Size was 5x2 cm. x 1 cm.
The walls, ribs and cartilages, pleura, larunx and trachea, pericardium, large vessels, abdominal walls, peritonium and organs of generation were found to be healthy, Lungs, membrance, liver, spleen, and kidneys were found to be congested. Right side and left side of the heart were full of blood. In small intestine, stomach and large intestine, semi-digested food particles were present.
7. The Autopsy Surgeon opined : (i) that the cause of death was injury No. 1 to vital organ (brain); (ii) that the injury was ante-mortem in nature and was sufficient to cause death in normal course of nature; (iii) that probable time between death and injury was within minutes and between death and postmortem was within 24 hours; and (iv) after examining pharsi Ex.P10 he opined that the injury on the person of Ram Partap could have been caused by the said weapon. The doctor removed kurta, pyjama, baniyan and underwear, Ex.P2to Ex.P5 respectively from the dead body at the time of post-mortem examination and delivered the same to the police in the shape of a sealed parcel.
8. Dr. Dinesh Poddar P.W. 2 had medico legally examined Ram Partap P.W. and found following injuries on his person on 22-3-1989:-
1. Lacerated wound 4 cm x 0.7 cm x 0.3 cm on the right frontal region 6 cm. above the right eye-brow. Bled on cleaning and surrounding swelling was present.
2. Diffused swelling on the right elbow joint more on the postero-lateral aspect of the elbow joint. Advised X-ray.
3. Swelling diffuse on the right fore-arm lower 2/3rd region with tenderness present. Advised X-ray.
4. Reddish contusion 5 cm x 4 cm. on the lateral surface of right upper 1 / 3rd region of arm.
5. Reddish contusion 4 cm x 2 cm on the dorsum of left hand opposite 2nd metacarpal.
6. Reddish contusion 5x5 cms on the superior surface of left shoulder joint.
7. Abrasion 1 cm x 0.5 cm on the left index finger. Bled on cleaning.
8. Complaining of pain in calf muscles of left leg. But there was no swelling and no external injury visible.
9. He opined that all the injuries were caused by blunt weapon; that injuries Nos. 4 to 8 were simple in nature whereas injury No. 1 was kept under observation and that the nature of injuries Nos. 2 and 3 will be declared after radiological examination.
10. Dr. Vinay Choudhary P.W. 1 had radiologically examined Ram Partap vide X-ray report Ex.PB and found fracture of shaft of right ulna. After seeing the X-ray report Dr. Poddar had opined that injuries Nos. 2 and 3 on the person of Ram Partap were grievous.
11. Dr. Poddar had medico legally examined Daya Ram PW at 12.00 mid-night on the same day and found following four injuries on his person :---
1. Lacerated wound 3.5 cm x 1 cm x 2 cm on the right side of occipital protruberance. Bled on cleaning with surrounding swelling.
2. Reddish contution 5 cm x 1 cm on the right fore-arm lower 1/2 with surrounding swelling. Tenderness was present. Advised X-ray.
3. Abrasion 1 cm x 5 cm. on the lateral aspect of right elbow joint with Surrounding swelling. Advised X-ray.
4. Reddish contusion 12cmx 1.5 cm on the right side of back, middle 1/3rd region.
12. He opined that all the injuries were caused by blunt weapon within a duration of 24 hours. Injury No. 4 was simple and injuries Nos. 2 and 3 were advised to be X-rayed. Injury No. 1 was kept under observation. After seeing the report Ex.PA of the Radiologist Dr. Vijay Choudhary, the doctor opined that injuries Nos. 2 and 3 were simple in nature.
13. On the same day, at 10-30 p.m. Dr. Poddar medico legally examined Hari Ram, Omkar, Nahar Singh and Dharamvir. He found following injuries on their persons :-
Nahar Singh Accused
1. Lacerated wound 3.5 cm x 1.00 cm x 0.3 cm on the left parietal region 10 cm. above the tragus of left ear. Bled on cleaning with surrounding swelling.
2. Swelling 4 cm x 3 cm on the left forearm medial aspect and in the middle 1 / 3rd region.
3. Complaint of pain on the right shoulder joint superior surface but there was swelling and no external injury was seen.
He opined that all the injuries were caused by blunt weapon within 25 hours duration and were simple in nature.
Dharamvir Accused
1. Lacerated wound 5.5 cm x 1 cm x 3 cm on the left fronto-partietal region 11 cms above the tragus of left ear. Placed in saggital plane. Fresh bleeding and surrounding swelling was present.
