Punjab-Haryana High Court
Cra-D 467-Db Of 2008 vs State Of Haryana on 18 January, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. CRA-D 467-DB of 2008
Date of decision: 18.01.2012
Inder Pal and others
.....Appellants
Versus
State of Haryana
......Respondent
2. CRA-D 536-DB of 2008
Paramjit Singh @ Tanny and others
.....Appellants
Versus
State of Haryana
......Respondent
3. CRA-D 586-DB of 2008
Somi Ram
.....Appellant
Versus
State of Haryana
......Respondent
4. CRM No. A-437-MA of 2008
Mohinder Singh
.....Applicant
CRA-D 467-DB of 2008 2
Versus
Pappu @ Jangir Singh and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.H.S.Gill, Senior Advocate with
Mr.Vivek Goel, Advocate
Mr.P.S.Jammu, Advocate
Mr.Sukhdeep Parmar, Advocate
Mr.Pardeep Singh Poonia, Addl.A.G. Haryana
Mr.Ashwani Bhardwaj, Advocate for complainant
Jasbir Singh, J.
This order will dispose of three Criminal Appeal bearing Nos. CRA No.D-467-DB of 2008, CRA No.D-536-DB of 2008, CRA No.D-586
-DB of 2008 and CRM No.A-437-MA of 2008. To dictate order, facts are being mentioned from CRA No.467-DB of 2008.
In FIR No.236 dated 31.7.2004, besides the eight appellants in the above three appeals, 11 more persons were arrayed as accused. One died during trial and ten were acquitted vide the impugned judgment dated 14.6.2008. Vide the above judgment and order, all the eight accused, in the above three appeals were convicted for committing murder of Bassi Bai and Sadhu Ram on 31.7.2004. They were further convicted for an attempt to cause death of 13 persons, including PW12 and PW13, namely, Shera Ram and Birda Ram by causing them fire arm injuries. All the appellants were convicted for commission of offences under Sections 148, 302, 307 read CRA-D 467-DB of 2008 3 with Section 149 IPC. Appellant Paramjit Singh @ Tanny and Soni Ram were further convicted for violation of the provisions of Section 25 of the Arms Act, 1959, for having in their possession, without licence, one country made pistol of .315 bore and one live cartridge each. Appellant Shingara Ram was also convicted under Section 25 of the Arms Act for having in his possession one country made pistol of .12 bore. Appellant Malkiat Singh was acquitted of charge framed against him under the Arms Act.
Vide order of the even date, following sentence was awarded to them:-
u/s Sentence 148 IPC All the above named eight convicts are sentenced to undergo R.I. for a period of one year each 307/149 All the above named eight convicts are sentenced IPC to undergo R.I., for a period of seven years and to pay a fine of Rs.5000/- each and in default of fine to undergo further SI for one year each.
302/149 All the above named eight convicts are sentenced IPC to undergo R.I. for life and to pay a fine of Rs.5000/- each and in default of fine, to undergo further SI for one year each.
25 Arms Accused Paramjit alias Tanny, Shingara and Somi Act to undergo R.I. for a period of three years and to pay a fine of Rs.2000/- each and in default of fine, to undergo further S.I. for six months each.
All the substantive sentences were ordered to run concurrently. Period spent by the convicts in custody during investigation and trial was ordered to be set off from their substantive sentence.
It is necessary to mention here that at the time of alleged occurrence, from the party of the appellant-accused 13 persons received fire arm injuries. Mohinder Singh filed a Criminal Complaint against the injured members of the complainant party and others (in total 22 persons). CRA-D 467-DB of 2008 4 That complaint was dismissed by the trial Court vide judgment dated 14.6.2008. Above Mohinder Singh has filed CRM No.A-437-MA of 2008, seeking leave to file an appeal against the impugned judgment.
It was allegation against the appellants and 11 others that they on 31.7.2004, had formed an unlawfull assembly and with a common object, committed rioting and also murder of Bassi Bai and Sadhu Ram and caused fire arm and other injuries to 13 more persons from the complainant side. They were alleged to have been armed with unlicensed fire arms.
Process of law was set in motion on a statement (Ex.PVV) made by PW12 Shera Ram (injured) at 5.30 p.m. on 31.7.2004. His statement was recorded by SI Jagdish Kumar (PW20) in Civil Hospital at Sirsa. On the basis of above statement, an FIR (Ex.PVV/2) was recorded against the appellants and 11 others at 6.30 p.m. in Police station Rania. Special report reached the concerned Magistrate at 9.30 p.m. at Sirsa on 31.7.2004.
