Punjab-Haryana High Court
Dhanbir And Another vs The State Of Haryana on 17 February, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-1221-SB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1221-SB of 2000
Date of decision: 17.2.2011
Dhanbir and another
...... Appellants
Versus
The State of Haryana
..... Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. Baldev Singh, Senior Advocate, with
Mr. Deepinder Singh, Advocate for the appellants.
Mr. Rajiv Prashad, Deputy Advocate General, Haryana.
JORA SINGH, J.
Dhanbir and Ishwar Singh, preferred this appeal to challenge the judgment of conviction dated 10.11.2000 and order of sentence dated 15.11.2000, passed by the learned Additional Sessions Judge, Gurgaon, in Sessions Case No. 26 of 9.12.1994, arising out of FIR No. 51 dated 4.4.1994, registered under Sections 307/34/506 of the Indian Penal Code at Police Station Pataudi.
By the said judgment, they were convicted under Sections 307/34 IPC and were sentenced to undergo imprisonment for a period of three years each and to pay a fine of ` 3000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of six months each.
CRA-S-1221-SB of 2000 -2-
Prosecution story, in brief, is that complainant party headed by Jagat Singh (complainant) was inimical towards the accused party due to previous litigation. On 4.4.1994, Halqa Patwari Om Kar and Girdawar Azim Khan, had gone to village Bapas for measurement of land to construct public toilets. Jagat Singh, was also present at the spot. Jagat Singh, on the motor cycle bearing registration No. UGG- 4250, with his cousin brothers Sudhir and Pardeep, had gone towards village Pataudi. Motor cycle was being driven by Jagat Singh and his two cousins were on the pillion. At about 5.30 p.m. complainant party was near the bus stand of village Khor, then sighted jeep bearing registration No. HRM-9569, being driven by Dhanbir. Ishwar Singh was also in the same jeep along with Halqa Patwari Om Kar and Girdawar Azim Khan. Jeep being driven by Dhanbir was struck against the motor-cycle driven by Jagat Singh, as a result of which motor-cycle fell down. Jagat Singh, Pardeep and Sudhir received injuries. When they abused the accused party then Dhanbir and Ishwar Singh, got down from the jeep with dandas. Dhanbir gave danda blow on the head of Sudhir. On receipt of danda blow he became unconscious. Ishwar Singh, gave danda blow to Pardeep. Said Halqa Patwari and Girdawar and some unknown persons came at the spot and intervened. After that accused had fled away from the spot in their jeep. Injured were brought to Civil Hospital, Pataudi where they were medico-legally examined. Regarding admission of injured, ruqa was sent to the police station and on receipt of ruqa SI Puran Mal had gone to Civil Hospital, Pataudi. Application Ex. PG was moved requesting the doctor to opine as to whether injured were fit to make statement or not. Jagat Singh CRA-S-1221-SB of 2000 -3- and Pardeep were declared fit to make statements. Sudhir was referred to Civil Hospital, Gurgaon. Statement of Jagat Singh Ex. PF, was recorded. After making endorsement Ex. PF/2, statement was sent to the police station on the basis of which formal FIR Ex. PF/1 was recorded.
SI Puran Mal, had gone to the spot. Motor cycle of the complainant party was lying at the spot was taken into police possession vide memo attested by the witnesses. After getting the photographs clicked, rough site plan Ex. PH with its correct marginal notes was prepared. Motor cycle was produced before the mechanic for mechanical test and report of the mechanic is Ex. PA. Accused were arrested. After completion of investigation, challan was presented in the Court.
Accused were charge-sheeted under Section 307 read with Section 34 of the Indian Penal Code to which they pleaded not guilty and claimed trial.
In order to substantiate its case prosecution examined number of witnesses.
PW-1 Constable Purshotam Lal, stated that on 10.4.1994, he had mechanically tested motor-cycle No. UGG-4250 and on 23.6.1994, jeep bearing registration No. HRM-9569, was mechanically tested. Ex. PA is the report regarding motor-cycle and Ex. PB is the report regarding jeep bearing registration No. HRM-9569.
PW-2 Azad Kumar, Photographer, stated that on 4.4.1994, he had taken the photographs Ex. P-1 to Ex. P-3 and negatives are Ex. P-4 to Ex. P-6.
