Punjab-Haryana High Court
Kartar And Others vs State Of Haryana on 28 August, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.D-421-DB of 2010
.....
Date of decision:28.8.2012
Kartar and others
...Appellants
v.
State of Haryana
...Respondent
....
Coram: Hon'ble Mr. Justice Satish Kumar Mittal
Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. Sanjay Kaushal, Advocate with Mr. Apoorv Garg, Advocate
for appellant No.1.
Mr. P.R. Yadav, Advocate for appellants No.2 and 3.
Mr. J.S. Yadav, Advocate for appellant No.4.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the complainant.
......
(2) Criminal Appeal No.D-422-DB of 2010
.....
Suresh
...Appellant
v.
State of Haryana
...Respondent
....
Present: Mr.Surender Deswal, Advocate
for the appellant.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
Cr. Appeal Nos.D-421-DB of 2010 etc.
[2]
Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the complainant.
......
(3) Criminal Appeal No.D-423-DB of 2010
.....
Harbans alias Banti
...Appellant
v.
State of Haryana
...Respondent
....
Present: Mr. R.S. Rai, Senior Advocate with Mr. D.S. Brar, Advocate for
the appellant.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the complainant.
......
(4) Criminal Appeal No.D-424-DB of 2010
.....
Vijay
...Appellant
v.
State of Haryana
...Respondent
....
Present: Mr. R.S. Rai, Senior Advocate with Mr. D.S. Brar, Advocate for
the appellant.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the complainant.
......
(5) Criminal Appeal No.D-426-DB of 2010
.....
Cr. Appeal Nos.D-421-DB of 2010 etc.
[3]
Suresh
...Appellant
v.
State of Haryana
...Respondent
....
Present: Mr. R.S. Rai, Senior Advocate with Mr. D.S. Brar, Advocate for
the appellant.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the complainant.
......
(6) Criminal Appeal No.D-436-DB of 2010
.....
Bahadur Singh and another
...Appellants
v.
State of Haryana
...Respondent
....
Present: Mr. R.S. Cheema, Senior Advocate with Ms. Tanu Bedi,
Advocate for the appellants.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the complainant.
......
(7) Criminal Appeal No.D-498-DB of 2010
.....
Satbir and others
...Appellants
v.
State of Haryana
...Respondent
....
Cr. Appeal Nos.D-421-DB of 2010 etc.
[4]
Present: Mr. R.S. Cheema, Senior Advocate with Ms. Tanu Bedi,
Advocate for the appellants.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the complainant.
......
(8) Criminal Revision No.1456 of 2010
.....
Raj Kumar alias Raju
...Petitioner
v.
Kartar Singh and others
...Respondents
....
Present: Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the petitioner.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
......
Inderjit Singh, J.
This judgment will dispose of above seven criminal appeals and one criminal revision petition i.e. Criminal Appeal No.D-421-DB of 2010 filed by Kartar, Rajesh, Suraj Bhan and Om Parkash; Criminal Appeal No.D-422-DB of 2010 filed by Suresh (who has also filed Criminal Appeal No.D-426-DB of 2010); Criminal Appeal No.D-423-DB of 2010 filed by Harbans alias Banti; Criminal Appeal No.D-424-DB of 2010 filed by Vijay; Criminal Appeal No.D-436-DB of 2010 filed by Bahadur Singh and Yogesh alias Yogender and Criminal Appeal No.D-498-DB of 2010 filed by Satbir, Jiya Ram and Raj Kumar alias Bittu and Criminal Revision No.1456 of Cr. Appeal Nos.D-421-DB of 2010 etc. [5] 2010 filed by complainant-petitioner Raj Kumar alias Raju as these arise out of the same judgment and order dated 25.3.2010 and 29.3.2010 passed by the learned Additional Sessions Judge, Gurgaon.
These appeals and revision petition have been filed against the judgment and order dated 25.3.2010 and 29.3.2010 passed by the learned Additional Sessions Judge, Gurgaon, whereby accused-appellants Kartar, Rajesh, Suraj Bhan, Om Parkash, Bahadur Singh, Yogesh alias Yogender, Satbir, Raj Kumar alias Bittu, Vijay and Jiya Ram have been held guilty for the offences under Sections 148, 323, 506, 285, 302 read with Section 149 of the Indian Penal Code (`IPC' - for short). Accused-appellants Jiya Ram, Raj Kumar alias Bittu, Suresh and Harbans alias Banti have also been held guilty for the offence under Section 302 IPC. Accused-appellant Raj Kumar alias Bittu has also been held guilty for the offence under Section 25 of the Arms Act. However, accused Kamlesh and Sonu alias Sanjay have been acquitted of the charges levelled against them by giving the benefit of doubt to them. Appellants Kartar, Rajesh, Suraj Bhan, Om Parkash, Bahadur Singh, Yogesh alias Yogender, Satbir, Raj Kumar alias Bittu, Vijay and Jiya Ram have been sentenced to undergo rigorous imprisonment for one year each and to pay a fine of `500/- each and in default of payment of fine to further undergo simple imprisonment for one month for the offence under Section 148 IPC. They have also been sentenced to undergo rigorous imprisonment for three months each and to pay a fine of `200/- each and in default of payment of fine to further undergo simple imprisonment for fifteen days for the offence under Section 285 IPC. They have also been sentenced to undergo rigorous imprisonment for three months each and to Cr. Appeal Nos.D-421-DB of 2010 etc. [6] pay a fine of `200/- each and in default of payment of fine to further undergo simple imprisonment for fifteen days for the offence under Section 323 IPC. They have also been sentenced to undergo rigorous imprisonment for one year each and to pay a fine of `500/- each and in default of payment of fine to further undergo simple imprisonment for fifteen days for the offence under Section 506 IPC. They have also been sentenced to undergo imprisonment for life each and to pay a fine of `25,000/- each and in default of payment of fine to further undergo simple imprisonment for two years for the offence under Section 302 IPC. Appellants Jiya Ram, Raj Kumar alias Bittu, Suresh and Harbans alias Banti have also been sentenced to undergo imprisonment for life each (for the commission of murder of Parvesh) and to pay a fine of `25,000/- each and in default of payment of fine to further undergo simple imprisonment for two years for the offence under Section 302 IPC. Appellant Raj Kumar alias Bittu has also been sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1,000/- and in default of payment of fine to further undergo simple imprisonment for one month for the offence under Section 25 of the Arms Act. All the substantive sentences of imprisonment have, however, been ordered to run concurrently.