It is necessary to mention here that regarding the occurrence in which injuries were received by both the parties, the police had already recorded a DDR at 11.40 a.m. in above police station. As per case of the prosecution, Bassi Bai died at the spot, whereas Sadhu Ram died on his way to the hospital.
The trial Judge has noted the following facts regarding case of the prosecution:-
CRA-D 467-DB of 2008 5
"that in the afternoon of 31.7.2004, SI/SHO Jagdish Kumar alongwith other police officials was present in the Courts at Sirsa in connection with official work, when he received a telephonic message from ASI Jagdish Rai regarding receipt of a ruqa in the police-station, Rania about the death of Bassi Bai wife of Inder Ram, Bajigar, resident of Rania, with fire arm injuries and further that numerous persons had received fire arm injuries, who had already been referred to Government Hospital, Sirsa for treatment. On receipt of this information, the SI/SHO reached Government Hospital, Sirsa alongwith other police officials. ASI Jagdish Rai, alongwith other police officials, was already present in the hospital. As per opinion given by the doctor, injured Dana Ram was found unfit to make the statement. Other injured were opined to be fit to make the statement. Statement Ex.PVV of injured Shera Ram son of Bhola Ram, caste Bajigar, resident of Ward No.1, Rania, aged 60 years was recorded, which reads as below:-
"I am resident of above given address. I am labourer. Our Bajigar community possesses a Mela ground in Rania. This land is located on Government Hospital road. The government of Haryana has sanctioned a grant through Municipal Committee for construction of boundary walls, filling of earth and construction of rooms. After completion of construction of boundary walls, work of filling earth was going on at the site. Another group of Bajigar community used to create CRA-D 467-DB of 2008 6 obstruction in completion of development work. The prominent persons of other group are Malkiat Ram, Mahinder Ram, Bhajna Ram, Pappi, Gurdev sons of Khajana Ram, Roop Ram son of Inder Ram, Tanny son of Mahinder Ram and Palla Ram son of Shri Inder Ram, residents of Rania. As they had assaulted us, so, we had moved an application before the police. The police had challaned them about 10/12 days ago. Today, persons of our group namely Darshan Ram son of Pera Ram, Dana Ram son of Chuni Ram, Om Parkash son of Puran Ram, Balwinder son of Jag Ram, Jalla Ram son of Sunder Ram, Raju son of Shingara Ram, caste Bajigar, residents of Rania were levelling the earth in the ground. Apart from them, Sadhu Ram son of Jammu Ram, Bassi Bai wife of Inder Ram, Jaswant son of Lachhman Ram, Gurdeep son of Dara Ram, Lala Ram son of Inder Ram, Shera Ram son of Burra Ram, Gurdev son of Manga Ram, Krishan Ram son of Palla Ram, Amreek Singh son of Hakam Ram and myself were supervising the ongoing work. At about 11.00 A.M. Malkiat Ram son of Khajan Ram armed with a gun, Bhajna Ram son of Khajan armed with a 12 bore gun, Somi Ram son of Gurmukh Ram armed with a pistol, Dari Ram son of Burra Ram armed with a pistol, Roli Ram son of Mokha Ram armed with sword, Inder Ram son of Sona Ram armed with a pistol, Tanny son of Mahinder Ram armed with a pistol, CRA-D 467-DB of 2008 7 Darshan Ram son of Jhana Ram armed with a gun and Shingara Ram son of Pallu Ram armed with a pistol were present on the roof of the house of Makhan Ram son of Punnu Ram, Bajigar, resident of Rania. The persons armed with arms started indiscriminate firing on the persons who were working on the plot. Apart from these persons, Soni Ram son of Bura Ram armed with Kapa, Noor Ram son of Bura Ram armed with a Gandasi, Mithu Ram son of Punnu Ram armed with sword, Ginder Ram son of Pallu Ram armed with sword, Malla Ram son of Bahadar Ram armed with Gandasi, Babbi Ram son of Billu Ram armed with sword, Pamma Ram son of Babu Ram armed with Kappa, Roop Ram son of Inder Ram armed with Kappa, Desha Ram son of Mahinder Ram armed with sword and Kulle Ram son of Gurmukh Ram armed with pistol were present near the Samadh of Mokha Ram. They all opened second assault on us. First of all, Malkiat Singh fired a gun shot from the gun possessed by him, which hit Bassi Bai wife of Inder Ram, who fell down and died at the spot. Then the persons standing on the roof of the house of Makhan Ram started indiscriminate firing which resulted injuries to Sadhu Ram and