Punjab-Haryana High Court
Mahabir And Others vs State Of Haryana on 30 January, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.S-1062-SB of 2008
Date of decision : 30.01.2013
Mahabir and others
.... Appellants
VERSUS
State of Haryana
.... Respondent
CORAM : HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Mr.Sunil Panwar, Advocate,
for the appellants.
Mr.Kshitij Sharma, Asstt. Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J The instant appeal is directed against the judgment of conviction dated 17.05.2008 and order of sentence dated 20.05.2008, passed by the Addl. Sessions Judge, Fast Track Court, Gurgaon, vide which appellants Mahabir, Satish, Bharat Singh, Gajraj and Anil have been convicted and sentenced to undergo rigorous imprisonment for one year each under Section 148 read with Section 149 IPC; rigorous imprisonment for one year each under Section 323 read with Section 149 IPC; rigorous imprisonment for two years and to pay a fine of Rs.1500/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each under Criminal Appeal No.S-1062-SB of 2008 [2] Section 325 read with Section 149 IPC and rigorous imprisonment for three years and to pay a fine of Rs.1500/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each under Section 452 read with Section 149 IPC. All the sentences were ordered to run concurrently. However, Devender has been acquitted of the charges framed against him.
The brief facts of the prosecution case are that on 04.12.2004, ASI Rajender Singh was present in General Hospital, Gurgaon in connection with investigation of case FIR No.321 dated 04.12.2004 registered at Police Station Sohana in murder case. There he received information that accused of that case were admitted in Kalyani Hospital, Gurgaon. Thereafter, he went to Police Station City Gurgaon and obtained doctor's ruqa Mark-A regarding Rishipal, Rajpal and Raj Kumar. Thereafter, he went to Kalyani Hospital and moved applications for obtaining the opinion of the doctor regarding the fitness of injured persons to make statement. Then he recorded the statement of Raj Kumar at 2:40 p.m. on 04.12.2004 in which complainant stated that on 03.12.2004 at about 10:20 p.m., he was laying on a cot at his house. When he heard the noise of giving abuses, he came out of his house. Then he heard the noise of firing of bullets and he proceeded to the house of his brother Rajender declaring that there was firing of bullets in the neighbourhood. When he reached at the house of his brother Rajpal, he saw Girdhari lying on the ground. He did not know if he was Criminal Appeal No.S-1062-SB of 2008 [3] unconscious or dead. He saw Gajraj, Mahavir, Anil, Devender, Bharat Singh and Lallu there. Gajraj was armed with lathi; Mahavir was armed with country made pistol; Anil was armed with Pharsa, Devender was armed with rod, Bharat Singh was armed with country made pistol and Lallu was armed with a rod which they were holding in their hands. These people were giving injuries to Rajpal and Rishi Pal. When complainant Raj Kumar tried to save his brother Rajpal then accused Lallu gave him a rod blow on his head which hit his head on the other side and second blow was given on the right side of his shoulder and third blow was given on his right hand wrist on below side. The complainant snatched rod from accused Lallu and threw away and then scuffle ended and all the inhabitants came out from their houses. He did not know who had lifted Girdhari. He did not know as to what was the reason of scuffle and its genesis. Thereafter, they reached Kalyani Hospital for treatment. On the basis of this version, cross case was registered. ASI Rajinder Singh in connection with the investigation of this case, visited village on 06.12.2004 and called various persons of the village and made inquiries. In the meantime, SHO and DSP also reached the place of occurrence. During inquiry, it was found that the report lodged by Raj Kumar was correct and so the cross-case was registered against accused under Sections 323, 452, 148, 149 IPC. Thereafter, Investigating Officer reached the place of occurrence i.e. house of Raj Pal and Rishi Pal. There, he found the ladies in the house. In Criminal Appeal No.S-1062-SB of 2008 [4] the meantime, DSP and SHO also reached there. The place was got photographed. Investigating officer inspected the spot. On the next day i.e. 07.12.2004, he was present at the place of occurrence when a team from Forensic Science Laboratory arrived there. The Incharge, Forensic Science Laboratory team, also inspected the spot. Thereafter, Investigating Officer lifted four empties, one live cartridge of 7.65 bore, one woolen shawl of Rishi Pal and five pairs of hawai chappals. Polythene covering bitoras were blood stained. Investigating Officer took two pieces of polythene, which were blood stained, and one monkey cap of Gajraj Singh. One wooden piece having blood stains was also lifted from the spot. All the articles were taken into police possession after preparing separate sealed parcels. On 08.12.2004, he collected x-ray reports of Rishi Pal, Raj Kumar and Raj Pal. Since there were fractures on their persons, therefore, Investigating Officer added Section 325 IPC in the FIR. Thereafter, Investigation was handed over to Sub Inspector, Kuldeep Singh. Statements of witnesses were recorded. After necessary investigation, challan against the accused was presented before the Court.