The brief facts of the prosecution case are that the FIR (Ex.PC) in the present case has been registered on the statement of Raj Kumar alias Raju-complainant, who stated that they are four brothers and his elder brother Ram Avtar used to live outside the village in his own house. Other three brothers along with their father reside in the house constructed in the village. On 18.9.2006 at about 9.00 p.m., nephew of the complainant, Cr. Appeal Nos.D-421-DB of 2010 etc. [7] namely, Vinod Kumar came to meet them and on the way he was abused by Kartar and he was also given beating. Vinod Kumar told the complainant and Karambir about the quarrel and then he and Karambir went to Kartar for making a complaint. When they reached near the house of Samay Singh, Kartar, Rajesh, Suraj Bhan, Om Parkash sons of Mansa Ram each armed with rod, Kamlesh wife of Zile Singh, Bahadur Singh son of Bharat Singh armed with `Danda' each, Sonu, Vijender (Yogender alias Yogesh) and Satbir armed with `Lathi' each, Jiya Ram, Bittu, Vijay having pistols were coming towards their house. On seeing them, Kartar gave `Lalkara' and then he gave a blow of rod on the right side of the head of complainant. The complainant further stated that Rajesh gave a rod blow on his head. Om Parkash gave a blow of rod on his left wrist. Kamlesh gave a `Danda' blow on his waist and left foot. When his brother Karambir tried to rescue him, he was also given injuries by Suraj Bhan, Bahadur Singh and Vijay. When they raised alarm, his father Amar Singh and his brother Suresh came at the spot running and the accused also gave injuries to them. Jiya Ram, Bittu and Vijay fired shots and gave threatening to be murdered. After giving injuries to them, all went to their respective houses. The injured were taken to Umkal Hospital by Pawan Kumar and Vinod for treatment. The complainant next stated that they were standing outside Umkal Hospital and his nephew Parvesh and Vikas came to see them. In the meantime, one vehicle came in front of the hospital from main road. Jiya Ram, Bittu, and Vijay Singh having pistols alighted from that vehicle and fired shots on his nephew Parvesh. Parvesh ran away towards the road to save himself and fell down. The complainant also stated that they entered into the hospital.
Cr. Appeal Nos.D-421-DB of 2010 etc. [8] His nephew Parvesh was taken away by Vinod Kumar and Vikas to Kalyani Hospital, Gurgaon for treatment. The complainant came to know from Vikas that Parvesh had died due to fire arm injuries. The reason of enmity given by the complainant was that Vinod was coming to meet them at their house on his motorcycle. On the way, there was a fresh cement laid on which he did not stop even on asking, due to which injuries were given to them and Parvesh was murdered. On receiving the information regarding the admission of injured Raj Kumar etc. in Umkal Hospital, Gurgaon from Police Post DLF, SI Surinder Singh along with Police officials after taking `Ruqa' from Police Post DLF reached at hospital and after taking the opinion of the doctor, statement of injured Raj Kumar was recorded, on the basis of which FIR was registered.
PW-15 Dr. B.B. Aggarwal conducted post-mortem on the dead body of Parvesh on 19.9.2006 and found the following injuries:-
"1. Fire arm entry wound and surrounding blackening, inverted margins of left side chest back of chest. Round in shape 7 mm in diameter, it is present 1 & 1/2" from mid line on mid dorsal region.
2. Fire arm entry wound on left portion - Temporal area -
surrounding blackening. There is underlying fracture.
3. Fire arm exit wound one Rt. parietal area with averted margins and underlying fracture on bone and haematoma.
4. Abrasion over Rt. shoulder which is 2 cm x 1 cm with dried blood.
5. A large contusion of size 7" x 5" bluish on Rt. side of Cr. Appeal Nos.D-421-DB of 2010 etc. [9] abdomen, laterally.
6. An abrasion one Rt. leg which is 3 cm x 2 cm.
7. An abrasion on Rt. knee which is 2 cm x 2 cm."
The doctor gave the cause of death in this case due to extensive injury to brain and injury to heart. Injuries were ante-mortem in nature and sufficient to cause death in normal course. The doctor also deposed regarding bullet Ex.P.26 recovered from the dead body of Parvesh.
PW-21 Dr. K.K. Singh, Umkal Hospital, Gurgaon medico- legally examined R. K. Yadav (Raj Kumar) son of Amar Singh on 18.9.2006 at 11.20 p.m. and found the following injuries:-
"Big clean lacerated wound of size 5 cm x 3 cm was present on mid scalp with giddiness and profuse bleeding."
On the same day, he also medico-legally examined Vikas Yadav and found the following injuries:-
"Multiple abrasions with thoracic pain (back), there was pain and swelling on left elbow."
On the same day, he also medico-legally examined Karambir and found the following injuries:-
"Clean lacerated wound of size 5 cm x 3 cm was found on mid scalp with haematoma. Injury was caused by blunt weapon."
On the same day, he also medico-legally examined Amar Singh and found the following injuries:-
"Haematoma was present on the forehead towards right side with CLW with giddiness. Clean lacerated wound of size 4 cm x 2 cm. Injury was caused by blunt weapon."
Cr. Appeal Nos.D-421-DB of 2010 etc. [10] On 19.9.2006, Amar Singh was shifted to Ram Manohar Lohia Hospital, Delhi and he was operated as an emergency on 19.9.2006. Post operatively patient improved a little but again his condition deteriorated and developed cardiac respiratory arrest on 26.9.2006 and the patient could not be revived and Amar Singh was declared dead at 4.50 a.m. on 26.9.2006. PW-20 Dr. Narender Mal, Senior Resident, who was posted in RML Hospital, Delhi on that day proved his death summary.
On 18.9.2006 at about 11.55 p.m., Dr. K.K. Singh medico- legally examined Suresh Yadav and found the following injuries:-
"There was alleged history of assault. Pain and swelling was present below knee on right leg. Patient was not able to bear weight."
On the same day, he medico-legally examined Ram Avtar son of Amar Singh and found the following injuries:-
"There was alleged history of assault. Clean lacerated wound of size 5 cm x 3 cm on mid scalp, 4 cm x cm on left forehead with retrosternal abrasions and chest pain."