2. Swelling 5 cm x 4 cm on the superior surface of left shoulder joint and over scapular region upper 1/3rd.
3. Swelling 2 cm x 1.5 cm on the postero lateral surface of right forearm lower 1 /3rd.
The doctor opined that these injuries had been caused by blunt weapon within duration of 24 hours. Injuries No. 2 and 3 were simple.
Hari Ram Accused
1. Lacerated wound 3 cm x 0.7 cm x 0.3 cm on the left parietal region placed in saggital plane 14 cms from the base of the nose and 15 cm. from the tragus of left ear. Bled on cleaning with surrounding swelling.
2. Reddish contusion 4 cm x 3 cm. on the posterior surface of right forearm upper 1/3rd region.
The doctor opined that the injuries had been caused by blunt weapon within 24 hours. Injury No. 2 was simple.
Omkar DW
1. Diffuse swelling all around the upper half of the left leg with lacerated wound 2 cm x 1 cm x bone deep on the left leg 5 cm. below the tibial tubrocity. Bled on cleaning. Advised X-ray.
2. Diffuse swelling 4 x 3 cms. behind the left mastoid process on the occipital region.
3. Reddish abrasion 2.5 cm x 1 cm. on the left medial (original MLR).
4. Complaining of pain on both the scapular regions but there was no swelling and no external injury was seen.
The doctor opined that all the injuries had been caused by blunt weapon. Injuries Nos. 1 to 3 had been caused within 24 hours. Injuries Nos. 3 and 4 were simple. After seeing report Ex. DA of Radiologist Dr. Vinay Chaudhary, he opined that injury No. 1 was grievous.
14. Accused Hari Ram, Nahar Singh and Surender were arrested on 27-3-1989 whereas Dharamvir on 28-3-1989. They were interrogated and in pursuance of their disclosure statements accused Hari Ram, Surender, and Dharamvir got recovered lathis Ex.P.8-9 and pharsi Ex.P. 10 respectively which were seized.
15. After completion of investigation and other formalities the accused were arranged for trial on such like allegations for the murder of Ram Niwas and causing injuries to P.Ws. Ram Pratap and Daya Ram.
16. Before their trial Court, in order to prove its above referred case, the prosecution examined 10 witnesses. Ram Partap and Daya Ram, eye witnesses, supported the version of the prosecution.
17. All the accused except Surender when examined by the trial Court under Section 313, Code of Criminal Procedure, came forth with the plea of self-defence. Accused Surender came out with the plea that 10-15 days prior to the occurrence there was a dispute between him and Ram Niwas regarding jhotta entering into their field. At that time Ram Partap was not present. He had slapped Ram Niwas. On the day of occurrence in the morning hours Ram Niwas deceased threatened him to teach a lesson for giving him a slap. They were separated by Dharamvir and had gone to their respective houses. On the day of occurrence, the members of the complainant party had come to give him a thrashing and he was not present in his 'Ghar' at that time. He had been falsely involved in this case.
18. Accused Dharamvir contended that on the day of occurrence, in the morning hours, Surender accused and Ram Niwas deceased had quarrelled. Ram Niwas had threatened Surender to teach him a lesson for giving him slap about 10-15 days prior to that day. He separated them. On the date of occurrence at about 5-00 p.m. Ram Partap, Daya Ram and Ram Niwas deceased came to the 'Ghat' of Surender in order to give him a beating, Surender was not present there. They inflicted injuries on the person of Hari Ram, father of Surender. Omkar was also given injuries. He and Nahar Singh were there. He and Omkar and acted in self defence. Kurda and Siri Ram were not present there.
19. The accused-appellants, when called upon to lead evidence in defence, examined Omkar DW 1.
20. The trial Court believing the ocular evidence of Ram Partap and Daya Ram, eye witnesses, coupled with the medical evidence convicted and sentenced the appellants as referred to above.