On presentation of challan, copies of challan and other documents were supplied to accused under Section 313 Cr.P.C. Finding a prima facie case against the accused, they were charge- sheeted for the offences under Sections 452, 457, 148, 323, 325 read with Section 149 IPC to which they pleaded not guilty and Criminal Appeal No.S-1062-SB of 2008 [5] claimed trial.
The prosecution, in support of its case, examined PW1 Raj Kumar, who mainly deposed that on 03.12.2004 at about 10:30 p.m., when he heard the noise of abuses, he came out of his house. Then he heard the noise of firing. He reached the spot. Firing was going on at the house of Raj Pal from outside the house. He saw Mahabir, who was armed with country made pistol. Mahabir was also having an iron rod in other hand. He also saw Bharat Singh, who was also firing with country made pistol. He further deposed that Gajraj, Anil and Devender were armed with lathis and Satish and Girdhari were armed with iron rods. Said persons fired and gave push to the door of Rajpal's house and entered his house while abusing. He (PW1) also entered the house just behind the accused. Mahabir accused gave iron rod blow on the head of Rishi Pal; Bharat Singh gave iron rod blow on the left ankle of Rishi Pal; Satish gave iron rod blow on the right shoulder of Rishi Pal and Girdhari gave rod blow on the head of Rishi Pal. Anil Kumar gave lathi blow on the chest of Rishi Pal when he fell down. Girdhari also gave iron rod blow on the left side of the back of Rishi Pal. When the accused were causing injuries to Rishi Pal, on hearing the alarm and shrieks, Raj Pal came out of the house to save Rishi Pal. Then all the accused pounced upon Raj Pal and shouted that he should also be finished. Raj Pal started running towards bitora to save himself. Gajraj gave a lathi blow on the head of Raj Pal. Raj Pal warded of Criminal Appeal No.S-1062-SB of 2008 [6] that blow with his hand and consequently injury was caused on the dorsum of the palm of right hand. Girdhari gave iron rod blow on the forehead of Raj Pal. Satish gave iron rod blow on the head of Raj Pal but the same hit on the left elbow region of Raj Pal. Anil gave lathi blow thrust-while on the mouth of Raj Pal and consequently his two teeth were broken. Bharat Singh accused gave iron rod blow on the head of Raj Pal. Consequently, Raj Pal became giddy and fell down on the ground. Accused Mahabir gave iron rod blow on the person of Raj Pal while he was lying on the ground and that injury was caused on the right side of the back of Raj Pal. When the accused were causing injuries to Raj Pal, who was crying for his help, he (PW1) and wife of Raj Pal came to the spot. Smt.Mukesh wife of Raj Pal fell on Raj Pal to save him but accused Anil caused injuries to Mukesh on her back. Accused Bharat Singh gave iron rod blow on her hip when she was lying. Satish gave lathi blow on the wrist of her right hand. This witness deposed in detail regarding the injuries given by all the accused. Then Raj Pal in order to save himself fired in the air with his pistol. Four or five rounds were fired in the air by him. Then Devinder caught hold of Raj Pal with his hands from the front side and then Devinder from the front side and Mahabir from back side tried to snatch that pistol from him. He (PW1) also deposed that during that scuffle, the pistol went off and that shot, he did not know, hit whom. Then these accused were taking away Girdhari by taking him physically towards outside and the fight Criminal Appeal No.S-1062-SB of 2008 [7] stopped. Then all the injured persons came to Kalyani Hospital, Gurgaon. He (PW1), Raj Pal and Rishi Pal were admitted in Kalyani Hospital, for treatment. They were medically examined. Police recorded his statement. PW2 Raj Pal, who is also stated to be injured witness, mainly deposed that on 03.12.2004 at about 10:30 p.m., he was in his house and was lying on cot. He heard that Gajraj, Girdhari and others were abusing in the name of daughter to his father and Raj Singh, his brother. He heard the noise from their gate being opened and simultaneously, he also heard the noise of gun shots. He mainly deposed regarding the occurrence