others. We all persons received fire arm injuries. There was hue and cry. People were crying and running here and there in their defence. The accused who possessed lathis and Gandasis etc., caused CRA-D 467-DB of 2008 8 injuries to the running persons. On hearing gun shot noise, numerous persons gathered there. On seeing them, all the accused persons escaped from the spot alongwith their respective weapons. We all the injured persons were shifted by our persons to Government Hospital, Rania. The doctor of Government Hospital, Rania referred us to government Hospital, Sirsa. When we reached near Sirsa, Sadhu Ram son of Jammu Ram, Bajigar, resident of Rania expired due to fire arm injuries. Dead body of Bassi Bai wife of Inder Ram, Bajigar, resident of Rania was brought by us to Government Hospital, Sirsa. Dead bodies of Sadhu Ram and Bassi Bai are kept in dead-house, Government Hospital, Sirsa. We were given first aid by the doctor on reaching Government Hospital, Sirsa. Three/four persons belonging to our group have been taken by the doctor from Rania with him because the number of injured persons reaching Sirsa was high. During this occurrence, probably persons belonging to other party also received fire arm injuries. Today i.e. on 31.7.2004, I have got my statement recorded in Government Hospital, Sirsa. I have heard my statement, which is correct.
3. The Sub Inspector made his endorsement Ex.PVV/1 on the statement and sent statement Ex.PVV to the Police station for registration of a case, on the basis of which formal FIR CRA-D 467-DB of 2008 9 Ex.PVV/2 was recorded under Sections 302, 307, 148, 149, 323 and 324 of Indian Penal Code in P.S. Rania."
On instructions issued by Inspector Jagdish Kumar (PW20), inquest proceedings on the dead bodies of Bassi Bai and Sadhu Ram were conducted by ASI Jagidsh Rai (PW18). The bodies were sent for post- mortem examination. Dr.P.L.Verma (PW9) conducted the post-mortem on dead body of Bassi Bai on 31.7.2004 at 6.15 p.m. This witness found the following injuries on the person of the deceased:
"A ¾ x ¾ cms lacerated wound with inverted margins placed on left side back of the chest, 6 cms from midline at the level of lower angle of scapula. Blunt probe went upwards latterly to the left and front of the chest where it was continuous with another wound with everted margins measuring ¾ x ¾ cms placed on left breast 1.5 cms above the areolar margin."
On dissection, fracture of 8th rib on back and 4th rib on front was found. Lung and heart were found injured. Cause of death was declared as shock and hemorrhage as a result of fire arm injury, which was ante-mortem in nature and sufficient to cause death in ordinary course.
Dr.G.S. Somani (PW8) conducted post-mortem on the dead body of Sadhu Ram on 31.7.2004 at 6.50 p.m. This witness found the following injuries on the person of the deceased:-
"There was a lacerated wound measuring 0.5 cm x 0.5 cm with inverted margins on the front of left side of chest, placed 2 cms below and medial to left nipple on dissection the blunt prob goes directly backward. On opening the chest cavity effusion of CRA-D 467-DB of 2008 10 blood was present in subcutaneous tissues. There was a punctured wound in the anterior wall of the heart extending into the left ventrical and there was blood in the pericardial cavity. The pellet lies impacted in the posterior wall of the left ventrical."
Cause of death was declared as a result of shock and hemorrhage on account of fire arm injury, which was ante-mortem in nature and sufficient to cause death in ordinary course.
As per case of the prosecution, at the time of alleged occurrence, 13 more persons from the complainant side got injuries. Dr.Jagdip Aggarwal (PW4) medico-legally examined the following persons from the party of the complainant on 31.7.2004:-
"Birla son of Baksha Ram: There was a lacerated wound of 1 x 1 cm with collar of abrasion and burnt margins were present and bleeding was also present.
(a) Over the lower chest 8th intercostal space mid clavicular line.
(b) Lower chest over tenth rib, later to sternam.
(c) Lower chest over 10th rib, mid clavicular line.
(d) Anterior aspect iliac crest.
(e) Posterior aspect iliac crest.
(f) Mid tibial area middle 1/3rd.CRA-D 467-DB of 2008 11
2. There were five lacerated wounds of 1 x 1 cm with collar of abrasion and burnt margin and bleeding was present.
(a) Over left thigh upper 1/3rd (two lacerated wounds).
