Punjab-Haryana High Court
Rohtash Son Of Ramdass And Ors. vs The State Of Haryana on 4 June, 1993
Equivalent citations: 1993CRILJ3303
JUDGMENT S.K. Jain, J.
1. Rohtash, Ram Mehrar, Ishwar, Maman, Ram Dhari and Anand, appellants herein, formed an unlawful assembly the common object whereof was to commit murder of Balwan Singh and cause bodily injuries to Shamsher and Jai Bhagwan, while armed with deadly weapons committed offences of rioting, murder of Balwan Singh and voluntarily caused hurt to Shamsher and Jai Bhagwan. Accused were charged and tried under Sections 148, 302/149 and 323/149, Indian Penal Code, by Additional Sessions Judge, Karnal, vide his order dated 29-5-1991. Rohtash and Ishwar accused were convicted under Section 302/34, IPC for their having committed the murder of Balwan Singh and were sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- each, and in default of payment of fine to further undergo rigorous imprisonment for six months each. They were also sentenced to undergo rigorous imprisonment for one year each under Section 148, Indian Penal Code as well as under Section 323 read with Section 149, IPC. However, all the substantive sentences of imprisonment were directed to run concurrently. Convicts Ram Mehar, Maman, Ram Dhari and Anand were also convicted to be released on probation under Section 4(1) of the Probation of Offenders Act. Besides each one of them was directed to pay Rs. 500/- as compensation to injured PWs Shamsher and Jai Bhagwan in equal shares.
2. Feeling aggrieved against their conviction and sentence, they have come up in appeal.
3. Facts of the prosecution case in brief are that Maman, Ram Dhari and Ishwar accused and Ram Dass are the sons of Mangal. Accused Rohtash and Ram Mehar are the sons of Ram Dass. Accused Anand is the son of Ram Dhari accused.
4. Shamsher PW 8 and Jai Bhagwan PW 10 are the sons of Hari Chand. Lakhi Ram is the brother of Hari Chand. Balwan Singh (deceased) was the son of Lakhi Ram. Both the parties are Bairagies and resided in village Dahar within the territorial limits of Police Station Sadar, Panipat. The brotherhood of Bairagies wanted to construct a Baithak on a piece of common land in the abadi of the village but the accused claimed ownership of that piece of land and did not allow them to raise the said construction. Rohtash accused filed a civil suit against Hari Chand father of Shamshar PW 8, Lakhi Ram and others and obtained ad interim injunction restraining the complainant party from constructing the said Baithak on the above said piece of land. The complainant party convened a Panchayat of Bairagi brotherhood one month prior to the occurrence. Under the pressure of the Panchayat accused party agreed to the construction of the Baithak on that land but they felt aggrieved so much so that they were no longer on speaking terms with the complainant party thereafter. The construction was started by the complainant party a week prior to the occurrence.
5. On the fateful day of December 23, 1988 at 5 p.m. a feast as organized on completion of the Baithak by the complainant party for which Halwa, vegetables and chapa-ties were being prepared. Lakhi Ram, Jai Bhagwan, Balwan and Shamsher PW were present there. Rohtash accused armed with Khudpala (digging implement of iron) reached there and remarked that Ladoos should have been prepared and distributed. At that point of time accused Ishwar armed with an iron bar, Maman with a Mussal, Ram Dhari, Ram Mehar and Anand with a Saria each arrived there. Balwan Singh (deceased) was sitting at the gate of the Baithak. On their arrival, accused Ishwar dealt an iron bar on the head of Balwan Singh who fell down on the street. Rohtash accused gave a khudpala blow on the right eye of Balwan. When Shamsher stepped forward to rescue Balwan, Anand accused gave a saria blow on the head of Shamsher PW and accused Ram Mehar a saria blow on his back. Shamsher PW fell down. Jai Bhagwan stepped forward to rescue Shamsher and Balwan whereupon Ram Dhari dealt a saria blow on his head whereas Maman accused hit his head with Mussal. Thereafter the accused made good their escape with their respective weapons.