CRA-S-1221-SB of 2000 -4-
PW-3 Mool Chand Punia, Draftsman prepared scaled site plan Ex. PC.
PW-4 Dr. A.N. Sinha, stated that Sudhir was examined on 5.4.1994 and was discharged on 7.4.1994. Ex. PD is the discharge summary of the patient by Dr. Anupam Mittal and Dr. Bajaj.
PW-5 Inspector Ram Phal, had partly investigated this case.
PW-6 Jagat Singh, is the complainant. He has reiterated his stand before the police.
PW-7 Sudhir, is the second injured eye-witness. He has supported the version of Jagat Singh.
PW-8 ASI Harpal Singh, stated that on receipt of ruqa Ex. PF, he had recorded formal FIR Ex. PF/1.
PW-9 SI Puran Mal, is the Investigating Officer. PW-10 Dr. P.D. Mehra, stated that on 4.4.1994 at 6.20 p.m. he had medico-legally examined Sudhir and found following injuries on his person:-
"1. Lacerated wound was present on right knee joint on dorsal aspect. Size was 4 cm x 2 cm x 1.5 cm. Margins were irregular. Fresh bleeding was present. Movements were restricted and painful. Advised X-ray.
2. Swelling were present on left side on the tempora parietal region. Size was 10 cm x 12 cm. Reddish discolouration was present. Pain and tenderness was there. Advised X-ray. CRA-S-1221-SB of 2000 -5-
3. Lacerated wound was present on right elbow on dorsal aspect. Size was 4 cm x 3 cm.
Margins were irregular. Fresh blood was there. Pain was there. Advised X-ray." On the same day at about 6.50 p.m. he had also medico- legally examined Jagat Singh and found following injuries on his person:-
"1. Abrasion was present on right knee joint on front size was 6 cm x 4 cm. Fresh bleeding was present. Pain and tenderness was there.
2. Bruise was present on right thigh in middle on dorsal aspect. Size was 9 cm x 5 cm. Pain and tenderness was there. Reddish discolouration of skin was present."
On the same day at about 7.00, he had also medico-legally examined Pardeep and found following injuries on his person:-
"1. Lacerated wound was present on right knee joint on front on lateral side. Size was 2 cm x 1.5 cm x 0.5 cm. Margins were irregular.
Fresh blood was present. Pain was there. Movements restricted.
2. Lacerated wound was present on right knee joint lateral side below 3 cm from injury No.1 size was 3.5 cm x 3 cm x ½ cm. Fresh blood was there. Margins were irregular. Pain and tenderness was there. Movements were CRA-S-1221-SB of 2000 -6- restricted.
3. Bruise was present on right thigh in lower one third on medial side. Size was 6 cm x 4 cm reddish discolouration of skin was present. Pain and tenderness was present.
4. Bruise was present, on left side on left thigh, on upper one third. Size was 4 cm x 3 cm. Reddish discolouration of skin was present. Pain was there."
All the injuries on the person of Jagat Singh, were found to be simple in nature. Injuries No.1 and 2 on the person of Pardeep were kept under observation. Other injuries were found to be simple in nature.
PW-11 Virbhan Saini, Assistant Ahlmad, in the Court of Judicial Magistrate Ist Class, Gurgaon, brought the summoned file. FIR No. 105 dated 19.6.1993, registered under Section 452/354 IPC, Police Station Patuadi, was registered against Dhanbir, in view of the statement of Smt. Asha.
PW-12 Contable Rambir stated that Ex. PP, is the copy of FIR No. 105 dated 19.6.1993.
After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of Dhanbir was that the complainant party was inimical towards them because they were helping a Harijan lady namely Bhagwani. Sh. B.K. Sinha, SP/SSP, Gurgaon was inimical CRA-S-1221-SB of 2000 -7- towards them on the misrepresentation of Kanwar Singh, the then SHO, Pataudi, who was related to Hoshiar Singh, father of Sudhir and Pardeep. Accident was due to the negligence of Jagat Singh. When he had slowed down the speed of the jeep to drop Ram Pal, Patwari, near the crossing of village Khor. Jagat Singh was driving the motor-cycle and the same was struck against the jeep from backside. In the accident, complainant party received injuries. To avoid any conflict with the complainant party, land situated in village Bapas was sold and he had shifted to Rajasthan.