The Investigating Officer SI Surender Singh after registration of the case went to Village Kanhai along with Vikas Yadav at the house of complainant. Kavita Yadav was found present there. On her demarcation, he prepared rough site plan Ex.PR. Thereafter, he lifted blood stains from two places with the help of cotton and four empty cartridges were also lifted from the spot. After converting the same into sealed parcel, sealed with the seal `SC', these were taken into possession vide recovery memo Ex.PR/1. He also photographed the place of occurrence. He recorded the statements Cr. Appeal Nos.D-421-DB of 2010 etc. [11] of the witnesses under Section 161 Cr.P.C. in the village. Thereafter, he again went to Umkal Hospital where second occurrence had taken place. On the demarcation of Vikas Yadav and in the presence of Raj Kumar- complainant, he prepared the rough site plan of the second place of occurrence Ex.PS. He also lifted blood stained earth and one empty shell from the said place of occurrence and taken into possession after converting them into sealed parcels. He recorded the statement of injured Vikas Yadav, Karambir, Suresh and Ram Avtar. Thereafter, he again went to Village Kanhai and one damaged vehicle i.e. white Tata Safari having temporary number was taken into police possession. Then the Investigating Officer received information that some persons were admitted in Shivam Hospital in injured condition and he went there and recorded the statement of Kartar and sent the same to Police Post to enter the same in the DDR. Thereafter, he went to Kalyani hospital and conducted inquest proceedings on the dead body of Parvesh. On 20.9.2006, he arrested accused Satbir, Rajesh, Suraj Bhan and Vijay. On 22.9.2006, Satbir, Rajesh and Suraj Bhan were interrogated and on interrogation Satbir suffered disclosure statement regarding kept concealing one `Lathi' and got recovered the same. Suraj Bhan suffered disclosure statement regarding concealing of one iron rod, in pursuance of which he got recovered the same. Rajesh suffered disclosure statement regarding concealing an iron rod in pursuance of which he got recovered the same. These weapons were taken into Police possession and rough site plans of the places of recovery were also prepared. On 23.9.2006, accused Vijay was interrogated. He suffered disclosure statement regarding concealing one `Lathi' and in pursuance of that Cr. Appeal Nos.D-421-DB of 2010 etc. [12] statement he also got recovered the same which was taken into Police possession. He also prepared rough site plan of the place of recovery. On 25.9.2006, he arrested accused Kartar, Om Parkash, Yogender and Raj Kumar alias Bittu. On 26.9.2006, he received information about the death of Amar Singh in Ram Manohar Lohia Hospital, New Delhi. PW-19 Dr. Atul Murari, Director Professor & Head of Department of Forensic Medicine, Lady Hardinge Medical College and Associated Hospitals, New Delhi mainly deposed that Dr. Avinash Kumar Singh, who was working as Junior Resident in the Department of Forensic Medicine, Lady Hardinge Medical College and Associated Hospitals, New Delhi expired during service on 10.8.2008 and his hand-writing and signatures on post-mortem report (Ex.PL) of Amar Singh was proved by PW-19 Dr. Atul Murari. On 27.9.2006, accused-Kartar, Om Parkash and Yogender were interrogated. On interrogation, Kartar suffered disclosure statement that he had kept concealed one rod, in pursuance of which the same was got recovered. Om Parkash suffered disclosure statement regarding concealing one iron rod near Subhash Chowk, in pursuance of which he got recovered the same. Yogender suffered disclosure statement regarding concealing one `Lathi' near Bharat Petrol pump, in pursuance of which he got recovered the same. These were taken into Police possession vide recovery memos. On 30.9.2006, accused Raj Kumar alias Bittu was interrogated and he suffered disclosure statement that he kept concealed one pistol and as per his disclosure statement he got recovered the said pistol. Sketch of the same was prepared which was taken into Police possession vide recovery memo and site plan was also prepared. On 21.7.2008, he prepared supplementary Cr. Appeal Nos.D-421-DB of 2010 etc. [13] challan of accused Sonu. On 19.9.2006, he moved an application before the Doctor at Umkal Hospital, Gurgaon regarding the fitness of the injured admitted in the hospital. He recorded the statement of injured Raj Kumar- complainant.
The Investigating Officer on cross-examination deposed that he received telephonic message that few persons were admitted in Shivam Hospital. He went there and he came to know that Kartar, Rajesh, Satbir, Pabita wife of Kartar etc. were admitted in the hospital. He collected six MLRs of the injured and the `Ruqas' from the hospital. He had gone through the MLRs of the injured and from the same, it was revealed that Sanjay and Yogender had suffered bullet injuries and that factum was also recorded by him in his police proceedings even to the effect that the bullet was embedded in the body of Yogender. He also deposed that Rajesh had suffered sharp edged injury. He also deposed that he came to know that few of the accused had suffered head injuries. He handed over the investigation of this case on 10.10.2006. After completion of investigation, the challan was filed in the Court.
On presentation of challan, the trial Court finding prima facie charges against accused-appellants Kartar, Rajesh, Suraj Bhan, Om Parkash, Kamlesh, Bahadur Singh, Yogesh, Satbir, Raj Kumar alias Bittu, Vijay, Sonu and Jiya Ram framed charges for the offences under Sections 148 and 323, 307, 506, 302, 285 read with Section 149 IPC; against accused-appellants Raj Kumar alias Bittu, Jiya Ram, Harbans and Suresh under Sections 302 and 307 read with Section 34 IPC and accused-appellant Raj Kumar alias Bittu under Section 25 of the Arms Act. The accused pleaded not guilty to Cr. Appeal Nos.D-421-DB of 2010 etc. [14] above charges and claimed trial.
The prosecution to prove its case, examined PW-1 Surender Rana, Reader to District Magistrate, who mainly deposed regarding the sanction order (Ex.PA) issued by the District Magistrate. PW-2 Rama Nand, retired ASI mainly deposed regarding registration of FIR Ex.PC on the basis of writing Ex.PB. PW-3 Constable Anil Kumar is a formal witness, who tendered in evidence his affidavit Ex.PW3/A. PW-4 Constable Rambir was with SI Surender Singh on 19.9.2006 and he deposed regarding the disclosure statements made by various accused and the recoveries got effected as per disclosure statements. PW-5 Raj Kumar alias Raju is Photographer, who deposed regarding photographs Ex.P.4 to P.14. PW-6 Inspector Satpal, SHO mainly deposed regarding recording the statement of Draftsman Sharwan Kumar and Head Constable Monal Lal and also regarding preparing of final report under Section 173 Cr.P.C. PW-7 Constable Anil Kumar mainly deposed regarding delivery of special report to Illaqa Magistrate. PW-8 A. Laxmi, Record Keeper, Ram Manohar Lohia Hospital, New Delhi mainly deposed regarding the record of X-ray of Amar Singh. PW-9 Sharwan Kumar, Draftsman deposed regarding preparing of scaled site plan Ex.PJ by him. PW-10 HC Mohan Singh, PW-11 ASI Rajender Singh and PW-12 EHC Mukesh Kumar are formal witnesses, who tendered in evidence their affidavits Exs.PW10/A, PW11/A and PW12/A respectively.