6. Thereafter, Shamsher Jai Bhagwan and Balwan were removed to Civil Hospital, Panipat, by Lakhi Ram, where Dr. Rajiv Mittal medico-legally examined Balwan Singh at 6.25 p.m. on 23-12-1988 and found following injuries on his person:--
1. A diffused swelling 3x3 cm with tenderness on the right fronto parietal region of skull, Advised X-ray skull A.P. and lateral view and surgical opinion.
2. Swelling blackening and tenderness of right upper eye lid. Eyes specialist opinion was advised.
7. Injuries were kept under observation. The doctor opined that these injuries had been caused by blunt weapon within a duration of 24 hours.
8. On the same day, at 6.30 p.m. Dr. Mittal medico legally examined Shamsher and found following injuries on his person :--
1. A lacerated wound 1 cm x 0.3 cm. scalp deep on the right parietal region of the skull 8 cm. above the right ear pinna. Fresh bleeding was present.
2. Complained of pain in the back in the abodominal region but no mark of. external injury was seen.
9. The doctor opined that both the injuries were simple having been caused by blunt weapon within a duration of six hours.
10. Jai Bhagwan was examined by the said Doctor at 6.40 p.m. on the same day and following injuries were found on his person :--
1. A lacerated wound 2.7 cm x 0.5 cm scalp deep on the left parietal region of the skull 11 cm above the left parietal region of the skull 11 cm above the left ear pinna. Fresh bleeding was present.
2. A swelling 1.5 cm x 1.5 cm on the right side of the faee 2 cm lateral to the lateral end of right eye-brow.
3. Lacerated wound 3.0 cm x 0.7 cm scalp deep on the right occipito-parietal region 9 cm above the right ear pinna. Fresh blood was present.
11. The doctor opined that all the injuries were simple in nature having been caused by blunt weapon within a duration of six hours.
12. The doctor sent ruqa Ext. PM to Police Station Sadar, Panipat at 6.45 P.M. on 23-12-1988 informing the arrival of the aforesaid injured persons in the Civil Hospital.
13. On 24-12-1988 Dr. O.P. Gogia PW 7 had radiologically examined Balwan Singh and vide his report Ex.PD and X-ray films Ex.PD/1-2 had found fracture of the fronto-parietal region of his skull.
14. On receipt of ruqa Ex.PM at 7.15 P.M. on 23-12-1988 Assistant Sub-Inspector Dhan Singh PW 12 went to Civil Hispital, Panipat and moved application Ex.PB on which the doctor recorded his opinion Ex.PB/1 at 8.05 p.m. to the effect that Balwan Singh was unfit to make a statement. No relative of Balwan Singh was found in the hospital complex. On 24-12-1988 at 8.50 a.m. this Assistant Sub-Inspector moved application Ex. PA on which the doctor recorded his opinion Ex.PA/1 to the effect that Balwan Singh was still unfit to make a statement. The ASI then went to village Dahar and met Ishwar and Rohtash accused. They had injuries on their persons. Hence, the ASI got them medico legally examined in Civil Hospital Panipat on that day at 10.45 a.m. The ASI reached the hospital at 11.30 a.m. At 12.40 p.m. on that very day (24-12-1988) the ASI recorded the statement EX.DC/1 of Shamsher PW, made his endorsement Ex.DC/ 2 thereon and sent the same to Police Station, Panipat for registration of a case, on the basis whereof formal FIR Ex. DC/3 was registered by Sub Inspector Mehar Singh. Thereafter, ASI Dhan Singh accompanied Shamsher to the spot and prepared rough site plan Ex.PR/1. He then returned to the Civil Hospital reaching there at 3.05 p.m. In the meanwhile, Balwan Singh having succumbed to his injuries in the Civil Hospital, Panipat, the doctor sent ruqa Ex.PC to the Police Station to the effect that Balwan Singh had died at 2.30 p.m. on 24-12-1988. On receipt of the said ruqa, ASI Dhan Singh PW 12 prepared inquest report Ex.PG on the dead body of Balwan Singh. The post-mortem examination on the dead body of Balwan Singh was conducted by Dr. Mahesh Parkash PW 4 at 10 a.m. on 25-12-1988. He found following injuries on it :--
