Punjab-Haryana High Court
Surat Singh And Others vs State Of Haryana on 28 January, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
Crl.Appeal No.543-DB of 2001 & anr. -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Appeal No.543-DB of 2001
Surat Singh and others
.....APPELLANTS
Versus
State of Haryana
....RESPONDENT
Crl.Appeal No.973-DBA of 2002
State of Haryana
.....APPELLANT
Versus
Kitab Singh and another
....RESPONDENTS
DATE OF DECISION: JANUARY 28, 2010
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE JORA SINGH
---
Present: Mr. Bhoop Singh, Advocate,
for the appellants in Crl.Appeal No.543-DB of 2001.
Mr.S.S. Randhawa, Addl.A.G., Haryana,
for the appellant in Crl.A.No.973-DBA of 2002
and for the respondent in Crl.Appeal No.543-DB of 2001.
..
SATISH KUMAR MITTAL, J.
1. This judgment shall dispose of two Criminal Appeals. Criminal Appeal No.543-DB of 2001 has been filed by accused Surat Singh, his wife Smt. Ompati and Ramphal against their conviction and sentence; and Criminal Appeal No.973-DBA of 2002 has been filed by the State of Haryana against the acquittal of accused Kitab Singh and his wife Smt. Crl.Appeal No.543-DB of 2001 & anr. -2- Rajpati.
2. In this case, the aforesaid five accused were tried by Additional Sessions Judge, Jind for committing the murder of Ramphal son of Pirthi Singh (now referred to as the deceased) and causing injuries with sharp edged weapon to complainant Satyawan and Kuldeep. The trial Court vide judgment dated 27.9.2001 has convicted and sentenced accused Surat Singh, Smt. Ompati and Ramphal as under:-
"S.No. Name Under section Sentence In default 1. Surat Singh i) 302 IPC Life imprisonment In default of payment and to pay a fine of fine he shall of Rs.10,000/- further undergo RI for three months. ii) 324 read with One year In default of payment section 34 IPC imprisonment and of fine, he shall to pay a fine of undergo RI for Rs.1000/- one month.
2. Smt.Ompati i) 302 read with Life imprisonment In default of payment section 34 IPC and to pay a fine of fine she shall of Rs.5,000/- further undergo RI for three months.
ii) 324 read with One year In default of payment
section 34 IPC imprisonment and of fine, she shall
to pay a fine of further undergo RI
Rs.1000/- for one month.
3. Ramphal i) 302 read with Life imprisonment In default of payment
section 34 IPC and to pay a fine of fine he shall
of Rs.5,000/- further undergo RI
for three months.
ii) 324 IPC One year In default of payment
imprisonment and of fine, he shall
to pay a fine of further undergo RI
Rs.1000/- for one month."
3. In this case, the complainant as well as accused parties were residents of village Nagura, District Jind and were agriculturists by occupation. They own their land adjoining to each other and irrigate the Crl.Appeal No.543-DB of 2001 & anr. -3- same by canal water. In this case, the dispute between them arose on account of irrigating their fields from the canal water, which resulted into death of one person.