PW-13 Vinod Kumar Yadav deposed as per prosecution version. He deposed that to lodge a protest regarding beating given to him, he along with his uncle Raj Kumar, Karambir, Suresh, his father Ram Avtar Cr. Appeal Nos.D-421-DB of 2010 etc. [15] and his grand-father Amar Singh proceeded towards the house of Kartar. When they reached in front of the house of Samay Singh, then Kartar Singh, Suraj Bhan, Om Parkash, Rajesh having iron rods, Kamlesh, Bahadur, Vijay having `Danda' each in their hands, Yogender and Satbir having `Lathi' each in their hands, Jiya Ram, Raj Kumar alias Bittu armed with pistols came there and on seeing them raised `Lalkara'. Rajesh, Suraj Bhan and Om Parkash gave blows on the head of his father with iron rods. Kamlesh hit his grand-father with a brick on his chest and Vijay gave a `Danda' blow on the head of his grand-father. Bahadur gave a `Danda' blow on the feet of his grand-father. Jiya Ram, Raj Kumar alias Bittu and Vijay fired gun shots in the air and threatened to kill them. When the injured were taken to Umkal Hospital, Gurgaon, where his cousin Parvesh and Vikas came there to inquire about them and were talking to them. In the meantime, a white car came from Red Cross, Sector 29, Gurgaon and stopped near Umkal Hospital. Thereafter, out of the said car four young boys came out, their names were Jiya Ram, Raj Kumar alias Bittu already known to him and two more were also there, who were called by their co-accused by the name of Suresh and Banti. Then accused Raj Kumar fired a shot towards Parvesh which hit on his head and Suresh fired a shot which hit on the back of Parvesh, whereas Jiya Ram and Banti grappled with him and his cousin Vikas due to which said Vikas fell down and suffered injuries on his back and arm. Accused Suresh and Raj Kumar alias Bittu fired shots towards them but they escaped while entering in Umkal Hospital. After some time, when they came out of the hospital, they saw Parvesh was lying on the ground and all the four accused had left the place of occurrence. Then he Cr. Appeal Nos.D-421-DB of 2010 etc. [16] and his cousin Vikas took Parvesh by arranging vehicle to Kalyani Hospital, where after some time Parvesh was declared dead. His grand-father was referred from Umkal Hospital to Ram Manohar Lohia Hospital, New Delhi for further treatment where he expired on 26.9.2006.
PW-14 Karambir and PW-16 Raj Kumar also mainly deposed the same facts. PW-15 is Dr. B.B. Aggarwal, who deposed regarding the post-mortem conducted on the dead body of Parvesh. PW-17 Mohd. Hussain, Inspector mainly deposed regarding preparing final report under Section 173 Cr.P.C. after completion of investigation against accused Suresh. PW-18 Jagdish Parshad, SI mainly deposed regarding preparing final report under Section 173 Cr.P.C. after the completion of investigation against accused Jiya Ram. PW-19 Dr. Atul Murari deposed that Dr. Avinash Kumar Singh, who was working as Junior Resident in the Department of Forensic Medicine, Lady Hardinge Medical College and Associated Hospitals, New Delhi expired during service on 10.8.2008 and his hand- writing and signatures on post-mortem report (Ex.PL) of Amar Singh was proved by him. PW-20 Dr. Narender Mal, who was posted in Ram Manohar Lohia Hospital, New Delhi on that day deposed regarding proving the death summary of Amar Singh. PW-21 Dr. K.K. Singh, deposed regarding the medico-legal examination of Raj Kumar, Karambir, Amar Singh, Suresh Yadav and Ram Avtar. PW-22 SI/SHO Jagdish Chander mainly deposed that on 20.10.2007 accused Suresh surrendered before Gurgaon Court. He joined him in the investigation and he interrogated him. On interrogation, he made disclosure statement Ex.PQ regarding demarcation of the place of occurrence and he demarcated the place of occurrence. On 21.10.2007, Cr. Appeal Nos.D-421-DB of 2010 etc. [17] accused Suresh again suffered disclosure statement regarding the demarcation of the place where he had thrown the pistol after breaking it in the drain and he deposed regarding disclosure statement and the demarcation of the place and also rough site plan. PW-23 SI/SHO Surender Singh mainly deposed regarding investigation of the case.
PW-24 Inspector Baljit Singh, CIA Staff, Jhajjar mainly deposed regarding the investigation of this case. He deposed that on 21.9.2006, he took out accused Suraj Bhan, Satbir, Rajesh and Vijay, who were lodged in the Police lock-up, and interrogated them and recorded their statements under Section 161 Cr.P.C. On 25.9.2006, he interrogated accused Yogender and Om Parkash after taking them out from the Police lock-up. On 7.10.2006, he arrested accused Harbans alias Banti and on the next day, on interrogation he suffered disclosure statement regarding the place of occurrence which was before Umkal Hospital. On 14.10.2006, he obtained parcels of the clothes of accused Yogender and Sanjay worn by them from Shivam Hospital. On 1.11.2006, he arrested accused Kamlesh, who on interrogation suffered disclosure statement Ex.PCC. On 3.11.2006, she suffered another disclosure statement after retracting from her earlier disclosure statement regarding her throwing the `Danda' on the roof of her house. In pursuance of her disclosure statement, she got recovered the `Danda' from the disclosed place, which was taken into Police possession. On 8.11.2006, he arrested accused Bahadur Singh, who on interrogation suffered disclosure statement regarding concealing of `Lathi' in the bushes, which he got recovered in pursuance of his disclosure statement. He also got demarcated the place of occurrence in Village Kanhai. On 20.10.2006, Cr. Appeal Nos.D-421-DB of 2010 etc. [18] he had also taken into possession one Maruti car bearing No.HR-26W-2105 along with RC, which was produced by Kaptan Singh. In the cross- examination, he deposed that he had not investigated DDR No.3 which was recorded on the basis of statement of accused-Kartar.
PW-25 Dr. Arun Vashisht deposed regarding proving the signatures and hand-writing of Dr. Shailender Shukla, who was posted in Kalyani Hospital, who prepared the MLR of Parvesh Yadav. The MLR is Ex.PKK. PW-26 Sub Inspector Kailash, Economic Cell, Palam Vihar, Gurgaon deposed regarding the arrest of accused Sonu. He deposed that he interrogated Sonu, who suffered disclosure statement Ex.PLL to the effect that he could get demarcate the place of occurrence. He got demarcated the place of first occurrence in pursuance of his disclosure statement. On 19.3.2009, he arrested accused Jiya Ram, who on interrogation suffered disclosure statement and demarcated the place of second occurrence in front of Umkal hospital in pursuance of his disclosure statement.
At the close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and were confronted with the evidence of the prosecution. They denied the correctness of the evidence and pleaded themselves as innocent. Accused-Rajesh, Kartar, Satbir, Suraj Bhan and Yogender deposed that they are innocent and had been falsely involved in this. In fact, it was the complainant party who came with arms to their house and made a murderous assault on them. Parvesh and Vikas also participated in the assault. Since Parvesh was son-in-law of Narender, ASI, who was posted at Gurgaon at that time, the police in collusion with the complainant party made the aggressors as complainant and vice versa.