21. We have heard the learned counsel for the parties, besides perusing the record.
22. The following pedigree table will help in understanding the facts of this case.
Common ancestor
---------------------------------------------------------------
| |
Gharhu --------------------------------------------
| | |
Dhansi Chhajju Lokhu Lekha
Bhagirath | | | |
| Asha Gauri Sahai |--------| Chuhar
| | Khurja Gopal |
|
Jai Sukh Onkar | Pokhar Mangta
| (DW-1) | |
Siri Ram Hari Ram Ganpat Rampartap Nahar
(NE) (A-9) | (PW-5) (A-3)
|
| Daya Ram Ram Niwas Charmvir
Surinder (PW-6) (deceased) (A-1)
23. Mr. R. S. Cheema, learned Senior Advocate for the appellants has argued that the occurrence had taken place at 7 p.m. on 22-3-1989 and injured had reached the hospital before 9.00 p.m. on that very day. The police had reached the hospital at 9-45 p.m. but the statement of Ram Partap PW was not recorded up till 10-50 p.m. Thus this period of 1 Vi hours was utilized by the police _ in examining the injuries and then giving shape to the prosecution version thereby assigning individual injuries to each of the accused persons. It was a clear attempt on the part of the prosecution to pre-empt the right of self defence of the accused. This argument is without merit. The injured had arrived in the hospital at 9-00 p.m. Dr. Dinesh Poddar P.W. 2 had scribed ruqa Ex.PC at 9-00 p.m. and sent the same to SHO Saddar, Narnaul. This doctor in his cross-examination has stated that so far as he recollected, the police had come to the hospital within 1-1/2 hours. So this is a rough estimate of the time of the arrival of the police in the hospital. The Inspector Mohd. Tayub must have consumed some time in scribing application and obtaining opinion of the doctor regarding the fitness of Ram Partap to make a statement. He was grievously injured and, therefore, much time must have been spent in recording his statement. Ex.PV. The FIR was recorded within a matter of 15 minutes i.e. at 11-05 p.m. on 22-3-1989 in the Police Station without any loss of time.
24. There is no material contradiction in the FIR and the statement of Ram Partap at the trial. P.W. Daya Ram who is also a stamped witness, has fully corroborated his version. Both of them were subjected to lengthy and searching cross-examination but no dent in their testimony could be created. They have consistently stated that Nahar Singh accused dealt a lathi blow to Ram Partap but he had caught hold of the said lathi. Hari Ram dealt three lathi blows on his right elbow, right shoulder and right forehead. Surender accused inflicted three lathi blows on his left hand fingers, left shoulder and left leg. As Ram Niwas stepped forward to rescue him, Dharamvir aimed a pharsi blow which landed on his head. When Daya Ram was in process of lifting Ram Niwas then Hari Ram and Surender accused dealt two lathi blows each on the person of Daya Ram thereby inflicting injuries on the back of his head, right elbow, left shoulder and on the back. In the exercise of the right of their self defence, Ram Partap inflicted injury to Hari Ram whereas Daya Ram caused injuries to Dharamvir and Nahar Singh with their respective lathis. Their testimony has been fully corroborated by medical evidence. Dr. Vijay Bansal PW. 3 who conducted postmortem examination has described the injuries received by Ram Niwas. He found one injury on the dead body. He has described that injury to be an incised wound 7x3 cms on the left side of parietal bone, 12 cms. away from the left and 17 cms away from the right ear. It was spindal shape. The margins were clean cut, smooth and well defined. Hair roots were cut. The wound was gaping more on posterior side and tapering anteriority. The bone was exposed. Wound was verticle in direction. The parietal bone underneath the wound was found to be fractured. On further dissection, a sub-dural haemotoma was found its size was 5x2 cms x 1 cm. The evidence of Dr. Poddar and the description of the injury given by him in the post-mortem report tend to show that pharsi Ex.PI which was examined by him was utilized by the assailant of Ram Niwas and that is clear not only from the description of the injury but from what Dr. Bansal has stated in his evidence. He says: "On police request Ex.PS, I opined vide Ex.PS/1 that the injury as explained in PMR No. VKB/2 of Ram Niwas son of Ram Partap could be caused by weapon shown to me at the time of making the request of opinion." The medical evidence thus fully supports the eye witnesses' account according to which accused Dharamvir had dealt one pharsi blow on the head of Ram Niwas.
25. Learned counsel for the appellant has laid much stress on the testimony of Omkar DW 1 and has submitted that as a matter of fact the occurrence had taken place at the Nohra of Omkar and that the complainant party was the aggressors and the accused had inflicted injuries on the persons of Ram Niwas, Ram Partap and Daya Ram in exercise of the right of their self defence. We have subjected his evidence to minute scrutiny. The occurrence had taken place on 22-3-1989. Omkar's son Hari Ram, grandson Surender, couson Nahar Singh and nephew Dharamvir (son of Nahar Singh) are the accused in this case. His statement was recorded on 25-4-1991. Till then no complaint whatsoever was filed by him to the higher authorities against the Investigating Agency for having falsely involved his close relatives. He is an old man of 70 years. We cannot accustom our mind to a thought that his memory would not fail him and he would give a photographic description of what he had seen about one year back.