1. Diffuse swelling on the right side of head was present.
2. Bluish swelling of the right eye was present. Swelling of the eye ball was also present.
15. On exploration of skull, doctor found a big subcutaneous haemotoma on the right fronto parietal region. There was depressed fracture in beween the lateral angle of the right orbit and right ear. The pieces were embedded in the brain matter. The fracture was extending posteriorly above the right ear, linear in shape, 2.5 inch long. Fronto parietal suture was found opened on right, side.
16. There was big equidural haemotoma on the right side of the brain and duramatar was found lacerated at the side of depressed fracture. There was fracture of the orbital roof on right side also.
17. He further found the stomach contained liquid and swallowed blood. Small intestine contained chyme and gases whereas large intestine contained faecal matter and gases. There was small amount of urine in the bladder.
18. Blood was found on the right side of heart and left was found empty. All other organs were healthy.
19. The Autopsy Surgeon opined : (i) that the death was due to injury to the vital organs (brain) leading to haemorrhage and shock; (ii) that all the injuries were antemortem in nature and sufficient to cause death in ordinary course of nature; (iii) that the time which elapsed between injuries and death was within few days whereas time between death and post-mortem was four to forty eight hours; and (iv) that the injuries could have been caused by blunt weapon like lathi, iron bars and mussal. At the time of post-mortem examination Dr. Mahesh Parkash removed Kurta Ex.PI, payjama Ex.P2 and Banian Ex:P3 from the dead body and had delivered the same to the police in the shape of a sealed parcel.
20. Inspector Ashok Kumar PW 13 arrested accused Maman, Ram Dhari and Anand on 12-1-1989 at bus stand of village Dehar whereas accused Rohtash, Ram Me-har and Ishwer were arrested by him on 16-1-1989 in the area of village Israna on being produced by Dharam Pal Sarpanch of village Dahar. On completion of the investigation and other formalities, the accused were arraigned for trial on such like allegations.
21. Before the trial Court, in order to prove its above referred case, the prosecuton examined 12 witnesses Shamsher and Jai Bhagwan, eye-witnesses, supported the version of the prosecution.
22. The accused when examined by the trial Court under Section 313, Code of Criminal Procedure, came forward with the plea that the accused Maman, Ram Dhari Ram Mehar and Anand were not present on the date, time and place of occurrence. Lakhi Ram PW was not present at the spot. The matter regarding construction of the Baithak had been amicably settled. On the day of occurrence Rohtash and Ishwar had casually asked Shamsher and Balwan PWs to serve ladoos but they took ill of it and caused injuries to Rohtash and Ishwar accused. Balwan was armed with Khudpala. When he tried to hit Ishwer with it, he receded as a result whereof only the tip of the weapon had hit him. Rohtash and Ishwar acted in exercise of the right of private defence and caused one injury each to Shamsher and Balwan. Rohtash had picked up a Khalwa from the Buggi of Parkash, which was parked at the chowk in front of the Baithak. Meanwhile, Jai Bhagwan also reached there. He caused injuries to both of them, whereupon Ishwar who was carrying a lathi caused injuries to the two in his defence. There was absolutely no previous enmity and the occurrence had taken place all of a sudden. The accused had reported the matter to the police. Rohtash and Ishwar had been medico legally examined. Since Shamsher PW knew that they were aggressor, they did not report the matter first. Ishwar accused adopted the above statement of Rohtash.
23. The accused/appellants however, did not lead any evidence in defence despite being called upon to do so by the trial Court.