Cr. Appeal Nos.D-421-DB of 2010 etc. [19] Accused-Raj Kumar alias Bittu and Om Parkash deposed that they are innocent and had been falsely involved in this case. They had absolutely nothing to do with any of the occurrence. Accused-Kamlesh deposed that she had been falsely implicated because she being immediate neighbour of Amar Singh since deceased and she was not having cordial relation with him and his family. Earlier the prosecution tried to show her presence in the second occurrence as well and attributed act of shooting Parvesh but subsequently attributed head injury on Amar Singh. Accused-Bahadur Singh, Suresh, Jiya Ram and Harbans alias Banti deposed that they are innocent and had been falsely involved in this case only due to the fact that they intervened and for fear of being eye witnesses against the complainant party, they had been falsely roped in. Accused-Vijay deposed that he had been falsely implicated because he being immediate neighbour of Amar Singh since deceased and was not having cordial relation with him and his family. Earlier the prosecution tried to show his presence in the second occurrence as well and attributed act of shooting Parvesh but subsequently attributed head injury on Amar Singh. Accused-Sonu alias Sanjay deposed that he is innocent and had been falsely involved in this case.
In defence, the accused-appellants examined DW-1 Dr. Vijay Diwakar, who mainly deposed regarding proving the hand-writing and signatures of Dr. Dheeraj Dubey on MLRs Ex.D1 of Sanjay, D.2 of Yogender, D.3 of Rajesh, D.4 of Suraj, D.5 of Satbir and D.6 of Kartar. He further deposed that Yogender and Sanjay Kumar were operated by him on 19.9.2006. DW-2 Dr. Vivek Sharma, Radiologist, Shivam Hospital, Gurgaon deposed regarding X-ray report of left foot of Sanjay Kumar and Cr. Appeal Nos.D-421-DB of 2010 etc. [20] found metallic projectile with comminuted fracture of shaft of left metatarsal. On 18.9.2006, he reported metallic X-ray of right foot, which shows metallic projectile in right first metatarsal and comminuted fractures of right big toe with splitting fractures head and shaft of right first metatarsal. On 18.9.2006, he also reported X-ray of Suraj Bhan and found fracture head of right second metatarsal extending to the shaft. DW-3 Dr. Narender Singh is RMO in Shivam Hospital, Gurgaon, who deposed regarding the MLR of Pabita wife of Kartar Singh. There was injury over the left wrist with pain and swelling on left wrist. DW-4 Himanshu, Record Keeper in Umkal Hospital, Gurgaon mainly deposed regarding Ruqa No.1196 dated 18.9.2006 pertaining to the arrival of patients Rishi and Sanjay belonging to Village Zharsa. DW-5 Shiv Kumar, Accountant, Kalyani Hospital mainly deposed regarding the record of the addresses of the doctors leaving the hospital. DW-6 Roshan Lal, Pharmacist, District Jail, Bhondsi deposed regarding his joining in Jail Dispensary in the year 2008 and he placed the record of treatment of Yogender during his stay in the Jail.
From the evidence on record, the learned trial Court convicted and sentenced the accused-appellants Kartar, Rajesh, Suraj Bhan, Om Parkash, Bahadur Singh, Yogesh alias Yogender, Satbir, Raj Kumar alias Bittu, Vijay and Jiya Ram, Suresh and Harbans alias Banti for the offences as mentioned above and acquitted accused-Kamlesh and Sonu alias Sanjay.
We have heard learned counsel for the parties and with their assistance have gone through the evidence on record carefully.
At the time of arguments, the learned senior counsel appearing Cr. Appeal Nos.D-421-DB of 2010 etc. [21] for the appellants contended that the complainant party was aggressor. They came towards the house of appellants and occurrence took place near the house of the appellants and they have suffered injuries in the occurrence which are duly proved from the MLRs of the appellants. Learned senior counsel for the appellants next contended in the alternative that the appellants have the right of self-defence and they cannot be held guilty. In the alternative, learned senior counsel for the appellants contended that at the most, it can be treated as a case of free fight and every person is liable for his own acts. There was no previous enmity between the parties. As per prosecution version, the occurrence took place all of a sudden and both the parties received injuries in the occurrence. Learned senior counsel further contended that there is no injury on the person of Amar Singh which is stated by the witnesses to have been caused by Bahadur Singh-appellant with a `Lathi'. There is only one blow and Amar Singh also died after about 7 days after the occurrence. All these facts show that at the most case of Vijay falls under Section 304, Part-II IPC only. There is no injury on the body of Amar Singh on the foot as per MLR. Kamlesh has already been acquitted by the learned trial Court. Learned senior counsel further contended that the prosecution has concealed the presence of Ram Avtar and Vinod Kumar in the FIR. Again from the evidence, it is clear that Parvesh and Vikas were present in the village itself as Tata Safari of Parvesh was damaged by the villagers in the village on that night but they were not shown present at the place of occurrence. Learned senior counsel further contended that accused Sanjay alias Sonu was earlier named in the FIR but later on dropped by the PWs. This fact also creates doubt in the prosecution Cr. Appeal Nos.D-421-DB of 2010 etc. [22] version. Learned senior counsel for the appellants further contended that in the FIR there is different version whereas witnesses changed the whole version. The witnesses are not trust-worthy and it is not safe to convict the accused on the basis of this evidence. Learned senior counsel further contended that it looks improbable that the second occurrence took place outside Umkal Hospital and injured Parvesh was taken to a separate Hospital Kalyani. No staff or doctor of Umkal Hospital was examined. This fact also creates doubt in the prosecution version. Learned senior counsel for the appellants further contended that the empty recovered from the place and the bullet taken from the body of Parvesh as per FSL report could not be held fired from the pistol of Raj Kumar. This fact also does not connect the appellants with the crime. The learned senior counsel for the appellants further contended that the statement of PW Vinod has been recorded under Section 161 Cr.P.C. after three months of the occurrence, therefore, his version is concocted one and after thought.