Defence version of Ishwar Singh, was that he is innocent. In defence, DW-1 Dr. B.B. Aggarwal, appeared and stated that on 16.6.1993, injuries on the person of Dhanbir were X-rayed. Ex. DB, is the copy of the X-ray report. Fracture proxima phalynx of right little finger was detected.
DW-2 Kartar Singh, stated that he was a Patwari and had gone to village Bapas with Panchayat Officer, Kanungo etc. for demarcation of land to construct toilets. After demarcation they along with Dhanbir in a jeep were near the chowk of village Khor. Three persons on a motorcycle came from the backside while the jeep was very slow. Motor cyclist received injuries by fall.
DW-3 HC Jai Singh, stated that the summoned record was destroyed.
DW-4 Dr. P.D. Mehra, stated that on 15.6.1993, he had medic-legally examined Dhanbir and found following injuries on his person:
CRA-S-1221-SB of 2000 -8-
"1. Swelling with abrasion, present on the left eye near medial angle of eye. Size was 6 x 5 cm.
Reddish discolouration was present. Size of
abrasion was 2 x ½ cm. Fresh blood was
present. Pain was there.
2. Swelling with abrasion present on the right little finger on the dorsal and lateral aspect.
Size of abrasion was 2 x 1 cm. Size of swelling was 5 x 3 cm. Fresh blood was present in the abrasion. Pain and tenderness was there. Movements were painful at the inter phalangeal joint.
3. Swelling was present on the left elbow on dorsal and lateral aspects. Size was 20 x 18 cm. Reddish discolouration of skin. Pain and tenderness was there. Movements were painful and tender at the elbow joint.
4. Complaint of pain and tenderness on the right side of chest on lateral aspect."
DW-5 HC Hazrudeen stated that Ex. DD is the copy of DDR No. 10 dated 15.6.1993, Police Station Pataudi.
DW-6 Sunil Kumar Yadav, Advocate, stated that complaint titled Dhanbir Singh Vs. Hoshiar etc. was instituted by Dhanbir Singh against Hoshiar Singh and others. Ex. DE is the copy of the complaint.
DW-7 SI Dharampal, stated that on 25.10.1994, he had gone to village Bapas to make report as to whether Dhanbir requires CRA-S-1221-SB of 2000 -9- gun man or not. Ex. DF is the copy of report by him.
DW-8 Ashok Kumar, Licencing Clerk, DC Office, Gurgaon, stated that as per summoned record Mark-A is the copy of entry at serial No.1031 dated 15.12.1993.
DW-9 Mahender Kumar, ADC, Ambala, stated that on 15.12.1993, letter was received from District Magistrate, Gurgaon and the same was sent to Tehsildar, Patuadi, for necessary action. Mark-A is the copy of the application.
DW-10 Gopi Chand, Tehsildar, stated that he was posted as Tehsildar Pataudi on 29.12.1993. In view of letter dated 15.12.1993, SDM, Gurgaon, had directed him to report about the character of Dhanbir.
After hearing learned Public Prosecutor for the State, the learned defence counsel and from the perusal of evidence available on file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on the file.
Learned defence counsel for the appellants argued that according to prosecution story Jagat Singh on 4.4.1994, along with Halqa Patwari Om Kar and Girdawar Azim Khan, had gone to village Bapas for measurement of land to construct public toilets. Jagat Singh was present there but after that Jagat Singh on motorcycle bearing registration No. UGG-4250 along with his cousin brothers Sudhir and Pardeep had gone towards Pataudi. Jagat Singh, was driving the motorcycle and at about 5.30 p.m. when they were near the bus stand CRA-S-1221-SB of 2000 -10- of village Khor then appellants on a jeep came along with Patwari and Girdawar and the same was struck against motorcycle. Complainant party had a fall from the motorcycle then appellants after alighting from the jeep armed with dandas gave blows to the complainant party. Dhanbir gave danda blow on the head of Sudhir whereas Ishwar Singh gave danda blow to Pardeep that means only two danda blows were given but as per doctor three injuries were noticed on the person of Sudhir, two injuries were noticed on the person of Jagat Singh and four injuries were noticed on the person of Pardeep. Pardeep was not examined. In case, only one danda blow was given to Sudhir then how three injuries were noticed. If only one danda blow was given to Pardeep then no explanation about the remaining three injuries. Dr. PD Mehra, had medico-legally examined Sudhir, Jagat Singh and Pardeep. Injuries on the person of Sudhir were kept under observation. Injuries on the person of Jagat Singh were found to be simple in nature. Out of four injuries on the person of Pardeep injuries No. 3 and 4 were found to be simple in nature and injuries No.1 and 2 were kept under observation but no report of the doctor as to whether any injury on the person of Sudhir and Pardeep were found to be dangerous to life. Bed head ticket is not on the file that at any stage condition of Pardeep was critical and his life was in danger.