24. The trial Court believing the ocular evidence of Shamsher and Jai Bhagwan, eyewitnesses, coupled with the medical evidence convicted and sentenced the appellants as referred to above.
25. We have heard the learned counsel for the parties besides perusing the record.
26. Admittedly, the occurrence had taken place on the date, time and place as suggested by the prosecution. The version of the accused is that Maman, Ram Dhari, Ram Mehar and Anand accused had been falsely implicated as they were not present on the date, time and place of occurrence. The complainant party was the aggressors and the two accused Rohtash and Ishwar had inflicted injuries on the persons of the two PWs in the exercise of the right of private defence.
27. It is admitted on both ends that on one hand the accused are closed relatives whereas on the other hand Hari Chand PW11, Lakhi Ram, Shamsher PW 8, Jai Bhagwan PW 10 and Balwan Singh deceased are also close relatives: Such relationship has been discussed in the early part of this judgment. It is also admitted that both the parties belong to Bairagi sect.
28. Perusal of copies of order Ex.PBB dated 31-10-1988 Ex.PAA dated 14-12-1988 passed by Additional Senior Sub Judge Pani-pat in Civil Suit No. 727/88 shows that Rohtash had filed a suit for permanent injunction against Hari Chand, Lakhi Ram, Chet Ram and Badlu. An application under Order 39, Rules 1 and 2, CPC was also filed along with the suit seeking temporary injunction restraining the defendants from interfering in the possession of the plaintiff over the site in dispute. Ad interim relief of temporary injunction was granted ex parte but on 14-12-1988 on the basis of statement of Rohtash the said suit was dismissed as withdrawn. The above documentary evidence read with the evidence of PW 8 Shamsher, PW 10 Jai Bhagwan and Hari Chand PW 11 goes to show that there was some land belonging to Bairagi community, on which they wanted to construct a Baithak but the accused party did not like it as they claimed their ownership on that piece of land. Rohtash had filed a civil suit for permanent injunction but on the intervention of Panchayat of Bairagi brotherhood, the accused patty having agreed to the said construction under pressure, Rohtash had withdrawn the suit but they could not reconcile with the situation and entertained a grudge against the complainant party. The two eye-witnesses have consistently stated that on the day of occurrence at about 5.00 p.m. a feat of the Biradari had been arranged at the Baithak. Rohtash accused armed with a Khudpals arrived there and remarked that instead of Halwa Ladoos should have been prepared and distributed and in spite of the fact that the complainant party did not retort, the accused who had collected at the spot with their respective weapons by that time assault-ed Balwan Singh deceased and Shamsher and Jai Bhagwan injured PWs as mentioned in the earlier part of this judgment. These two witnesses were thoroughly cross-examined on behalf of the accued but their testimony could not be shattered.
29. Medical evidence fully corroborates the ocular version given by these two wit-nesses which is summarised in the following tables:
Sr.No. Accused Weapon of offence Victim Part of the body of victim Injury number Nature of Injury Medical Opinion
1.
Ishwar Iron Bar Balwan Head Injury No. 1 Dr, Mahesh Parkash PW 4
2. Rohtash Khudpala Balwan Right eye Injury No.2 Diffuse swelling on the right side of head was present. Bluished swelling of the right eye was present. Swelling of the eye ball was also present.
(i) that the cause of death was due to injury to the vital organ (brain) leading to heamorrage and shock.
On exploration of skill, Doctor found a big subcutaneous haemotoma on the right fronto parietal region. There was depressed fracture in between the lateral angle of the right orbit and right ear. The pieces were embeded in the brain matter. The fracture was extending posteriarly above the right ear, linear in shape. 2.5 inch long.
There was a big epidural haemotoma on the right side of the brain and duramatar was found lacerated at the side of depressed fractured. There was fracture of the orbital roof of right side also.
(ii) that all the injuries could be caused by blunt weapon like lathi, iron bar and muscle
(iii) that the possibility of both the injuries with one single blow could not be ruled out.