and injuries given by the accused. He further deposed that Girdhari gave a rod blow on his forehead etc. PW3 Dr.Shailza Aggarwal mainly deposed regarding preparing of x-ray reports of Raj Pal, Rishi Pal and Raj Kumar and as per x-ray report of Raj Pal, x-ray of right hand with forearm shows fracture of fifth metacarpal. In cross-examination, she stated that she did not take x-rays. She cannot tell who took the x- rays of aforesaid persons and when. She has not gone through the MLRs of aforesaid patients. She deposed that x-ray of left foot of Rishi Pal shows fracture of fifth metatarsal. PW4 Balwan Singh, CID Inspector, deposed regarding preparing of report under Section 173 Cr.P.C. in this case. PW5 Sub Inspector Kuldeep Singh mainly deposed regarding arresting accused Mahabir Singh in this case. PW6 ASI Rajender Singh, Investigating Officer, deposed regarding the investigation of the case. PW7 Head Constable Hukum Singh Criminal Appeal No.S-1062-SB of 2008 [8] deposed that on 01.07.2005, on receipt of information, he reached in Court, where accused Bharat Singh had surrendered and after permission of the Court, he formally arrested accused Bharat Singh. PW8 Dr.Arun medico legally examined Rishi Pal on 03.12.2004 and found the following injuries on his person:-
1. CLW on parietal region measuring 6 cm x .5 cm
2. CLW on parietal regions measuring 4 cm x .5 cm
3. Tenderness chest left side.
4. Bruise and contusions on left lateral chest wall.
5. Tenderness and pain left foot.
On the same day, he also medico legally examined Raj Pal and found the following injuries on his person:-
1. ? querry traumatic dislocation of lower incisor.
2. CLW on right forehead measuring 2.5 x 1 cm.
3. CLW on right parito temporal region.
4. Pain and swelling right wrist.
5. Pain and swelling left elbow.
On the same day, he also medico legally examined Raj Kumar and found one injury i.e. CLW on right parital region measuring 3 cm x .5 cm.
PW9 Dr.Subhash Khanna deposed that on 03.12.2004 Rajpal, Rishipal and Raj Kumar were admitted in emergency ward of Kalyani Hospital, Gurgaon. He also proved the treatment charts Ex.PX, Ex.PY and Ex.PZ of Raj Pal, Rishi Pal and Raj Kumar respectively.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and confronted with the Criminal Appeal No.S-1062-SB of 2008 [9] evidence of prosecution. The accused denied the correctness of evidence and pleaded themselves as innocent. Accused Mahavir also pleaded that he is innocent. In fact on 03.12.2004 at about 8:30/9:00 p.m., Bharat Singh alongwith his brother Girdhari and Anil were standing near the gate of house of Girdhari. Then Rishi, Raj Singh, Rajinder and Raj Pal sons of Lakhmira came there armed with pistol, katta and lathis. Raj Singh was armed with licenced pistol, Rishi was armed with kata, Rajender and Raj Pal were armed with lathis. Raj Singh fired from his pistol at Girdhari which hit on his chest and due to that he fell down. Raj Singh fired second shot towards Bharat Singh on his left shoulder. On noise, he and Gaj Raj came there and when he tried to lift Girdhari, Rishi fired from his country made pistol on him and he fired for second time on Gaj Raj. Rajinder and Raj Pal gave lathi blows to Gaj Raj. Rajinder Singh ASI, who is the Investigating Officer in this case and was also the Investigating Officer in the murder case, visited the village on 04.12.2004 and prepared correct site plan on 04.12.2004 but lateron he conspired with Raj Singh etc. after taking bribe and he prepared incorrect site plan on 06.12.2004 and false recovery entries were made. Raj Singh ASI intentionally did not submit challan within 90 days in murder case despite the fact that regular bail application of Rishi Pal was dismissed and Rajinder Singh ASI got released accused in murder case intentionally. It is a false case and occurrence took place in front of the house of Girdhari. Occurrence Criminal Appeal No.S-1062-SB of 2008 [10] did not take place in the house of Raj Pal. Accused Bharat Singh, Anil and Gajraj took the same plea as taken by accused Mahavir. Accused Devender and Satish pleaded that they are innocent and have been falsely implicated in this case.