In case appellants had struck the jeep against the motorcycle then at the time of mechanical test motorcycle should have been found damaged but there was no damage. Every thing was found al-right. Jeep was also mechanically tested but no dent was noticed. Jagat Singh, in cross-examination admitted that after jeep had hit them CRA-S-1221-SB of 2000 -11- then they had a fall in front of the jeep then immediately Dhanbir had stopped the jeep. If intention of the appellants was to murder then complainant party could easily be run over by the jeep. In fact complainant party on a motorcycle was going towards Patuadi side after measurement of land to construct public toilets. Appellant party was also going in a jeep along with Girdawar and Patwari. Jeep was slowed down near the bus stand of village Khor to drop the officials. Motorcycle driven by Jagat Singh, had hit the jeep from backside. In the accident, complainant party received injuries. If we presume that motorcycle had not struck against the jeep from backside and the jeep was struck against the motorcycle then the appellants are liable for the punishment under Section 279/337 IPC and not under Section 307 IPC.
Learned State counsel argued that appellants were on a jeep and the same was struck against the motorcycle of the complainant party. Intention was to murder the complainant party. Jagat Singh, remained admitted in different hospitals. Injury was on the head. Appellants were rightly convicted under Section 307 IPC.
As per prosecution story, appellant party in a jeep after measurement of land to construct toilets with Patwari and Girdawar was near the bus stand of village Khor. Complainant party on a motorcycle was also going towards Pataudi. While going towards Pataudi jeep was struck against the motorcycle. Then complainant party had a fall from the motorcycle. Appellants armed with dandas gave blows to Sudhir and Pardeep whereas defence version of the appellants was that they were going in a jeep alongwith Girdawar and Halqa Patwari. Complainant party came on a motorcycle from the backside. When the CRA-S-1221-SB of 2000 -12- jeep was slowed down near the bus stand of village Khor then motorcycle driven by Jagat Singh, had hit the jeep from the backside. Now the question whether prosecution story inspires confidence or defence version seems to be more probable?
Jagat Singh, appeared as PW-6 whereas Sudhir appeared as PW-7. Both on oath stated that Halqa Patwari and Girdawar came to village Bapas to demarcate the land for the construction of public toilets. In connection with some personal work they had gone towards Pataudi side on a motorcycle. When they were near the bus stand of village Khor then appellants came in a jeep and the same was struck against the motorcycle. They had a fall on the ground. Appellants after alighting from the jeep gave danda blows to them. Dhanbir gave danda blow on the person of Sudhir whereas Ishwar Singh, gave danda blow on the person of Pardeep. Suggestion was given to the witnesses that appellant party was on a jeep along with Halqa Patwari and Girdawar. When officials were to be dropped near the bus stand of village Khor then complainant party came on a motorcycle from back. Motorcycle was struck on the backside of the jeep.
Motorcycle was taken into police possession on the same day and was produced before the mechanic. As per report of the mechanic Ex. PA, foot rest was found to be damaged. Light, brake, gear etc. were found to be alright.
Dr. P.D. Mehra, had medico-legally examined the injured. 3 injuries were noticed on the person of Sudhir. All the injuries were kept under observation. 2 injuries were noticed on the person of Jagat Singh. Both the injuries were declared simple in nature. 4 injuries were CRA-S-1221-SB of 2000 -13- noticed on the person of Pardeep and out of 4 injuries, injuries No. 1 and 2 were kept under observation and injuries No. 3 and 4, are simple in nature but after examination, no report as to whether any of the injury on the persons of Sudhir or Pardeep was found dangerous to life. Injury No.2 on the person of Sudhir was a swelling. Weapon used was danda. After injury was kept under observation then prosecution was required to produce X-ray reports and opinion of the doctor as to whether any of the injuries on the person of Sudhir or Pardeep was dangerous to life. No doubt, Sudhir remained admitted in the hospital for 2-3 days but no report of the doctor that at any stage, condition of Sudhir was critical and his life was in danger. According to the prosecution story, one injury with the danda was attributed to Dhanbir and one injury with danda was caused by Ishwar whereas according to doctor 3 injuries were noticed on the person of Sudhir, 2 injuries were noticed on the person of Jagat Singh and 4 injuries were noticed on the person of Pardeep. As discussed earlier, Pardeep was not examined for the reasons best known to the prosecution.