26. Even on behalf of the accused, the date and time of occurrence has been admitted but they have put up their own story with regard to the manner and place of occurrence. But in view of the fact that the earth which was lifted from the spot and seized vide recovery memo Ex.PX was found to be stained with human blood vide report Ex.PGG of the Assistant Chemical Examiner, Forensic Science Laboratory, Madhu-ban, it is established that the occurrence had taken place in the street and not in the Nohra of Omkar.
27. The next argument to the effect that the injuries on the persons of the accused having not been explained by the prosecution and, therefore, an adverse inference has to be drawn is also without any force. Injuries of accused Hari Ram, Nahar Singh and Dharamvir were examined by Dr. Poddar PW. 2. Ram Partap PW 5 and Daya Ram P.W. 6 have stated in unambiguous terms that they had inflicted injuries on the persons of the accused in the exercise of the right of their self defence. From the evidence of this doctor it is evident that P Ws Ram Partap and Daya Ram had 8 and 4 injuries respectively on their persons whereas Ram Niwas had a head injury. On the other hand, accused Nahar Singh and Dharamvir had three injuries each whereas accused Hari Ram had two. It is thus clear that there were 12 injuries in all on the persons of the PWs besides one injury of Ram Niwas. When the complainant party received more injuries besides the death of one of them, it cannot be said that they were aggressors. From the scrutiny of evidence on record and circumstances of this case, it is established that the accused had opened an attack in the street in front of Nohra of Ram Partap where he was peacefully enjoying Huka. After receipt of pharsi blow at the hand of Dharamvir accused, Ram Niwas had fallen and then the PWs Daya Ram and Ram Partap had inflicted injuries on the persons of the accused in exercise of the right of their self defence.
28. The question then arises whether the accused intended to kill the deceased and to cause grievous hurt on the persons of Ram Partap and Daya Ram or it was a case of sudden fight. In this regard, it is noteworthy that both the parties are collaterals. There was no previous enmity between them. It was only about ten days prior to the occurrence that a jhota driven out by Ram Niwas entered in the field of Hari Ram, whereupon Surender accused had rebuked and abused Ram Niwas and when in spite of his protest Surender accused did not desist from abusing him Ram Niwas gave a slap to him. The matter was put off by Ram Partap who admonished his son Ram Niwas and pacified Surender. Due to such trifling matter the collaterals are not expected to entertain grudge, ill-will or animosity between them so as to liquidate one of them. House of the complainant party and the Nohra of the accused abuted the lane and it was natural that they crossed each other in the lane. It was a sudden fight without premeditation and in the heat of passion, Dharamvir accused had dealt only one pharsi blow on the person of Ram Niwas. He did not repeat the blow. He had suffered three injuries in this occurrence. He did not act in a cruel and unusual manner and, therefore, his case would certainly be covered under exception 4 of Section 300, IPC. and he will be guilty of culpable homicide not amounting to murder punishable under Section 304, Part-I, IPC. As far as the other three accused are concerned, they had without premeditation in the heat of passion in a sudden quarrel, inflicted injuries on the persons of Ram Partap and Daya Ram. Nahar Singh and Hari Ram accused had also suffered injuries in this occurrence. Therefore, it cannot be said that they had voluntarily caused bodily injuries to the PWs. Hence they deserve to be acquitted.
29. In view of the above conclusion, the conviction of accused Dharamvir is altered from Section 302, IPC to Section 304 (Part-I), IPC. His conviction and sentence under Section 302, IPC as ordered by the learned trial Court are set-aside. He is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 3000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year under Section 304, Part-I, IPC. On recovery of the fine of Rs. 3000/-, an amount of Rs. 2500/- will be paid to the heirs of the deceased Ram Niwas after notice to them. Accused-appellant Surender, Nahar Singh and Hari Ram are acquitted of the charge by accepting their appeal while the appeal failed qua Dharamvir appellant stands partly accepted to the extent referred above.
30. Consequently, in view of the above findings there is no merit in the revision petition. It is ordered to be dismissed.