(b) Upper 1/3rd over thigh and posterior gluteal region
(c) Upper 1/3rd anterior laterally guluteal region
(d) Lower 1/3rd posterior laterally gluteal region.
3. There was a lacerated wound of ½ x ½ cm with burnt margins over lower 1/3rd leg, left lateral aspect and superior aspect of left lateral maleoluss.
4. There was lacerated wound of ½ x ½ cm with burnt margins over left lateral maleoluss.
Raju son of Shingara
1. There were five lacerated wounds of ½ x ½ cm with bleeding positive, collar of abrasion and burnt margins were present, over
(a) Right trapgious area
(b) Right infraclavicular area
(c) Right triceparea laterally
(d) Right fore-arm upper 1/3rd laterally
(e) Left thigh anterior and middle 1/3rd CRA-D 467-DB of 2008 12
2. There was a lacerated wound of 2 x ½ cm over chin with burnt margins, obliquely placed."
Krishan Kumar son of Pala Ram There was a lacerated wound of ½ x ½ cm over mid tibia area middle 1/3rd on both sides of legs with coller of abrasion and burnt margins were present.
Jaswant son of Laxman Ram
1. There were five lacerated wounds of 1 x 1 cm over the below areas with blood ooz positive, coller of abrasion were present with burnt skin margins.
(a) Middle epigastriums
(b) Left sub costal area
(c) Left iliac area
(d) Left bicep area enterially
(e) Left thigh upper 1/3rd Shera Ram son of Bhola Ram There were four lacerated wounds of 1x 1 cm each over the below mentioned areas with coller of abrasion and burnt margins were present alongwith blood ooze positive.
(a) Midline nasal bridge with left side ye swollen.
(b) Right elbow posteriorly
CRA-D 467-DB of 2008 13
(c) Left elbow posteriorly infra joint area
(d) Right iliac area of abdomen laterally.
Bhira Ram son of Jammu
1. A lacerated wound of 0.5 x 0.5 cm was present with burnt margins over
(a) Left mid line anterior tibial area middle 1/3rd
(b) Left leg upper 1/3rd of thigh posteriorly.
Ranjit son of Shingara Ram There were lacerated wounds of 0.5 x 0.5 cm each with burnt margins over
(a) Right side chest parasternal area 4th to 5th intercostal space.
(b) Right side lower leg middle 1/3rd laterally." At the time of cross-examination, this witness admitted that on 1.8.2004, he also examined injured from the accused side and noticed the following injuries:-
Jiya Ram There were five lacerated wounds 1 x 1 cm each with burnt margin, circular in shape and blood ooz positive over the below mentioned area;
(a) Superior parital area of scalp near midline CRA-D 467-DB of 2008 14
(b) epigastric area of abdomen
(c) left trapizious area
(d) right inguinal scrotal area of thigh middially
(e) left thigh upper 1/3rd interiorily Mukhtiaro wife of Shingara Ram There was a lacerated wound of 1 x 1 cm with burnt margins with coller of abrasion over right tibial area anterior and upper 1/3rd right lower leg.
Kuldeep son of Lal Ram There were two lacerated wounds of 1 x 1 cm with burnt margins over
(a) right side anterior axillary fold
(b) left thigh anteriorly Manjeet son of Pappi There was a lacerated wound of 0.5 x 0.5 cm over right side neck, super clavicular area with burnt margins and coller of abrasion was present."
Similarly, on 1.8.2004, following persons from the side of appellant-accused were medico-legally examined by Dr.Sushila (PW6):-
"Soni Ram son of Munda Ram CRA-D 467-DB of 2008 15 There were lacerated wound of 1 x 1 cm with burnt margins and blood clot was positive over
(a) left fore-arm medially
(b) upper 1/3rd of left leg anterior laterally
(c) upper 1/3rd of right thigh medially Bimla daughter of Mahender Singh There were lacerated wounds in size 1 x 1 cm each with burnt margins and blood clot positive over
(a) Neck anterior aspect
(b) left side of chest below clavical Ram Partap son of Rajesh Kumar A lacerated wound of size 1 x 1 cm was present with burnt surface and blood clot was present over medial surface of right thigh.