Jagat Singh, failed to explain how he received second injury. Sudhir also failed to explain how he received other 2 injuries when only one injury on the head was given. No case of the prosecution that after receiving injuries, injured became unconscious and after that more injuries were caused by the appellants. At the time of examination, injured were conscious.
In case jeep had struck against the motorcycle then some damage was expected to be noticed by the mechanic but only foot rest was found to be damaged. As per evidence, jeep was struck against CRA-S-1221-SB of 2000 -14- the motorcycle being driven by Jagat Singh then complainant party fell in front of the jeep. Immediately jeep was stopped. This fact is clear from the cross-examination of Jagat Singh. If the appellants had the intention to murder then complainant party could easily be run over by the jeep. There was no idea to stop the jeep immediately when the complainant party had a fall in front of the jeep. According to the prosecution story, jeep had struck against the motorcycle then right side of the motorcycle should have been damaged but no damage was noticed on the right side of the motorcycle. Jeep was also mechanically examined. No dent was noticed on the left side of the jeep. So all this shows that when jeep was slowed down to drop the officials near the bus stand of village Khor then jeep seems to have slightly hit the motorcycle being driven by Jagat Singh. By fall complainant party received injuries. No report of the doctor that any of the injury on the person of Jagat Singh, Pardeep and Sudhir, was dangerous to life. When the injuries were with blunt weapon and no report that any of the injury was grievous or dangerous to life then no question of conviction under Section 307 IPC.
Defence evidence on the file shows that earlier to the occurrence, complainant party was inimical towards the appellants. There was a simple accident due to rash and negligent driving of jeep but due to previous enmity appellants were forced to face trial under Section 307 IPC. In case, appellants had really caused injuries to the complainant party then Patwari and Girdawar, should have been produced as prosecution witnesses. Kartar Singh, Patwari, appeared as DW-2 and stated that he was serving in the Revenue Department. CRA-S-1221-SB of 2000 -15- After measurement of land to construct latrines, he alongwith the appellants in a jeep was going towards Pataudi side and near the bus stand of village Khor jeep was slowed down to alight him. Kartar Singh, was not inimical towards the complainant party. When jeep was immediately stopped after fall of the complainant party in front of the jeep and no report by the doctor that any of the injury was dangerous to life then I am of the opinion that due to rash and negligent driving there was an accident and in that accident complainant party received injuries. Instead of undergoing imprisonment under Section 307 IPC appellants are liable for punishment under Section 279/337 IPC.
Occurrence is dated 4.4.1994, at that time Dhanbir and Ishwar Singh, were about 35 years old. Ishwar Singh, appellant was serving as a teacher and has two minor children to support. Dhanbir had three children to support and out of three children he has two daughters of marriageable age. Appellants suffered the agony of protracted trial for the last 16 years. Ends of justice would be fully met if lenient view is taken.
Ishwar Singh, is to lose his job if directed to undergo imprisonment. Under Section 279/337 IPC appellants are directed to be released on probation on furnishing probation bonds under Section 12 of the Probation of Offenders Act, 1985, in the sum of ` 10,000/- with one surety in the like amount each for a period of one year to keep peace and be of good behaviour, with a direction to the appellants to undergo imprisonment in case of breach of condition of probation bonds. Appellants are further directed to deposit ` 15,000/- each CRA-S-1221-SB of 2000 -16- more as litigation expenses, within two months before the trial Court payable to the injured in equal shares as compensation. Order to release Ishwar Singh, on probation is not to effect his service.
For the reasons recorded above, the instant appeal is dismissed with modification on the point of conviction and sentence.
February 17, 2011 ( JORA SINGH ) rishu JUDGE