4. The prosecution version is based upon the statement of complainant Satyawan, which was made by him to PW13-ASI Sube Singh at 8.00 p.m. on 30.7.1999 at General Hospital, Jind. In his statement (Ex.PR), he stated that he and his brothers Ramphal and Sukhbir, and Kuldeep son of Ram Karan purchased canal water from Khem Chand, Diwana sons of Inderaj and Udmi son of Tala for irrigating their fields. He further stated that on 30.7.1999, his brother Ramphal (deceased) and his nephew Kuldeep were irrigating their fields after diverting the flow of water from the field of Kuldeep at 6.27 a.m. The field of Kitab Singh (accused) adjoins to their fields. At that time, Kitab Singh, his wife Rajpati, Surat Singh and his wife Ompati were cutting grass in their paddy crop. Accused Ramphal was cutting `Jawar' in his nearby field. At about 11.00 a.m., accused Surat Singh started irrigating the killa of Kitab Singh. They (complainant party) closed the flow of water with a spade. After 15 minutes, Surat Singh again diverted the canal water to his fields. Then he (complainant) and his brother Ramphal (deceased), Sukhbir and nephew Kuldeep again tried to close the flow of water. Accused Surat Singh, Kitab Singh and Ram Phal, who were armed with Jailies and Ompati and Rajpati armed with sickles (Daratis) reached there with a common intention, raised alarm and said how they (complainant party) closed the water. His brother Ram Phal (deceased) replied that they would close the water as it was their turn. When his brother Ram Phal started closing the water with a spade, accused Kitab Singh caught hold of him and accused Surat Singh inflicted Crl.Appeal No.543-DB of 2001 & anr. -4- Jaily blow on the right side of his chest and further inflicted second blow on his right arm near elbow. His brother Ram Phal fell in the watercourse. When he and his nephew Kuldeep tried to save him, accused Ramphal inflicted Jaily blows on his left flank near shoulder. Ompati and Rajpati caused injuries to Kuldeep with their sickles. Ompati also gave sickles blow from reverse side on his hand. On their alarm, Om son of Dhulli Chand, a resident of village came there and on his lalkara all the assailants (accused) ran away with their respective weapons and then they (complainant party) took Ram Phal to Civil Hospital, Jind in a tractor for treatment where the doctor declared him dead.
5. On the basis of the aforesaid statement, formal FIR (Ex.PR/B) was registered on 30.7.1999 at 8.50 p.m. at Police Station Alewa, District Jind. The Special Report was sent to the Illaqa Magistrate on the same day at 11.30 p.m. at his residence. As per the record, Ram Phal (deceased) reached Civil Hospital, Jind at 2.35 p.m. where he was declared brought dead. On the same day at about 3.00 p.m., PW7-Dr.Ranbir Singh, medico- legally examined complainant Satyawan. He found following three injuries on his person:-
"1. Penetrating wound in front of right shoulder 0.25 cm x 0.25 cm. Fresh blood was seen on the wound. Nature of injury was penetrating and weapon used was pointed.
2. Penetrating wound in front of left side abdomen lateral aspect 0.25 cm x 0.25 cm. Fresh blood was seen on the wound. Surrounding edema was present.
3. Defuse swelling left forearm lateral and dorsal aspect.
Tenderness was present but no crepitus was present."
All the injuries were found to be simple. In his opinion, first two injuries could have been caused by Jaily and third one by a blunt weapon. He proved Crl.Appeal No.543-DB of 2001 & anr. -5- the MLR of Satyawan as Ex.PM.
6. On the same day at 8.45 p.m., PW10-Dr. R.N. Bura, medico- legally examined injured Kuldeep. He found five simple injuries on his person. One injury was defuse swelling, one reddish contusion, one small scratch mark and remaining two complaints of pain on the right and left shoulders joint. In his cross-examination, he has stated that all these injuries are superficial in nature and are on non-vital parts of the body which could be suffered from friendly hand.
7. On the next day, i.e., 31.7.1999 at 8.45 a.m., PW5-Dr. V.P. Kakkar conducted the autopsy of the deceased. He found following four injuries on the body of the deceased:-
"1. There were two lacerated wounds of size 0.75 cm diameter oval shaped, transversily placed 5 cm apart and 4 cm away from midline and 6 cm below centre of right clavical on front of right side of chest. Clotted blood was present. On dissection, the wounds were directed posteriorly and medially and cutting through skin and intercostal muscles. Medial wound was third and lateral was in fourth intercortal space. The medial cavity and right plueral cavity was full of blood. The medial wound passed through medial stinal cavity in superior venacava. The lateral wound passed through pluera and right lung in the depth of 4 cm.
2. There were two lacerated wounds of size 0.75 cm diameter lying 5 cm apart, vertically placed on posterior aspect right arm. The lower one was lying 2 cm above the right elbow. The wound was cutting through skin and under lungs muscles. Clotted blood was present.
3. There were two lacerated wounds of size 0.75 cm diameter lying on front of left hand 5 cm apart. The wound was cutting through skin and underlying muscles. Clotted blood was present.