Khato Bai wife of Dari Ram
1. A lacerated wound of size 1 x 1 cm was present with burnt margin and collar of abrasion positive over left forearm upper 1/3rd laterally
2. Bruise of 2 x 2 cm over left iliac area laterally of abdomen."
Shhela wife of Joopa Ram CRA-D 467-DB of 2008 16
1. A lacerated wound of 1 x 1 cm was present with bruise underlying of 5 x 3 cm with tattoing positive collar of abrasion positive over right subcostal area near midline
2. There were abrasions of 2 x 2.5 cm over lower part of apigastion midline
3. There were 1 x 1 cm laceration with burnt margins over
(a) left thumb matcarpal area anterior laterally
(b) upper 1/3rd right leg laterally
(c) Left leg lower 1/3rd laterally
(d) right leg lower 1/3rd laterally
(e) Over the right thigh posterior laterally middle 1/3rd
(f) over right mandibular area Dano Bai wife of Kunu Ram
1. Lacerated wound of 1 x 1 cm with burnt margin was present over
(a) left upper arm laterally
(b) the left thigh lower 1/3rd posteriorly
(c) Left brest just lateral to midline Piari Bai wife of Chhinder Ram
1. There was 1 x 1 cm laceration right parasternal area with burnt margins over 4th intercostal space CRA-D 467-DB of 2008 17
2. A lacerated wound of 0.5 x 0.5 cm over lower lip
3. There was 2 x 1 cm lacerated wound with burnt margin over middle 1/3rd lower leg posteriorly Bhooro Bai wife of Ginder Singh
1. There was 0.5 x 0.5 cm lacerated wound with burnt margin over
(a) left little finger, metacarpal area laterally
(b) left lower deltoid area of left upper arm
(c) Left temporal area
2. Bruise of 3 x 5 cm with tattoing positive homogenously over left medial deltorid area.
Soma son of Joopa Ram A lacerated wound of size 4 x 0.5 cm was present over mid parital area of scalp."
PW5 Dr.Ashok Gupta on 31.7.2004, radiologically examined Dana Ram from the complainant side and found fracture of 4th and 6th rib. He also examined Darshan, Om Parkash , Jaila Ram, Chhanku, Raju, Jaswant, Krishan, Ranjit, Bhira, Shera, Birla, Bansi Lal on different dates, to identify the existence of any pellet in their body. This witness also radiologiclaly examined persons from the appellant/accused side on 2.8.2004, namely, Piara Bai, Bhuri Bai, Ginder, Sheela Bai, Khato Bai, Ram Partap, Kartaro Bai, Kuldeep, Manjeet, Jiya Ram, Rulia Ram etc. to know existence of any pellet in the body of the injured. CRA-D 467-DB of 2008 18
Following injured from the complainant side were medico- legally examined by Dr.Sanjay (PW10) on 31.7.2004:-
"Bansi Lal son of Kartara Ram There was a lacerated wound of size 1 cm x 1 cm over deltoid area of right arm with color of abrasion. Fresh bleeding was present.
2. There was a lacerated wound of size 1 cm x 1 cm with burnt margin in the collar of abrasion over right anterior axilliary fold Shantu son of Sardar Ram
1. There was a lacerated wound of size 1 cm x 1 cm and there was collar of abrasion with blunt margins over right suprascapular area.
2. There was a lacerated wound of size 2 cm x 1 cm over right infraclavicular area of chest with blood oozing out. Jaila Ram son of Sunder Ram
1. There was a lacerated wound of 1 cm x 1 cm over suprasternal notch with burnt margins with collar of abrasion present."
Om Parkash son of Puran Ram
1. There was a lacerated wound of size 0.5 cm x 0.5 cm over extension aspect of left hand with burnt margins with oozing blood.
CRA-D 467-DB of 2008 19
2. There was a lacerated wound of 0.5 cm x 0.5 cm over left frontal area of scalp with burnt margins and the blood was oozing.
Darshan son of Peda Ram
1. There was a lacerated wound of 1 cm x 1cm and there was a collar of abrasion with burnt inverted margins present over the following sites of the body:-
a. Right deltoid area of arm
b. Extension aspect of upper 1/3rd of right fore-arm
c. Extension aspect of lower 1/3rd of right fore-arm
d. Right posterior axilliary fold
e. Left lumber area of back
f. Right lumber area of back
g. Mid-thoracic area of spine
h. Left scapular area
i. Left posterior axilliary fold
j. Right gluteal area
Dana son of Chunni Ram
1. There was a lacerated wound of size 2.5 x 1 cm over midsternal area anterior surface, collar of abrasion present. CRA-D 467-DB of 2008 20 Fresh oozing of blood was present. Query entry wound on margins area inverted and burnt.