In defence, the accused examined DW1 R.K.Sachdev, who mainly deposed regarding conducting the postmortem examination on the dead body of Girdhari and found the following injury on his person:-
"Fire arm injury and entry wound on the chest on right side ¾ x ¾ cm in size. No tattooing was present around the wound. Vertibra 8th and 9th were erroded. The track of bullet was directed downward, medial and backward. The bullet passed through the skin, mussle, right lung, right ventrical of heart and was found lodged behind vertibral column between 8th and 9th vertibra. Right puller cavity was filled with blood. The fire arm wound was 11 cm from the midline, 6 cm about the nipple and 14 cm from the shoulder."
In the opinion of the doctor, the cause of death in this case was due to shock and haemorrhage caused by fire arm injury. Injury was ante-mortem in nature and sufficient to cause death in normal course of life. DW2 Head Constable Rambir brought the FIR register pertaining to FIR No.321 dated 04.12.2004 registered under Sections 302, 324, 323, 506, 34 IPC and under Section 25/27/59 of Criminal Appeal No.S-1062-SB of 2008 [11] the Arms Act at Police Station Sohna and proved the copy of said FIR Ex.DD. DW3 Dr.Yoginder Singh mainly deposed that on 03.12.2004, he medico legally examined Bharat Singh and found the following injuries on his person:-
1. A cut injury in oblique direction on the inner part of the thigh 17 cm from the knee joint. Size of injury 7 x .3 x . 5 cm with fresh bleeding present. Patient was advised x-ray for left leg AP and lateral view. Nature of weapon sharp. Duration within 12 hours.
2. A contusion of 5 cm x 4 cm over the back of chest corresponding to 5th and 6th rib inter-coastal space 10 cm from the mid-line. X-ray was advised for chest and PA view. Surgeon's opinion was sought.
Correspondent hole present in the vest.
On the same day, he also medico legally examined Gajraj and found the following injuries on his person:-
1. A lacerated wound of .4 cm x .3 cm over the middle part of the right ear pinna lateral end with clotted blood was present. Corresponding area was having singing, burns and tattooing present over the adjoining area.
Kind of weapon fire arm. Probable duration of injury within 12 hours.
2. A swelling of 5 cm x 4 cm over the lateral part of right hand. Kind of weapon was blunt. X-ray was advised Criminal Appeal No.S-1062-SB of 2008 [12] for right hand AP lateral view. Probable duration of injury was within 12 hours.
He also medico legally examined Mahabir on the same day and found the following injuries on his person:-
"An abraded area of 3 x 2 cm over the medial aspect of left leg. Fresh bleeding was present. X-ray left leg. AP lateral view was advised. Probable duration of injury within 12 hours."
He also proved medico legal reports Ex.DE, Ex.DF and Ex.DG of Bharat Singh, Gajraj and Mahabir respectively. DW4 Dr.Virender Nagpal conducted the x-ray examination of the dead body of Girdhari.