4. There was lacerated wound of size 1 cm x 0.75 cm in the back of right thumb on middle phalan. Clotted blood was present."
In his opinion, the cause of death was haemorrhage, shock and injuries to Crl.Appeal No.543-DB of 2001 & anr. -6- vital organs which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The time elapsed between injuries and death was within one hour and between death and post mortem was within 4 to 48 hours. He further opined that the injuries on the body of the deceased could be caused by Jaily. He further opined that except injury No.1, the other three injuries were simple in nature and were on non-vital part of the body.
8. On 31.7.1999 at about 9.00 p.m., PW5-Dr. S.K. Ahuja, medico- legally examined accused Surat Singh. He found the following six injuries on his person:-
"1. Lacerated wound size 4 cm x .75 cm on right front parital region of skull. Clotted blood with oozing was present.
2. Lacerated wound of size 3.5 cm x .5 cm on right parital region. (Half moon shape). Clotted blood was present.
3. Lacerated wound on right temporal region of size 2 cm x .5 cm Clotted blood was present.
4. Lacerated wound of size 2 cm x .5 cm on left thumb with swelling present. Oozing and clotted blood was present.
5. Contusion 4 cm x 2 cm on left side of chest. The patient complained of pain.
6. Contusion 6 cm x 4 cm on lateral aspect of left arm."
In his opinion, all the injuries were simple and could have been caused by blunt weapon. The duration of all the injuries was within 48 hours. This witness further stated that on the same day he also examined accused Smt. Ompati. He found the following four injuries on her person:-
"1. Lacerated wound of size 5 cm x .5 cm with extension of 3 cm x .5 cm on right side of forehead and the wound was inverted `Y' shape. Clotted blood with oozing was present and Echymosis of right eye present.
2. Echymosis of left eye, more in the lower part with abrasion Crl.Appeal No.543-DB of 2001 & anr. -7- 3 cm x 1 cm on the lateral part of left eye.
3. Bruise on the posterior part of left arm was present, bluish in colour.
4. The patient complained of pain right hip but there was no mark of injury."
In his opinion, all the injuries were simple and caused by blunt weapon and the duration of all the injuries was within 48 hours.
9. It is pertinent to mention here that on 31.7.1999, PW13-Sube Singh recorded the version of the occurrence given by accused Surat Singh. The copy of the said statement is Ex.DA on the record. In his statement, accused Surat Singh stated that on 30.7.1999 he along with his wife Smt.Ompati, Kitab Singh and his wife Smt.Rajpati were uprooting the grass from the paddy crop in their field. At 11.00 a.m., he started irrigating his field. But the water was closed by Ram Phal (deceased) on which an altercation took place between them. He again started irrigating the field at 11.15 a.m. Then Ram Phal, Satyawan and Sukhbir sons of Pirthi Singh came there. Ram Phal was armed with a spade, Satwayan with a Jaily, Sukhbir with a Bahi and Kuldeep son of Ram Karan with a Jaily. When he asked them not to close the water, Ram Phal inflicted a spade blow on his head from handle side. Kuldeep gave a Jaily blow on his head, as a result of which he fell down. Satyawan also gave Jaily blow on his head when he was lying on the ground. When his wife tried to rescue him, Sukhbir gave Bahi blow on the forehead of his wife. Sukhbir also gave him injury on his left thumb and Kuldeep gave him kick blow on the left side of his chest. In the meantime, wife of Satyawan also reached there and she gave lathi blow on his left arm. His wife fell down on his body. He further stated that wife of Satyawan also gave lathi blow on her left eye and left arm while she was Crl.Appeal No.543-DB of 2001 & anr. -8- lying on the ground. Then he gave a Jaily blow to Ram Phal in his self defence. On their alarm, Satbir son of Dharmu, Om son of Duli Chand, Kitab Singh and Rajpati came there, who rescued them and brought them to the house. Ramphal took him to Civil Hospital, Jind for admission.