(iv) (Vide Ex. P* by Dr. Rajiv Mittal PWs that the possibility of the death of deceased Balwan due to injury No. I cannot be ruled out.
3. Anand Saria Shamsher Head Injury No. 1 Dr. Rajiv Mittal PWs
4. Ram Mehar Saria Shamsher Back A lacerated wound 1 cm*0.3 cm scalp deep on the right parital region of the skull 8 cm above the right ear pinna. Fresh bleeding was present.
Both the injuries were simple in nature, caused by blunt weapon.
Injury No. 2 Complained of pain in the back in the abdominal region but no mark of external injury was ween.
5. Ram Dhari Saria Jai Bhagwan Injury No. 1 A lacerated wound 2.70 cm*0.5 cm scalp deep on the left parital region of the skull 11 cm above the left ear pinna.
All the injuries were simple in nature caused by blunt weapon.
6. Maman Murshal Jai Bhagwan Fresh bleeding was present.
Injury No. 2A swelling 1.5 cm*1.5 cm on the right side of the face 2 cm lateral to the lateral end of right eye-brow.
Injury No. 2A swelling 1.5 cm*1.5 cm on the right side of the face 2 cm lateral to the lateral end of right eye-brow.
Injury No. 3Lacerated wound 3.0 cm*0.7 cm scalp deep on the right occipitoparital region 9 c.m. above the right ear pinna. Fresh blood was present.
30. It being a case of cross-versions the place of occurrence would play crucial role in determining as to which of the party was the aggressor. From a combined reading of the statement of the eye witnesses, rough site plan Ex. PR/1, and scaled site plan Ex. PO, it is evident that the occurrence had taken place in the public lane in front of the Beithak of Bairagies on the construction whereof the accused party was unhappy. According to eye witnesses Shamsher and Jai Bhagwan the accused had arrived at the Baithak and Rohtash accused asked as to why Ladoos had not been prepared. According to accused-appellant Rohtash when he and his co-accused Ishwar in a casual manner asked Shamsher and Balwan Singh to serve Ladoos there was an altercation between him and Ishwar on one hand and Shamsher and Balwan Singh on the other hand and Balwan Singh hit Ishwar with Khudpala who receded back in order to rescue himself and the tip of the Khudpala had hit him and when further blows were intended, he picked up a Khalwa from the Buggi of Parkash, parked in front of the Baithak, and Ishwar who carried lathi had inflicted injuries to Shamsher and Balwan Singh in the exercise of the right of their self defence. Jai Bhagwan also reached there and caused injuries to them and they had again acted in the right of their self defence. Under these circumstance, there is no escape but to conclude that the occurrence had taken place in the street. If that is so, then the possibility of sudden fight due to exchange of hot words between the parties, just before the occurrence cannot be ruled out, which in turn implies that none of the parties had indulged in pre-plan assault. Thus, there is no question of the two accused Rohtash and Ishwar having acted in the exercise of their self-defence even if it is taken that Balwan deceased and Shamsher PW had opned the attack first.
31. The learned counsel for the appellants contended that the injuries on the persons of the accused were not explained either in the FIR or in the statements of the PWs. According to accused Rohtash Balwan Singh (deceased) hurled a Khudpala blow on Ishwar and a tip thereof had hit him. He further stated that Jai Bhagwan had caused injuries to him and Ishwar. No doubt, according to the eye-witnesses, Ishwar accused had given an iron bar blow on the head of Balwan Singh whereas Rohtash accused dealt a khudpala blow which had landed near the right eye of Balwan Singh. It looks rather improbable for Balwan to cause any injury to Ishwar after receipt of the head injury as there was depressed fracture in between the lateral angle of the right orbit and right ear. The pieces were embedded in the brain matter. There was fracture of the orbital roof on right side also and after receiving this injury Balwan Singh would not be able to wield any weapon effectively. Similarly, Jai Bhagwan after receipt of injuries near his right eye, head and back as mentioned in the earlier part of this judgment while discussing the evidence of Dr. Rajiv Mittal PW 5, would not be able to wield any weapon effectively. This in turn implies that Balwan Singh deceased had opened the assault first, but that will be of no consequence to infer that the complainant party was the aggressor as the matter flared up all of a sudden. In a case of sudden fight it is immaterial as to which party had opened the attack first according to the provisions of Exception 4 to Section 300, Indian Penal Code.