The trial Court, after appreciation of evidence, convicted and sentenced appellants-accused Mahabir, Satish, Bharat Singh, Gajraj and Anil and acquitted Devender as stated above.
At the time of arguments, learned counsel for the appellants contended that the occurrence took place at about 10:00 p.m. on 03.12.2004 and the cross-case was registered at 2:40 p.m. on 04.12.2004 on the statement of Raj Kumar. Learned counsel for the appellants contended that this delay has been utilized to falsely implicate the appellants-accused and to concoct a false version. The injuries, as per doctor, were superficial in nature. The injured persons were conscious. There is no explanation regarding delay. Learned counsel for the appellants further contended that Raj Kumar Criminal Appeal No.S-1062-SB of 2008 [13] in his statement (Ex.PA) recorded in cross-version, has not given the detailed version, whereas while appearing in the Court as PW1, he has made so many improvements and has given the detailed version which itself shows that he has made material improvements in his version and he was confronted with his statement Ex.PA. Therefore, there is material improvements in the statement of PW1 Raj Kumar recorded in Court. Learned counsel for the appellants further contended that no weapon was recovered from any of the accused. Injuries on the persons of accused and murder of Girdhari caused by the complainant party has not been explained. The injuries caused on the complainant side are superficial injuries. They were not medico legally examined in Government hospital. They were medico legally examined in a private hospital. X-ray films were also not produced to prove injuries being grievous. Therefore, the offence under Section 325 IPC is also not proved. Learned counsel for the appellants further contended that the investigation in the present case is tainted one. When the cross-version was got recorded then why the Investigating Officer did not take the articles into police possession on the same day. The Investigating Officer also visited the place of occurrence on 05.12.2004 but in chief-examination, he tried to conceal that fact. When in cross-examination, he was asked regarding his visit at the place of occurrence on 05.12.2004 then he admitted the same. The Investigating Officer also visited the place of occurrence on 06.12.2004 but the articles were taken into police Criminal Appeal No.S-1062-SB of 2008 [14] possession on 07.12.2004 which shows that place of occurrence has been changed to give the benefit to complainant party in this cross case. Learned counsel for the appellant further contended that the version of the prosecution is otherwise improbable. The occurrence is of 03.12.2004 and the expert team had visited the site on 07.12.2004 and taken the empties, chapples, cap etc. from the spot which shows that all this has been done to help the complainant party in this cross case and also in the main murder case. Therefore, learned counsel for the appellants contended that appeal should be accepted.
On the other hand, learned Asstt. Advocate General, Haryana, contended that the accused are aggressors and caused injuries to complainant party by entering into their house and they have been rightly convicted and sentenced. He further contended that appeal having no merit should be dismissed.
We have heard learned counsel for the appellant and learned Asstt. Advocate General, Haryana and with their assistance, we have gone through the evidence on record minutely and carefully.