10. During the course of investigation, accused Surat Singh and Smt. Ompati were arrested on 6.8.1999, accused Ram Phal was arrested on 7.8.1999, accused Kitab Singh was arrested on 13.8.1999 and accused Smt. Rajpati was arrested on 7.9.1999. On the disclosure statement (Ex.PW13/A) made by accused Surat Singh, a Jaily was got recovered from his house on 6.8.1999 which was taken into possession vide recovery memo Ex.PW13/B. Similarly, on the same date, on the disclosure statement (Ex.PW13/D) of accused Ompati, a Daranti (sickle) was recovered and the same was taken into possession vide recovery memo Ex.PW13/E. On 7.8.1999, on the disclosure statement (Ex.PX) of accused Ramphal, a Jaily (Ex.P4) was got recovered from his house vide recovery memo Ex.PX/2. On the same day, on the disclosure statement (Ex.PY) of accused Rampati, one Darati (Ex.P7) was also got recovered and the same was taken into possession vide recovery memo Ex.PY/1. No recovery from accused Kitab Singh was made.
11. After completion of the investigation, the challan was presented against all the accused. They were charge-sheeted under Section 302 read with Section 149 IPC and Section 324 read with Section 149 IPC besides a charge under Section 148 IPC was framed against them, to which they pleaded not guilty and claimed trial.
12. In support of its case, the prosecution examined 13 witnessesl including PW5-Dr. S.K. Ahuja, PW6-Dr. V.P. Kakkar, PW7-Dr. Ranbir Singh, PW10-Dr.R.N. Bura and two injured eye-witnesses, namely, PW8- Crl.Appeal No.543-DB of 2001 & anr. -9- Satyawan and PW9-Kuldeep. Both these eye-witnesses have supported the case of the prosecution, though they have made certain improvement in their statements while deposing before the Court with some contradictions. In order to prove that the complainant party purchased the right to use the canal water from Khem Chand, Diwana sons of Inderaj and Udmi son of Tala, the prosecution has examined PW4-Smt. Sudha Devi wife of Khem Chand , PW12-Krishan son of Diwana and PW16-Karan Singh. All the three witnesses did not support the prosecution version. They have categorically stated that they did not sell the water right of their Warabandi to complainant Satyawan. These witnesses have also denied the execution of three receipts which were taken into possession and placed on record by PW15-SI Ram Mehar Singh. The prosecution has also examined PW13- Sube Singh, Investigating Officer, PW14-Constable Ram Mehar and PW15- SI Ram Mehar Singh in order to prove the recovery of respective weapons from the accused and other part of the investigation. The prosecution has also placed on record the Warabandi of the canal water which shows the time of the turn of water of various co-sharers, which, for ready reference, is tabulated as under:-
"52. Baru s/o Mange 4.21 6.27
53. Khem Chand s/o Maru 6.27 10.09
54. Gowerdhan, Diwana 10.09 10.46 sons of Mamraj
55. Jagdish, Ram Niwas, Jagta 10.46 10.56
56. Somdutt, Om Parkash 10.56 11.24
57. Tara s/o Indraj 11.24 11.43
58. Udmi s/o Tale 11.43 14.02"
13. In their statement under Section 313 Cr.P.C., the accused denied all the allegations of the prosecution and took the plea that the turn Crl.Appeal No.543-DB of 2001 & anr. -10- of water of Diwan Khem Chand, Tala falls on Friday and this turn of water was being utilised by Surat Singh since long as the canal water does not reach the fields of those owners as the level of their land was higher. It was further pleaded by the accused that on the date of occurrence Surat Singh was irrigating the land at 6.00 a.m. as usual and when he had irrigated half of the acre of the land, then the complainant party tried to take turn of water by force and on his objection, Ram Phal (deceased) gave a Kassi blow on his head from reverse side. Both the eye-witnesses, Satyawan and Kuldeep also gave injuries to him and when Smt. Ompati was trying to save her husband, the complainant party also inflicted injuries to her. It was pleaded that the complainant party was at fault and were aggressors and caused injuries to them, however, in self defence, Surat Singh gave a Jaily blow to the deceased. In support of its defence, the accused examined DW1-Ramdia, who is the successor of Somdutt and Om Parkash, who were having the turn of water as per Ex.P6 from 10.56 a.m. to 11.24 a.m. This witness has categorically stated that the turn of water of Somdutt and Om Parkash was being used by accused Surta for the last 10 to 12 years.