2. There was a lacerated wound of 1 cm x 1 cm over left axilliary area of chest lateral and anterior axilliary fold with margin inverted and burnt."
As per medical evidence on record, all the injuries to the injured, on both the sides (except one or two in the case of the complainant side) were the fire arm injuries.
Dr.Ashish Ahuja (PW1) has removed one pellet from the left eye of Shera Ram (PW12).
Dr.Jagdip Aggarwal (PW4) has specifically stated that on 31.7.2004 at about 12.00 noon, about 24 injured persons came in CHC Rania. One person was brought dead and one was seriously injured (Sadhu Ram). It is specifically stated by this witness that injured Sadhu Ram and 24 other injured, accompanied him to Civil Hospital at Sirsa, where Sadhu Ram was declared brought dead. It is also necessary to mention here that all the doctors have specifically opined that injuries suffered by members of the accused party were also of the same duration, at which, injuries were suffered by the members of the complainant party. Dr.Sushila (PW6), who was posted in CHC at Rania, has stated that on 31.7.2004 she has sent a Ruqa (Ex.PAA) to the police station Rania, intimating that about 16 injured persons have come to the hospital.
In the meantime, investigation was taken up by Inspector Jagdish Kumar (PW20). After getting opinion from the doctor, he recorded CRA-D 467-DB of 2008 21 statement (Ex.PVV) of Shera Ram (PW12), which was made basis of FIR recorded against the appellants-accused and others. The investigating officer then went to the place of occurrence. On identification made by Jagir Ram @ Papu, he took into his possession two empty cartridges from the roof of a Chobara and two empty cartridges from the court-yard of a house. He also prepared rough site plan (Ex.PKKK) and photographs of the place of occurrence were also taken. He arrested some of the accused. On interrogation and on disclosure statement made by Naru Ram and Rup Ram a Gandasi and a Kapa were recovered. Malkiat Singh (appellant) got recovered a gun. Ruli Ram got recovered a sword. Malla Ram accused got recovered a gandasi. Shingara accused got recovered a country made pistol (.12 bore).
Investigation was taken over from the above witness by Swatanter Kumar Inspector CIA (PW21), who arrested rest of the accused. Their disclosure statements led to recovery of one kappa, sword, a country made pistol of .315 bore. One country made pistol was recovered from Inder Pal appellant-accused. Paramjit Singh @ Tanny also got recovered one live cartridge of .315 bore pistol on 4.8.2004. Accused Ginder was arrested on 5.8.2004. Disclosure statement made by him led to the recovery of a sword. Accused Ranjit @ Pappa was arrested on 6.8.2004. His disclosure statement led to recovery of one Kapa. Babbi Ram was arrested, he produced one sword. Somi Ram and Rakesh Kumar were arrested on 7.8.2004. Disclosure statements made by them resulted into recovery of country made pistols.
Investigation was again taken over by Inspector Jagdish Kumar (PW20), who recorded statements of the injured witnesses. On completion CRA-D 467-DB of 2008 22 of other formalities, final report was put in Court for trial. Case was committed to the Court of competent jurisdiction for adjudication. Copies of the documents were supplied to the accused as per provisions of Section 207 Cr.P.C. Appellants and their co-accused were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 22 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statements of the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. Some of the accused took up a stand that the prosecution story is fabricated and they have been involved at the instance of MLA of the area. Others took up a stand that they have been involved in this case because of existing enmity between the parties. They also led evidence in defence.
The trial Court on appraisal of evidence, led by both the parties, found the eight appellants in all the three appeals guilty, they were convicted and sentenced as found mentioned in earlier part of this order. Their co-accused were acquitted. Private complaint filed by Mohinder Singh was also dismissed. Hence, these appeals.