On the other hand learned Additional Advocate General appearing for the respondent-State and learned senior counsel appearing for the complainant argued that there is no material on record of false implication of the appellants. The FIR was prompt one and there is no concoction etc. The appellants caused death of Amar Singh in first occurrence by constituting unlawful assembly and gave injuries to Raj Kumar-complainant (R.K. Yadav), Vikas Yadav, Karambir, Suresh and Ram Avtar and Amar Singh (who later on died). The injuries on the person of the appellants are fabricated injuries. Even the trial Court has given the opinion that the bullets which are stated to have been recovered from the toe and Cr. Appeal Nos.D-421-DB of 2010 etc. [23] foot of accused are unfired bullets. Learned senior counsel for the complainant argued that the injuries of other accused are also fabricated injuries. He argued that the appellants are aggressors and there is no question of self-defence as the injuries are mainly on the bodies of the complainant party and one of the persons from complainant side died in the first occurrence also. Learned senior counsel also argued that it is not a case of free fight nor the case falls under Section 304, Part-II IPC as regards the first occurrence. He further argued that statement of PW-14 Karambir has been recorded promptly on 19.9.2006 and his statement is consistent with Vinod Kumar PW-13. He further argued that the FIR is not an encyclopedia to give all the detailed facts in the same. He argued that if there is contradiction between the FIR and oral ocular statements, the statement made in the FIR is relevant so far as the maker of FIR is concerned and does not have any effect on credibility or testimony of every eye witness. Learned senior counsel further argued that the PWs have consistently deposed regarding the prosecution version and the statement of Karambir, who is injured witness cannot be doubted in any way. Learned senior counsel for the complainant next contended that as per version given by Kartar in DDR Ex.D.11, he has stated that the genesis of the occurrence could not be known which shows that the version of prosecution is probable and believable. The defence version is after thought. There is no question of concealing the presence of Ram Avtar who is injured in the occurrence. Similarly, the main dispute arose from Vinod and he is supposed to be present at the time of occurrence. If their names are not given in the FIR in no way it creates doubt. The FIR was registered on the statement of Raj Cr. Appeal Nos.D-421-DB of 2010 etc. [24] Kumar who has received injuries in the occurrence and about one hour earlier recording of FIR, he received the information regarding the death of Parvesh. Therefore, in these circumstances there is possibility of some omissions in the FIR as the witness was under shock due to the injuries and occurrence. Therefore, he argued that there are no merits in the appeals. As regards criminal revision, the learned senior counsel for the revision petitioner has not argued anything and not pressed for relief claimed in the revision.
From the evidence on record, we firstly take the first occurrence which occurred in Village Kanhai. It is the case of the prosecution that Vinod while on motorcycle passed over the freshly constructed cemented `Rasta' and a quarrel took place between him and Kartar and Kartar gave beating to him. He came to the house and told Raj Kumar etc. As per prosecution version Ram Avtar was residing in the village outside whereas Raj Kumar, Karambir and Suresh were residing along with their father in the house at village. Therefore, when the complainant party was going to Kartar regarding giving beating to Vinod then the occurrence took place in the street. A perusal of the evidence on record shows that complainant-Raj Kumar received big clean lacerated wound of 5 cm x 3 cm on mid scalp. Karambir also received clean lacerated wound 5 cm x 3 cm on mid scalp. Ram Avtar received two injuries 5 cm x 3 cm on mid scalp and the other on the left forehead. Suresh as per MLR was feeling pain and swelling below on right leg. As regards Amar Singh, haematomas were present on forehead right side with clean lacerated wound 4 cm x 2 cm. due to which Amar Singh has died on Cr. Appeal Nos.D-421-DB of 2010 etc. [25] 26.9.2006.
As regards accused side as per MLRs Sanjay alias Sonu and Yogender are shown to have received fire arms injuries on left foot and big toe respectively. The fire arm injury on the toe alone looks improbable. It cannot be given by a fire arm weapon from a distance. Blackening was present. Otherwise also, the learned trial Court who saw the bullets at the time of arguments has observed that those were unfired bullets which shows that these injuries on the person of Sanjay alias Sonu and Yogender are fabricated injuries and cannot be believed. As regards Rajesh, he has received clean lacerated wound medial aspects of right palm and another abrasion on right elbow but again these injuries look doubtful as these are stated to have been caused with sharp edged weapon as per MLR Ex.D.3. As regards MLR of Suraj Bhan Ex.D.4, pain and swelling on right hand has been shown. Pabita wife of Kartar was shown injury over left wrist with pain and swelling. As regards Satbir two clean lacerated wounds on left side over forehead and one lacerated wound on left side of front parietal region have been shown. There is also one penetrating lacerated wound on right leg and clean lacerated wound on right eyebrow. The injuries on his person also stated to be shown with blunt weapon. As regards Kartar, he also received clean lacerated wound over parietal region and he received two abrasions on right foot and right knee and the injuries were simple and with blunt weapon. Neither cross version has been registered nor challan has been presented. Secondly, the doctor, who conducted the MLRs on the appellants-accused have not been examined and DW-1 Dr. Vijay Diwakar only identified the signatures of the doctor who conducted the MLRs.
Cr. Appeal Nos.D-421-DB of 2010 etc. [26] Therefore, on these injuries no opportunity to cross-examine the doctor could be given to the prosecution. Further we find that copy of DDR No.3 dated 19.9.2006 has been proved on the record which is recorded on the basis of statement of Kartar-appellant. In this statement, it is written that genesis of the fight was not known to any of them who were got admitted in the hospital which means that the accused side could not give the genesis of the fight. Further in this DDR, it is written that other persons also came from the back side park who were armed with arms and they started firing at them as a result of which they (Kartar, Satbir and Sanjay alias Sonu) got pellet injuries but there is no pellet injury to Satbir and Kartar and the injury on Sonu alias Sanjay was also found fabricated. Therefore, first version given in the DDR by accused Kartar does not show that the accused were aggressors. It is also in the DDR that Suresh, Karambir, Ram Avtar, Amar Singh armed with `Danda', `Lathis' and spade came there from the side of their house and started giving beating to Rajesh, Yogender and Sonu. As already discussed, Sonu and Yogender having received injuries with firearms. Similarly, as per MLR of Rajesh, the injury on his person has been stated by the doctor to be given by the sharp edged weapon. Therefore, from the above version, it looks that the injuries on the person of appellants- accused are not given by the complainant party. These are fabricated one. Further more no defence witness has been examined by the accused side to prove their version. They have led no evidence that they caused the injuries in self-defence or the complainant party was armed with fire arm weapons or `Dandas', spades etc. and caused injuries to them. Keeping in view the injuries on the person of complainant side and the fact that the injuries on Cr. Appeal Nos.D-421-DB of 2010 etc. [27] their person at least on some of the accused are found fabricated, the complainant party cannot be held as aggressor. We also find that there is no cogent findings on the record to prove that the accused have given injuries in self-defence. Therefore, both these arguments of the learned counsel for the appellants have no merit. As regards the next argument of free fight, we find that there was no enmity between the parties earlier to the occurrence. There was no pre-planing to cause the injuries but the occurrence took place at the spot and some persons from the accused side also received injuries and even the PWs have admitted that they have also given injuries by fist and kick blows. Kartar one of the accused has also received injuries on the parietal region though simple. Therefore, from the evidence on record, it looks that there was no unlawful assembly with common object, rather, a quarrel took place all of a sudden. Therefore, in the facts and circumstances of the present case, the offence under Section 148 IPC is not made out specially when there was no earlier enmity between the parties nor there was any motive for causing occurrence. The motive for the occurrence was that Vinod passed over his motorcycle on freshly constructed cemented way and due to that quarrel took place. Therefore, from the evidence on record, it is a case of free fight and every person is liable for the injuries given by him.