14. The trial Court after hearing the arguments of the learned counsel for the parties and considering the evidence available on the record, convicted and sentenced accused Surat Singh, his wife Smt. Ompati and Ramphal and acquitted accused Kitab Singh and Smt. Rajpati. It has been held by the trial Court that case is not proved beyond a reasonable shadow of doubt against accused Kitab Singh and Smt. Rajpati and it cannot be said with certainty that they shared the common intention with other accused. Against the said judgment, the aforesaid two appeals have been filed.
15. Learned counsel for the appellants argued that the genesis of Crl.Appeal No.543-DB of 2001 & anr. -11- the alleged occurrence was the using of turn of the canal water of Khem Chand, Diwana sons of Inderaj and Udmi son of Tala. According to the complainant, they had purchased canal water from these persons for irrigating their fields. On the day of the occurrence, when at about 11.00 a.m., appellant Surat Singh closed the flow of water, the same was restored by the complainant and 15 minutes thereafter, second time Surat Singh diverted the turn of water of the complainant and started irrigating his fields, then the alleged occurrence had taken place. Learned counsel argued that the prosecution has miserably failed to establish the fact that the complainant party had purchased the water right of aforesaid three persons. The three witnesses produced by the prosecution have not supported the prosecution case. On the other hand, DW1- Ramdia has categorically stated that he was the successor of Somdutt and Om Parkash, who were having the turn of water as per Ex.P6 from 10.56 a.m. to 11.24 a.m., and the turn of water of these persons was being used by accused Surta for the last 10 to 12 years. This fact clearly establishes that the complainant party was the aggressive party. Learned counsel further argued that as per the admission made by PW9-Kuldeep, the incident had taken place in the field of appellant Surat Singh. In view of this fact, learned counsel argued that it was the complainant party who had first attacked appellant Surat Singh and his wife, and only in self defence, Surat Singh gave a Jaily blow to Ram Phal (deceased). Learned counsel argued that while taking the benefit of delay in lodging the FIR, as the occurrence had taken place at 11.15 a.m. and the FIR was registered at at 8.50 p.m., the complainant party in connivance with the police, has concocted false version in which other family members of the accused were falsely implicated. Learned counsel further argued that Crl.Appeal No.543-DB of 2001 & anr. -12- according to the prosecution version, as per MLR (Ex.PE), six injuries were found on the body of injured Surat Singh, but the same have not been explained. Non-explanation of these injuries on the person of the accused caused serious doubt about the manner in which the prosecution version has been set up. Learned counsel also argued that in this case Om Parkash was the only independent witness, who was present at the time of the alleged occurrence, but the prosecution has not examined him without any explanation, being unnecessary. Therefore, the best evidence has been withheld by the prosecution. Learned counsel further argued that both the eye-witnesses, namely, PW8-Satyawan and PW9-Kuldeep have made major improvement in the Court with regard to the nature of injuries, causing of injuries to the appellant and his wife and using of the weapons. While referring to various contradictions in their statements and the improvement made, learned counsel argued that the prosecution version about the manner in which the alleged occurrence had taken place, is wholly unreliable and untrustworthy. He argued that the version given by the accused is more probable as the said version was disclosed by accused Surat Singh on 31.7.1999 when his statement (Ex.DA) was recorded by PW13-Sube Singh. Therefore, learned counsel argued that the complainant party was the aggressor and when they were causing injuries on the vital parts of the body of accused Surat Singh and his wife, accused Surat Singh caused a Jaily blow to Ram Phal (deceased) in his self defence. Therefore, his conviction is liable to be set aside.