From the record, we find merits in the contentions of learned counsel for the appellants. Firstly, perusal of the record shows that the occurrence took place at about 10:00 p.m. on 03.12.2004. All the injured persons in this cross case have not received any serious injuries. As per doctor, they were conscious and were having superficial injuries but they did not report the matter Criminal Appeal No.S-1062-SB of 2008 [15] to the police at the earliest. The statement of Bharat Singh in the main case was recorded at about 3:10 a.m. on 04.12.2004 whereas in the present case, the cross-version was recorded on the statement of Raj Kumar at 2:40 p.m. on 04.12.2004. In view of the evidence on record, delay becomes more important as it is a cross case of FIR No.321 dated 04.12.2004 under Section 302 IPC etc. The witnesses tried to explain the delay by taking plea of unconsciousness etc. but in view of the statement of doctor and the injuries on their persons, the plea is false. Again we find that the cross version was got recorded by Raj Kumar by making his statement Ex.PA to ASI Rajinder Singh but when Raj Kumar appeared in the Court as PW1, he made material improvements by giving particulars of each and every injury, weapon and the accused. Therefore, we find that PW1 Raj Kumar, while making his statement in the Court, made material improvements. No weapon of offence was recovered from any of the accused by the Investigating Officer. Keeping in view the cross- examination of the doctor that injuries are mainly superficial injuries and in view of the fact that injured persons of this cross-case have not got admitted themselves in civil hospital and there being no x-ray films produced on record, a reasonable doubt exists in the prosecution version. In the absence of x-ray films, no injury can be held as grievous. PW3 Dr.Shailza Aggarwal in cross-examination has stated that she did not take x-rays. She cannot tell who took the x-rays and when. She has not gone through the medico legal reports Criminal Appeal No.S-1062-SB of 2008 [16] of injured persons. She cannot say whether the x-rays co-relate with the medico legal reports of injured persons. The possibility of fracture being caused on the person of Raj Pal and Rishi Pal are result of fall, cannot be ruled out. She cannot comment how old the injuries are. She has also stated that Kalyani Hospital is a private hospital. This doctor has given the report only after seeing the x-ray films but she knows nothing. She has not conducted x-rays nor she has gone through the medico legal reports. Therefore, no value can be attached to her opinion. PW8 Dr.Arun in cross examination has stated that he has not mentioned the duration of the injuries in the medico legal reports of any of the injured. He has also not mentioned the dimension of injury No.3 on the person of Rajpal. He has not mentioned the depth of any injury in the medico legal reports. He has also stated that Kalyani Hospital is a private hospital. PW9 Dr.Subhash Khanna, in cross-examination, has stated that both the injuries on the person of Raj Pal and injuries on the persons of Raj Kumar and Rishi Pal are superficial. There is no explanation why injured persons have not got them medically examined from civil hospital. Further, from the evidence on record, we find that on the accused side, one person namely Girdhari was murdered and the other three accused Bharat Singh, Gajraj and Mahabir received injuries, as proved by DW3 Dr.Yoginder Singh but there is no explanation in the statements of PWs how they received injuries. There is nothing on the record that the accused are aggressor in the Criminal Appeal No.S-1062-SB of 2008 [17] present case. The version that when accused grappled with Raj Pal and tried to snatch pistol, in that grappling one fire went off and Girdhari fell down, cannot be believed. There was no tattooing around the wound which means that Girdhari was fired from a distance and not from a close range. Next, we find that in cross- examination PW2 Raj Pal stated that he was not fully unconscious. Till he reached to Kalyani Hospital, he was conscious. After his admission, he became unconscious and gained consciousness on the next day. The doctor (PW) has given the alleged history of assault while sleeping by some people but in cross-examination PW2 Raj Kumar has stated that he did not tell the doctor that he was injured while he was sleeping. He (PW2) has also stated that MLR does not bear his signatures. He also admitted that on the way to hospital a police post is there but he did not report the matter. All this cross-examination shows that a reasonable doubt exists in the prosecution version. The Investigating Officer, who recorded the statement of Raj Kumar on 04.12.2004 at 2:40 p.m., has concealed his visit on the spot on 05.12.2004. In cross-examination, he admitted that he prepared site plan Ex.DA on 05.12.2004. His version that lateron he met various respectable persons and on inquiry, it had come out that occurrence took place at another place, cannot be believed. No person was examined, on whose version, he changed the place of occurrence. His version that he did not take into police possession empties etc. from the place of occurrence on Criminal Appeal No.S-1062-SB of 2008 [18] 5th or 6th December, 2004 also creates reasonable doubt in the prosecution version regarding the place of occurrence.
As already discussed, the murder of Girdhari Lal by the complainant side and causing of injuries to three of the accused have not been explained which further creates reasonable doubt in the prosecution version. Therefore, from the above discussion, we find that the prosecution has failed to prove the cross-version while leading cogent evidence beyond doubt.
Therefore, from the aforesaid discussion, we find merit in the appeal and the same is accepted. Appellants are acquitted of the charges framed against them.
(JASBIR SINGH) (INDERJIT SINGH)
JUDGE JUDGE
30.01.2013
mamta