As regards the injuries on the person of Amar Singh, there is evidence on the record that accused-appellant Vijay gave `Danda' blow on the head of Amar Singh. One injury was found on the head of Amar Singh. In the FIR, Raj Kumar has stated that Vijay had given injuries to Karambir and he stated that accused gave injuries to Amar Singh and Suresh also Cr. Appeal Nos.D-421-DB of 2010 etc. [28] which means that Raj Kumar had not mentioned specific injury in the FIR but PW-13 Vinod Kumar and PW-14 Karambir while appearing in the Court specifically stated that Vijay gave `Danda' blow on the head of Amar Singh. Even PW-16 Raj Kumar while appearing in the Court has stated that injuries were also given to Amar Singh, Ram Avtar, Suresh and Vinod Kumar. There was only one injury on the person of Amar Singh. The first occurrence took place on 18.9.2006 at about 9.00 p.m. and Amar Singh died on 26.9.2006 after about seven days. No blow was repeated by the accused which shows that he has given the injury without any intention to kill. Otherwise, he would have repeated the blows. The case of Vijay regarding giving injury to Amar Singh with `Danda' on the head falls under Section 304, Part-II IPC. Therefore, from the above, we find merit in the argument of the learned senior counsel for the appellants that it is a case of free fight and Vijay is liable under Section 304, Part-II of the IPC for his individual act and the other accused-appellants are not liable with the aid of Section 149 IPC.
As regards the next contention that in the FIR names of Ram Avtar and Vinod Kumar have not been mentioned, we find that this fact in no way creates any reasonable doubt in the prosecution version nor regarding the presence of these PWs on the spot as Ram Avtar received lacerated wound on the mid scalp and also on the left forehead which itself shows the presence of Ram Avtar on the spot. Similarly, as regards the presence of Vinod Kumar on the spot, it cannot be doubted as the main dispute arose due to him as he crossed over the newly laid cemented way and he was given beating as per prosecution version by Kartar. He came to Cr. Appeal Nos.D-421-DB of 2010 etc. [29] Raj Kumar etc. and made complaint and then the complainant party went towards the house of Kartar etc. to inquire or to make complaint regarding the conduct of Kartar. Therefore, his presence on the spot is natural and cannot be doubted. As already discussed above, FIR is not an encyclopedia. All the minutest details regarding the occurrence and persons are not supposed to be mentioned in the FIR.
As regards the next contention regarding the presence of Parvesh and Vikas in the village, we find that there is no cogent evidence on record to show that Parvesh (deceased) and Vikas were present in the village. Merely, that their Tata Safari vehicle was in the village and damaged by the villagers on that night as admitted by the PWs itself will not prove the presence of Parvesh and Vikas in the first occurrence in the village. PW-13 Vinod Kumar in his cross-examination has stated that Tata Safari vehicle was brought by his uncle Raj Kumar alias Raju at the spot. PW-13 also admitted that Tata Safari was smashed by the villagers in the village on that very night. Therefore, this contention of the learned senior counsel for the appellants has no merit.
As regards the argument of the learned senior counsel for the appellants that the statement of Vinod Kumar has been recorded after three months also does not create any doubt in the prosecution version. As already discussed, the presence of PW-13 Vinod Kumar on the spot cannot be doubted. Secondly, we find that the statement of another PW Karambir was recorded at the earliest on 19.9.2006. The statements of Vinod Kumar PW-13 and Karambir PW-14 are consistent on material facts. The mere fact that the version given by them regarding some of the accused is different Cr. Appeal Nos.D-421-DB of 2010 etc. [30] than the version given in the FIR, we find that only on this ground PW-13 Vinod Kumar and PW-14 Karambir cannot be disbelieved as held by Hon'ble Supreme Court in Sate of Rajasthan v. Nana and others, (2007) 9 SCC 398 in which it is held that the statement made in the FIR is a factor which is relevant so far as the statement of the maker of the FIR is concerned. It does not have any effect on the credibility of the evidence of the other witnesses who have as noted above at all stages have categorically stated about the role played by Bada (respondent in that case). Therefore, merely because there was some difference in the version of PW-1 in that case so far as his statement in the Court vis-a-vis statement in the FIR is concerned that does not in any way affect the credible and cogent evidence of PWs-2 and 3 in that case. We find that the Hon'ble Supreme Court in Rotash v. State of Rajasthan, 2007 (1) RCR (Cr.) 870 held that FIR is not an encyclopedia of the entire case and it need not contain all the details. Name of co-accused not mentioned by informant who was eye witness, but mother of deceased, who was injured in incident naming co-accused in her statement recorded soon after incident. Informant as also mother of deceased named co-accused in their statements to Police and also before Court. It is held as not fatal the absence of name of co-accused in the FIR. It is held by the Hon'ble Supreme Court in Kirender Sarkar and others v. State of Assam, 2010 (4) RCR (Cr.) 628 that the law is fairly well settled that FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. When essentially material facts are disclosed in the FIR that is sufficient. FIR is not substantive evidence and cannot be used for contradicting testimony of the eye Cr. Appeal Nos.D-421-DB of 2010 etc. [31] witnesses except that may be used for the purpose of contradicting maker of the report. Though the importance of naming the accused persons in the FIR cannot be ignored, but names of the accused persons have to be named at the earliest possible opportunity. The question is whether a person was impleaded by way of afterthought or not must be judged having regard to the entire factual scenario in each case. Therefore, non-naming of one or few of the accused persons in the FIR is no reason to disbelieve the testimony of crucial witnesses. Therefore, in view of the above settled law, we find that the statements of PW-14 Karambir, who is also injured and PW- 13 Vinod Kumar cannot be disbelieved. Both of the PWs have consistently deposed on material facts and both are truthful and reliable witnesses and their statements given in the Court as well as to the Police cannot be disbelieved. Statement of Karambir PW-14, as discussed earlier, has been recorded at the earliest after the occurrence. As regards the version of PW- 16 Raj Kumar alias Raju-complainant, he has also given the detail of the occurrence in the FIR. He has deposed regarding the injuries caused by the accused-appellants to Amar Singh and Suresh. He also deposed regarding firing shots by Jiya Ram, Raj Kumar alias Bittu and Vijay in the air. He also deposed regarding the weapons with each of the accused and also deposed regarding giving injuries to him and Karambir. He also stated the facts regarding the second occurrence regarding Jiya Ram and Raj Kumar alias Bittu and one Vijay alighted from the vehicle whereas the PWs deposed that Raj Kumar alias Bittu and Suresh fired and Jiya Ram and Harbans alias Banti were with them who grappled with Vikas etc. As already discussed, there is no contradiction regarding the time, place of occurrence when the Cr. Appeal Nos.D-421-DB of 2010 etc. [32] FIR was got recorded just one hour before that the complainant received the information regarding the death of Parvesh. The complainant was also in the state of shock as so many persons from his side had received injuries including himself, therefore, there is every chance that he could not give all the minutest details regarding the names of the accused and part played by them in the FIR. But in the Court, he also deposed as deposed by other PW- 13 Vinod Kumar and PW-14 Karambir.