16. On the other hand, learned counsel for the respondent-State justified the conviction of the three accused for various offences, indicated above. He further argued that acquittal of the two accused, namely, Kitab Crl.Appeal No.543-DB of 2001 & anr. -13- Singh and Smt. Rajpati is wrong and against the evidence on record. The presence of these two accused at the time of occurrence has been admitted. Both these accused raised lalkara and gave injuries to the complainant, and they were members of unlawful assembly with common intention. Therefore, in the facts and circumstances of the case, their acquittal is not justified at all and they are also liable to be convicted for the offence of murder of Ram Phal committed by them with common intention.
17. We have heard the arguments of the counsel for the parties and gone through the record of the case.
18. In this case, on the day of the occurrence, i.e. 30.7.1999, Ramphal son of Pirthi Singh had died due to the injuries received by him. His homicidal death has been proved by PW6-Dr. V.P. Kakkar, who conducted the autopsy of the deceased on 31.7.1999 at 8.45 a.m. He has proved the post-mortem report (Ex.PJ). In his opinion, the cause of death was haemorrhage, shock and injuries to vital organs, which were ante- mortem and sufficient to cause death in the ordinary course of nature. According to the prosecution, four injuries were found on the body of the deceased which were caused by accused Surat Singh. In the said occurrence, complainant Satyawan and Kuldeep had also alleged to have received the injuries. As per PW7-Dr. Ranbir Singh, he found three injuries on the body of complainant Satyawan on his medico-legal examination on 30.7.1999 at 2.35 p.m. All these injuries were found to be simple. He has proved MLR of Satyawan as Ex.PM. On the same day, PW10-Dr. R.N. Bura medico-legally examined Kuldeep and found five simple injuries on his person which were superficial in nature and were on non-vital parts of the body which in the opinion of the doctor could have been suffered from friendly hand. He has Crl.Appeal No.543-DB of 2001 & anr. -14- proved the carbon copy of MLR Ex.PT. According to the prosecution, these injuries were caused to the aforesaid two injured by accused Ram Phal, his wife Smt. Ompati and Smt. Rajpati. Kitab Singh alleged to have caught hold the deceased. He did not cause any injury to any one. Further, as per the prosecution version, the alleged occurrence had taken place at 11.15 a.m. when accused Surat Singh second time diverted the canal water to his fields. According to the complainant, he, his brother Ramphal (deceased), Sukhbir and Kuldeep son of Ram Karan had purchased canal water from Khem Chand, Diwana sons of Inderaj and Udmi son of Tala for irrigating their fields. On the day of the occurrence, his nephew Kuldeep was irrigating their fields after diverting the flow of water. But at about 11.00 a.m., when accused Surat Singh started irrigating his land from the canal water after diverting the Nakka, he was stopped by the complainant party for doing so. After 15 minutes again he diverted the canal water to his field. Thereupon the complainant party, including the deceased and the complainant, went to the field where accused Surat Singh was diverting the water. When the deceased started closing the water with a spade, it is alleged that Kitab Singh caught hold him and accused Surat Singh inflicted Jaily blow to him, which resulted into his death. It is further the case of the prosecution that at that time accused Surat Singh, Kitab Singh and Ram Phal, who were armed with Jailies and Smt. Ompati and Smt. Rajpati, who were armed with sickles, came on the spot with a common intention to cause injuries to the deceased, who wanted to close the flow of water and to divert it to his field.
19. As per the prosecution version, which is based upon the statement (Ex.PR) of complainant Satyawan, the complainant party did not cause any injuries to any of the accused, whereas it has come on record that Crl.Appeal No.543-DB of 2001 & anr. -15- on 31.7.1999, PW5-Dr.S.K. Ahuja, medico-legally examined accused Surat Singh and found six injuries on his person. On the same day, he also examined Smt.Ompati and found four injuries on her person. All those injuries though were simple but caused by blunt weapon. The prosecution has not explained as to how those injuries were received by the aforesaid two accused. It has also come on record that on 31.7.1999, PW13-Sube Singh recorded the statement of accused Surat Singh, copy of which is Ex.DA on the record. In that statement, he had stated that when he was irrigating his field, the water was closed by Ram Phal (deceased) by diverting the Nakka without any justification and reason as for the last so many years, they were using the water share of Somdutt and Om Parkash. On that, an altercation took place between them and in that altercation, Ram Phal (deceased) inflicted a spade blow on his head from handle side, Kuldeep gave a Jaily blow on his head and Satyawan also gave a Jaily blow on his head when he was lying on the ground. They also caused injuries to his wife Ompati. He further stated that in his self defence, he gave a Jaily blow to Ram Phal (deceased). From this it appears that the accused had admitted the occurrence, but taken the plea of self defence. Same stand was taken by the accused in their statements under Section 313 Cr.P.C. However, it has been stated that Kitab Singh and his wife Rajpati neither participated in the occurrence nor caused injuries to any one and they were falsely named in the occurrence.