Counsel for the appellants Mr.H.S.Gill, Advocate after taking us through the medical evidence, the ocular testimony of the alleged eye witnesses, deposition made by the investigating officer and other prosecution witnesses, argued that involvement of the appellants in this case, appears to be false. An attempt has been made by the prosecution to suppress genesis of occurrence. Injuries to 13 persons from the side of the accused party, which were of the same duration, were not explained. By CRA-D 467-DB of 2008 23 making reference to the site plan on record and story projected by the prosecution, counsel argued that the injuries to the deceased Bassi Bai and Sadhu Ram were not possible in the manner, in which, those were alleged to have been caused by the appellants. It was specific case of PW12 and PW13 that fatal shot upon Bassi Bai was fired by Malkiat Ram appellant, by a .12 bore gun. Even the trial Judge has not believed that version, taking note of the medical evidence on record, it was opined that the shot might have been fired from a pistol of .315 bore. Counsel argued that in the alternative, it is a case of free fight between the parties, which had occurred because of dispute to maintain a common place. It is stated that most of the appellants have undergone more than five years of actual sentence and taking note of their age, it is stated that leniency be shown to them. It is prayed that appeals be allowed and conviction and sentence awarded to the appellant-accused be set aside Prayer made has vehemently been opposed by Mr.Pardeep Singh Poonia, Addl.A.G. Haryana, counsel for the State and Mr.Ashwani Bhardwaj, who has put in appearance for the complainant. It is stated by them that it was a case of eye witness account. Despite lengthy cross examination, testimony of PW12 and P13 was not shattered. The injuries received by the members of the accused party were simple in nature and may be self suffered. Most of those injured were examined on 1.8.2004. It was further stated that fatal shots were fired by Malkiat Singh and others from the roof top and court yard of an adjoining house to the place of occurrence, which resulted into death of Bassi Bai and Sadhu Ram and injuries were received by the others. He prayed that evidence led by the prosecution inspires confidence, in view of that, appeals be dismissed. CRA-D 467-DB of 2008 24
It is necessary to mention here that at the time of arguments, Mr.Gill has not pressed CRM No.A-437-MA of 2008.
After hearing counsel for the parties, we feel that it is a case where an attempt has been made by the prosecution to suppress genesis of occurrence. It is not in dispute that Civil Hospital and the police station at Rania are situated in the near vicinity of the place of occurrence. As per statement made by Dr.Sushila (PW6), she has sent an intimation regarding bringing dead body of Bassi Bai in the hospital at 11.30 p.m. on 31.7.2004. However, there is nothing on record to show as to why police failed to take any action immediately thereafter. Civil hospital at Rania and the police station are situated nearby to each other. This witness has further stated that on the above date, she has intimated the police regarding arrival of 16 injured persons in the hospital with fire arm injuries. Dr.Jagdip Aggarwal (PW4) has also stated that on 31.7.2004 at about 12.00 p.m., 25 injured persons came to CHC Rania, one was seriously injured. Only two doctors were available, it was not possible to handle all the injured and taking note of serious condition of one of them, all the 25 were shifted to Civil Hospital at Sirsa in a vehicle. PW4 and PW6 have examined injured from the side of the accused and also from the side of the complainant on 31.7.2004 and 1.8.2004. Injuries to members of both sides are of the same duration.
For the injuries, received by 13 persons from the side of the accused, in the FIR, which was recorded on a statement made by Shera Ram (PW12), it was only stated that at the time of occurrence, probably, persons belonging to other party also received fire arm injuries. CRA-D 467-DB of 2008 25
In the witness box, PW12 Shera Ram has failed to disclose above fact, rather, it was denied that anybody from the side of the accused has suffered any injury at the time of alleged occurrence. To the same effect is the statement made by Birla Ram injured (PW13). He has specifically stated that he does not know, whether any of the persons, who had encircled him, had received any gunshot injury or not. He has further denied that the persons from the side of the accused, namely, Bharu Bai, Sheela Bai etc. had received any injury at the time of occurrence. Both PW12 and PW13 have outrightly denied that any injured from the side of the accused was shifted to Sirsa with them. Their testimony runs contrary to the statements made by Dr.Sushila (PW6) and Dr.Jagdip Aggarwal (PW4), who have stated so in their testimony. By not giving any explanation for the injuries received by 13 persons from the side of the accused party, an attempt has been made to suppress genesis of occurrence by the prosecution.
As per case of the prosecution, dispute is with regard to maintenance of six kanals of land, for development of which, funds were sanctioned by the Government. The complainant party was doing earth leveling work, in the said land when occurrence had taken place. In FIR, it is stated that after completion of construction of the boundary wall, surrounding that land, work of earth filling was going on, the accused party including Malkiat Singh (appellant) and others armed with fire arm weapons, came on the roof of the house of Makhan Ram and then started indiscriminate firing upon the persons, who were working in the land, in dispute. It was further stated that some of the co-accused armed with sharp edge deadly weapons, who were present near to the Smad of Mokha Ram had also opened assault on the complainant party. It is specifically stated CRA-D 467-DB of 2008 26 that fatal shot upon Bassi Bai was fired by Malkiat Singh from .12 bore gun. In the indiscriminate firing from the roof top of Makhan Ram's house, many persons were injured.