Further we find that the contention of the learned senior counsel for the appellants that empty recovered from the place and bullet taken from the body of Parvesh as per FSL report could not be held fired from the pistol of Raj Kumar alias Bittu. The pistol, which was recovered from Raj Kumar alias Bittu may not be the same which was used by him in the occurrence. Pistols from Jiya Ram and Suresh were not recovered and pistol recovered from Vijay was not sent to FSL. Therefore, only this fact does not create any doubt in the prosecution version specially in view of the substantive evidence given by the PWs in the Court. Therefore, this argument of the learned senior counsel for the appellants has also no merit.
As regards the second occurrence, we find that the prosecution version cannot be doubted only on the ground that why Parvesh was taken away to Kalyani Hospital and why he was not got treated from Umkal Hospital outside of which occurrence took place. A perusal of the evidence no where shows any evidence on the record regarding the same facts. There is nothing on the record whether a Surgeon was available in Umkal Hospital at that time, or whether Umkal Hospital is big enough to treat such type of emergency etc. As no explanation was got from the witnesses, therefore, Cr. Appeal Nos.D-421-DB of 2010 etc. [33] only on this ground it cannot be held that the occurrence has not taken place outside Umkal Hospital. The Police lifted blood stained earth during investigation, the second occurrence was found to have taken place outside Umkal Hospital. The PWs have consistently deposed regarding the second occurrence which took place outside Umkal Hospital. The version regarding second occurrence that had taken place outside Umkal Hospital has also been mentioned in the FIR which was immediately recorded. There is no cogent evidence on the record produced by the accused-appellants to show that Parvesh received injuries at some other place and who had given the injuries. Therefore, the prosecution case cannot be doubted, as already discussed above. Though, eye witnesses PW-13 and PW-14 have deposed that Raj Kumar alias Bittu and Suresh were armed with pistols and Raj Kumar alias Bittu fired a shot towards Parvesh which hit on the head and Suresh fired a shot which hit on the back of Parvesh consistently and Jiya Ram and Harbans alias Banti were with them and they grappled with Vikas who fell down and suffered injuries. Whereas in the FIR it is stated that accused Jiya Ram, Bittu and Vijay alighted from one vehicle and fired on Parvesh. This statement in the FIR can only be read to contradict the maker of the FIR, but the other witnesses cannot be confronted. As per prosecution version, PW-14 Karambir recorded his statement on 19.9.2006 at the earliest after the occurrence and he has consistently deposed regarding this version that there were four persons, namely, Jiya Ram, Raj Kumar alias Bittu, Suresh and Harbans alias Banti and Raj Kumar alias Bittu and Suresh fired shots on Parvesh and Jiya Ram and Banti grappled with Vikas. His statement is also supported and corroborated by medical evidence of Vikas Cr. Appeal Nos.D-421-DB of 2010 etc. [34] who had received multiple abrasions with thoracic pain (back) and pain and swelling on left elbow etc. The PWs are trust worthy and reliable witnesses. Therefore, this argument of the learned senior counsel for the appellants has also no merit and no reasonable doubt exists in the present case.
Therefore, from the above discussion, we find that it is a case of free fight and the offence under Section 148 IPC is not proved, therefore, the appellants-convicts Kartar, Rajesh, Suraj Bhan, Om Parkash, Bahadur Singh, Yogesh alias Yogender, Satbir, Raj Kumar alias Bittu, Vijay and Jiya Ram are acquitted for the offence under Section 148 IPC and their sentence is set aside. As regards convicts-appellants Jiya Ram, Raj Kumar alias Bittu and Vijay regarding firing in air, it has been duly proved by the PWs, therefore, the sentence of these three appellants for the offence under Section 285 IPC is upheld and the other appellants except these three appellants are acquitted for the offence under Section 285 IPC. As it being a free fight, every body is liable for his own act. As there is evidence on record that all the accused-appellants had taken part in giving injuries, therefore, their conviction and sentence for the offences under Sections 323 and 506 IPC is upheld against all the appellants. As already discussed, only appellant-Vijay is held guilty for the offence under Section 304, Part-II IPC instead of under Section 302 IPC and he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `25,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year for the offence under Section 304, Part-II IPC. The conviction of all other appellants under Section 302 IPC regarding murder of Amar Singh is set aside. We further find that appellant Raj Kumar alias Bittu and Suresh have Cr. Appeal Nos.D-421-DB of 2010 etc. [35] been convicted and sentenced under Section 302 IPC for the murder of Parvesh and their conviction and sentence is upheld for the offence under Section 302 IPC whereas appellants-Jiya Ram and Harbans alias Banti were convicted under Section 302 read with Section 34 IPC and their sentence passed by the learned trial Court is also upheld. The conviction and sentence of Raj Kumar alias Bittu passed by the learned trial Court for the offence under Section 25 of the Arms Act is also upheld.
With the above modification in the conviction and sentence, Criminal Appeal No.D-421-DB of 2010; Criminal Appeal No.D-424-DB of 2010; Criminal Appeal No.D-436-DB of 2010 and Criminal Appeal No.D- 498-DB of 2010 are partly allowed accordingly.
Criminal Appeal No.D-422-DB of 2010 and Criminal Appeal No.D-426-DB of 2010 filed by Suresh and Criminal Appeal No.D-423-DB of 2010 filed by Harbans alias Banti are dismissed.
As regards Criminal Revision No.1456 of 2010 filed by complainant-petitioner Raj Kumar alias Raju for imposition of heavy amount of fine upon respondents No.1 to 12, out of which adequate amount may be ordered to be paid to the heirs of two deceased, namely, Amar Singh and Parvesh was not pressed at the time of arguments and the same is dismissed as having not pressed.
(Satish Kumar Mittal) (Inderjit Singh)
Judge Judge
August 28, 2012.
*hsp*