20. Now in these facts and circumstances, firstly it has to be seen as to what was the genesis of the occurrence and which party was aggressor. The genesis of the occurrence was using the water turn of Khem Chand, Diwana sons of Inderaj and Udmi son of Tala as well as Somdutt and Om Crl.Appeal No.543-DB of 2001 & anr. -16- Parkash. It is the case of the prosecution that the complainant party had purchased the water right of these three persons and when as per that right, they were irrigating their fields, accused Surat Singh illegally and without justification diverted the water flow and started irrigating his field, which was objected by the complainant and the deceased, as a result of which, the occurrence had taken place. In order to prove that the complainant party had purchased the water right of the aforesaid three persons, the prosecution has relied upon the statements of PW4-Smt. Sudha Devi wife of Khem Chand, PW12-Krishan son of Diwana, PW16-Karan Singh and three receipts (Mark-`A', Ex.PW12/B and Ex.PW16/B) taken into possession by the Investigating Officer. All the three witnesses have not supported the case of the prosecution. They have denied the execution of three receipts which have been taken into possession and produced by PW15-SI Ram Mehar Singh. On the other hand, defence witness DW1-Ramdia, who was the successor of Somdutt and Om Parkash, has categorically stated that for the last 10 to 12 years, the turn of water of Somdutt and Om Parkash was being used by accused Surat Singh. From the Warabandi (Ex.P6), which is available on the record, the water turn from 10.56 a.m. to 11.24 a.m. was of Somdutt and Om Parkash. So, from the evidence of the prosecution itself, it has been established that at the time of the alleged occurrence (11.15 a.m.) the water turn was of Somdutt and Om Parkash. Neither there is any allegation nor any evidence that the complainant party had purchased the water right of Somdutt and Om Parkash. These facts will lead to an inference that the prosecution has failed to establish the genesis of the occurrence or the motive of the alleged occurrence. This fact, coupled with the fact that the alleged occurrence had taken place in the field of accused Crl.Appeal No.543-DB of 2001 & anr. -17- Surat Singh, leads to further inference that the accused party was not aggressor.
21. The second important factor in this case is the non-explanation of the injuries by the prosecution on the person of the accused Surat Singh and Smt. Ompati. In our opinion, non-explanation of the injuries on the person of the accused may assume great importance, particularly when the alleged genesis of the occurrence has not been proved and where the main evidence of the prosecution consists of interested and inimical witnesses. Though while appearing in the Court, both the material witnesses, namely, PW8-Satyawan and PW9-Kuldeep have tried to make improvement while saying that they had also caused injuries to the accused, but in the FIR and in their statements before the police, they did not utter a word about causing any injury to the accused. In this case, except the aforesaid two interested witnesses, as per the prosecution version, one Om Parkash, who was an independent person, had also seen the occurrence, but the said independent witness has not been examined to corroborate the version of the aforesaid two witnesses. In these circumstances, after closely scrutinizing the prosecution evidence as well as the defence, and keeping in view the aforesaid facts and circumstances of the case and numbers of injuries received by both the side, we come to the conclusion that the alleged incident had taken place suddenly on the issue of diverting the flow of water and in that incident, a free fight, without pre-meditation of mind, had taken place between two groups in which both groups, who were armed with sickles, spade and Jailies, had sustained injuries. It has been held by the Supreme Court in Pundalik Mahadu Bhane and others v. State of Maharashtra, (1997) 11 SCC 567 that in case of a sudden and free fight, Crl.Appeal No.543-DB of 2001 & anr. -18- without pre-meditation of mind, each of the person involved therein can be held liable for his individual act and not vicariously liable for the acts of others. Therefore, in the present case