Investigating officer has prepared a scaled site plan (Ex.PZZ). We have seen the said site plan. A careful perusal thereof makes case of the prosecution very doubtful. At the place where Bassi Bai and Sadhu Ram received fire arm injuries, house of Makhan Ram, may be at a distance of about more than 100 feet. The place from where firing was done, has been shown at point C in the site plan. From point D, two empties were recovered. From that place, in between, there are other rooms, then boundary wall (4'-6") of the house of Paramjit Singh @ Tanny and thereafter, comes a street in which injuries were received by both the deceased. As per our opinion, situation at the spot was such that receipt of injuries in firing from roof top of the house of Makhan Ram was not possible. Injured on the complainant side stated to have received the injuries in the plot. The boundary wall of the disputed plot (3 feet high) has been shown as mark A. From the house of Makhan Singh, in between an open court yard more than 30 feet is situated and thereafter comes two rooms of Makhan 's house and then street and the plot in dispute. Receipt of injuries by firing from that place also appears to be doubtful.
Not only as above, it is case of the prosecution that injuries were caused to Bassi Bai by Malkiat Singh from .12 bore gun. At the time of post-mortem examination, Dr.P.L.Verma (PW9) has found entry and exist wound to the extent of ¾ cm x ¾ cm. This injury appears to have been caused by a bullet and not a pellet. Further, direction of the injuries was from below to upwards. As per case of the prosecution, the assailants were CRA-D 467-DB of 2008 27 standing at a height of ten feet at the roof top. If that is so, the direction of injury of Bassi Bai should have been from upward to downward. This witness has admitted that dimension of entry and exit wound on the person of Bassi Bai was the same.
Post-mortem on the dead body of Sadhu Ram was conducted by Dr.G.S.Somani (PW8). As per injury report, one wound going straight was found on the dead body of Sadhu Ram. In his cross-examination, this witness has stated as under:-
"It is correct that if the assailant is standing on 10 feet higher padenstal to that of the victim in that eventuality the direction of the injury will be from upward to downward. Volunteered, this situation will arise on the distance between the assailants, the victim and their position. Generally if the victim and the assailants standing on the same level the direction of the injury by fire arm will be straight."
It is nobody's case that Sadhu Ram and the assailants came face to face. Paramjit Singh @ Tanny is shown to have fired shots from the courtyard of his house which has boundary wall upto 4'-6". He was also standing at a distant place shown at point E in the site plan. From that place, with boundary wall around the courtyard, it is not possible to cause injury to any of the victims.
Besides as above, both the parties have given version and counter version. Dispute has taken place regarding possession of a plot meant for common use of the community. It is stated by the accused party that on the fateful day, the complainant party was the aggressor and they had committed rioting and damaged their property. To the contrary, it is case of the complainant party that assault was committed by the accused party, in CRA-D 467-DB of 2008 28 the manner, as stated in the FIR. As per evidence on record, 13 persons each have received fire arm injuries, from both the sides, including ladies and children. It appears that there was a free fight between the parties, which resulted into death of Bassi Bai and Sadhu Ram and injuries to the others.
The alleged recoveries from the appellants-accused and others also do not inspire any confidence. Most of the recoveries were from the open and accessible place and there exists no independent corroboration to the same. Despite conducting medico-legal examination of the injured on the accused side, the investigating officer failed to conduct investigation as to how those injuries were caused. The delay in recording statements of the injured has also not been explained. Hospital and the police station are situated at nearby, at a small distance. PW4 and PW6 Dr. Dr.Jagdip Aggarwal and Dr.Sushila have categorically stated that on arrival of the injured and a dead body in the hospital, the police was intimated immediately. But no official reached the hospital till such time injured were shifted to civil hospital at Sirsa. DDR was recorded at 11.30 a.m. regarding firing incident, injured PW12 and PW13 were not unfit to make statement, however, their statements were recorded at 5.30 p.m. and then FIR was recorded at 6.30 p.m. For this delay, there exists no explanation on the case file.
The appellants have already suffered more than five years of imprisonment.
In view of facts mentioned above, all the three appeals are allowed, all the eight appellants in these appeals are acquitted of the charges CRA-D 467-DB of 2008 29 framed against them, their conviction and sentence is set aside. CRM No.A- 437-MA of 2008 is dismissing having not pressed.
(Jasbir Singh)
Judge
18.01.2012 (Sabina)
gk Judge