32. The question then arises whether Ishwar and Rohtash accused-appellants had given more injuries to Balwan Singh or acted in a cruel or unusual manner by giving more injuries to him. While Balwan Singh was still alive Dr. Rajiv Mittal PW 5 had medico legally examined him. After his death, postmortem examination of his dead body was performed by Dr. Mahesh Parkash PW 4. Both these doctors had found only two injuries on the person/dead body of Balwan Singh which clearly shows that he had suffered only two injuries. Out of these two injuries, only one injury is located on the vital portion of the body i.e. the head. The second injury is located on the right eye. Dr. Rajiv Mittal in his cross-examination says: "One can have black eye without getting an injury on the eye, and may be dut to the extra vasation of blood. Injury No. 2 could be the result of injury No. 1".
33. On the other hand, Ishwar accused had suffered one injury on his person according Dr. R. S. Dahiya-PW 1. The perusal of medico-legal report Ex. DA of Ishwar accused reveals that following injury was observed on his person :--
1. cm x 1.4 cm lacerated wound on the left cheek.
Coauglated blood was present and the wound was skin deep.
This injury was declared simple in nature.
34. Thus, it cannot be said that Ishwar accused-appellant had acted in a cruel and unusual manner by causing more injuries to Balwan Singh deceased.
35. Under these circumstances, there is no escape but to conclude that it is clear case of sudden fight in the heat of passion upon a sudden quarrel between the parties, wherein the accused had not taken undue advantage or acted in a cruel manner. Thus, provisions of Exception 4 to Section 300, Indian Penal Code are well attracted to the case in hand. For the head injury of Balwan Singh deceased only Ishwar accused would be liable for culpable homicide not amounting to murder.
36. The question then arises whether the liability of Ishwar accused would be covered under Part I or Part II of Section 304, I.P.C. In this regard it is noteworthy that there is no circumstance on the file to infer that Ishwar appellant had aimed iron bar blow on different portion of the body, or that it happened to land on the head of Balwan Singh by chance.
37. Consequently, there is no escape but to conclude that Ishwar accused had given this injury on the head of Balwan Singh with an iron bar with the intention of causing bodily injury which is likely to cause death. Dr. Mahesh Parkash PW 4 had observed that this injury was sufficient to cause death in ordinary course of nature. Therefore, Ishwar accused-appellant stands aquitted of the charge under Section 302/34, IPC and his conviction and sentence recorded under the said Section are set aside but he now stands convicted for an offence under Section 304(1), IPC and is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
38. As far as Rohtash accused is concerned injury No. 2 a bluish swelling of the right eye of Balwan Singh has been attributed to him (injury No. 2) but in view of the opinion of Dr. Rajiv Mittal P W 5 in his cross examination that one could have balck eye without getting an injury on the eye and may be due to the extravasation of blood and further that injury No. 2 on the person of Balwan Singh could be the result of injury No. 1, it is doubtful that Rohtash accused had at all inflicted this injury No. 2 on the person of Balwan Singh. Therefore, he is acquitted of the charge under Section 302/34, I.P.C.
39. All the six accused namely Rohtash, Ram Mehar, Ishwar, Maman, Ram Dhari and Anand are acquitted of the charges under Sections 148 IPC and 323/149, IPC.
40. For the reasons recorded above, the appeal filed by Rohtash, Anand, Ram Mehar, Ram Dhari and Maman is accepted in entirety while that of Ishwar is partly accepted and mentioned above.