also, each of the accused, who was involved in the occurrence, is liable to be punished for his individual act and not vicariously liable for the acts of others. As per the prosecution case, appellant Surat Singh had caused Jaily blows to the deceased. No other accused caused any injury to deceased Ram Phal. According to the medical evidence, the Jaily blow given by appellant Surat Singh on the chest of the deceased proved fatal, which resulted into his death. The plea of appellant Surat Singh that he had caused injuries to the deceased in self-defence, cannot be accepted because it has come in evidence that he caused injuries to the deceased even after he fell down on the ground. Since the alleged occurrence had taken place on the issue of diverting the flow of water and in that incident a free fight without pre-meditation of mind had taken place between two groups in which both the groups had sustained injuries, therefore, in our opinion, appellant Surat Singh is individually liable for conviction for committing the homicidal death of Ram Phal. In the present case, the prosecution has failed to prove the genesis of the occurrence. It also cannot be said as to which party was the aggressor as it was a sudden mutual fight. The prosecution did not explain the injuries on the accused. However, it is admitted position that accused Surat Singh caused Jaily blow on the chest of the deceased, which, according to the opinion of the doctor, proved fatal and resulted into death of the deceased. Appellant Surat Singh did not cause any other injury to any person. Appellant Ramphal inflicted a Jaili blow on the right shoulder and left side of the abdomen of Satyawan when he and Kuldeep (PW9) intervened to save the deceased. Appellant Crl.Appeal No.543-DB of 2001 & anr. -19- Surat Singh, who had caused three and four injuries to the deceased, had exceeded his right of self defence, but in our opinion, appellant Surat Singh has committed culpable homicide of deceased which does not amount to murder. The case of the appellant Surat Singh falls under Exception 4 of Section 300 IPC. Therefore, he is liable to be punished under Part I of Section 304 IPC.
22. As far as appellants Smt. Ompati and Ramphal are concerned, appellant Smt.Ompati caused simple injuries to the complainant Satyawan and his nephew Kuldeep with Sickles and appellant Ramphal gave simple injury to the complainant. Both of them did not cause any injury to the deceased. Therefore, their conviction under Section 302/34 IPC is not sustainable and liable to be set aside, but they are liable to be convicted for their individual act under Section 324 IPC.
23. As far as acquittal of the aforesaid two accused, namely,Kitab Singh and his wife Smt. Rajpati are concerned, the trial Court has acquitted them of the charges framed against them while coming to the conclusion that since the case against both the appellants is not proved beyond a reasonable shadow of doubt, it could not be said with certainty that they shared the common intention with other accused. We do not find any ground to interfere in their acquittal by the trial Court.
24. Accordingly, conviction of appellant Surat Singh under Section 302 IPC is altered to Section 304 Part I IPC for committing the culpable homicide of the deceased, which is not amounting to murder, and he is sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs.10,000/-.
25. Similarly, conviction of appellants Smt. Ompati and Ramphal Crl.Appeal No.543-DB of 2001 & anr. -20- under Section 302/34 IPC is, hereby, set aside and the conviction of appellant Smt. Ompati under Section 324/34 IPC is altered to Section 324 IPC and the conviction of appellant Ramphal under Section 324 IPC is upheld. Keeping in view the age of both the appellants, the fact that the incident had taken place about 11 years back and the protracted trial they have faced, we sentence both the appellants to the period already undergone by them.
26. As appellant Surat Singh is on bail, his bail bonds stand cancelled. The appellant is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against the appellant in accordance with law.
27. Resultantly, Crl.Appeal No.543-DB of 2001 is partly allowed and Crl.Appeal No.973-DBA of 2002 is dismissed.
(SATISH KUMAR MITTAL)
JUDGE
January 28, 2010 ( JORA SINGH )
vkg JUDGE