Punjab-Haryana High Court
Krishan Lal And Others vs State Of Haryana on 21 July, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 439-SB of 2002 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 439-SB of 2002
Date of Decision: 21st.07.2011
Krishan Lal and Others
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. K.D.S. Hooda, Advocate
for the appellants.
Mr. Sandeep S. Mann, Senior Deputy Advocate
General, Haryana, for the respondent.
Kanwaljit Singh Ahluwalia, J.
The present appeal has been instituted by Krishan Lal, his brother Raja Ram, Shamsher Singh, Balbir Singh alias Bhira and Kuldeep Singh, residents of village Mandwal, District Kaithal. They were accused in case FIR No.151 dated 14.9.1995, registered at Police Station Rajound, under Sections 323, 324, 148, 149 and 302 IPC. They assail the judgment dated 14.2.2002, passed by the Court of Additional Sessions Judge (I), Kaithal, whereby they were acquitted of the offence under Section 302 read with 149 IPC but held guilty for the offence under Sections 148 and 304 Part II read with Section 149 IPC. Vide a separate order dated 16.2.2002, all the appellants were sentenced to undergo rigorous imprisonment for a period of one year each, for the offence under Section 148 IPC. They were also sentenced to undergo rigorous imprisonment for a period of five years each and to pay a fine of Criminal Appeal No. 439-SB of 2002 2 ` 3,000 each, in default whereof to further undergo rigorous imprisonment for a period of one year each, for the offence under Section 304 Part-II IPC.
To begin with, it will be necessary to give brief facts of the case.
As per the prosecution, occurrence in the present case had taken place on 13.9.1995 at about 7.00 A.M. Statement Ex.PN of deceased Khazan Singh, which has now been termed as a dying declaration was recorded by PW.7 Jai Singh, Head Constable on 14.9.1995 at about 3.25 P.M. at Civil Hospital, Kaithal. On the basis of statement, formal FIR Ex.PN/2 was registered at Police Station Rajound at 5.15 P.M. for the offence under Sections 323, 324, 148 and 149 IPC. PW.7 Jai Singh, Head Constable, had received a ruqa Ex.PG/2 along with the Medicolegal Report regarding admission of Khazan Singh at Primary Health Centre, Rajound. On 14.9.1995, PW.7 Jai Singh, Head Constable, submitted an application Ex.PM to the doctor as to whether the patient was fit to make a statement or not. The doctor informed vide endorsement Ex.PM/1 that Khazan Singh has been referred to the Civil Hospital, Kaithal. Thereupon, Jai Singh, Head Constable, visited Civil Hospital, Kaithal and submitted an application Ex.PM/2 regarding fitness of Khazan Singh to make a statement. The doctor on duty, vide opinion Ex.PM/3, opined that Khazan Singh was fit to make a statement. Thereupon, statement of Khazan Singh Ex.PN was recorded. Since the statement of Khazan Singh Ex.PN was treated by the prosecution as a dying declaration, it will be necessary to reproduce true translation of the same hereunder:-
Criminal Appeal No. 439-SB of 2002 3
"Statement of Khazan Singh son of Antu Caste Harijan, resident of Mandwal, aged 45/46 years. Stated that I am resident of aforesaid address and doing the work of agriculture. On 13.9.95 at about 7.00 A.M., I had gone to see my paddy crops in the fields. In the meanwhile, Krishan Lal s/o Jumma, caste Harijjan having gandasi in his hand came there and said that you in support of your brother Jagdish in the evening was abusing our party man Chand Singh s/o Lachhman Singh, Majhbi Sikh, a lesson will be taught to you today. In the meanwhile, in support of Krishan Lal, Raja Ram s/o Jumma armed with Kulhari, Shamsher Singh s/o Atma Singh having Jailli in his hand, Balbir Singh alias Bhira s/o Shamsher Singh, Majhbi Sikh having lathi in his hand, Kuldeep Singh s/o Chand Singh, Majhbi Sikh having gandasi in his hand came in my fields and on reaching there, Krishan Lal gave a gandasi blow which hit on my left leg, then Raja Ram gave a kulhari blow which hit on my little finger of left hand, then Shamsher Singh gave a Jailli blow like lathi which hit on my knee, then Balbir Singh gave a lathi blow on my left leg towards back side, Kuldeep Singh gave a gandasi blow from the blunt side of gandasi like lathi which hit on the right leg. I raised a noise BACHAO BACHAO. On hearing my noise, my son Sher Singh and my brother Karamvir came running on the spot who were working in the nearby fields. On seeing them, accused ran away from the spot of Criminal Appeal No. 439-SB of 2002 4 occurrence along with their respective weapons. I fell down on the ground and became unconscious. I do not know who brought me from the fields and in which hospital I was got admitted. On regaining consciousness, I have got recorded my statement to you. Motive of the fight was that Chand Singh etc. used to cut grass forcibly from the fields of my brother Jagdish and on 12.9.95 in the evening Chand Singh s/o Lachhman, Jarnail Singh s/o Dilbag Singh, Kakka Singh, Kakka Singh s/o Dewan Singh, residents of Mandwal gave injuries to my brother Jagdish. I had uttered hot words to Chand Singh regarding injuries caused to Jagdish. I also in self defence caused injury to them. Krishan Lal, Raja Ram, Shamsher Singh, Balbir Singh, Kuldeep Singh have caused injuries to me without any fault after taking law into their hands. Legal action may kindly be taken against them..."
As stated earlier, on the basis of statement of the deceased, formal FIR Ex.PN/2 was recorded, the same was investigated and the report under Section 173 Cr.P.C. was submitted.
After the case was committed, the appellants were charged by the Court of Additional Sessions Judge Kaithal for the offence under Section 148 IPC. Appellant Krishan Lal was substantively charged for the offence under Section 302 IPC, whereas the remaining appellants were charged with the aid of Section 149 IPC. The appellants pleaded not guilty and claimed trial.
The prosecution commenced its evidence. At this stage, it will Criminal Appeal No. 439-SB of 2002 5 be necessary to notice the medical evidence.
PW.5 Dr. Lajja Ram had medicolegally examined Khazan Singh on 13.9.1995 at about 7.10 P.M. As per his clinical observations, the patient was conscious, well oriented, his pulse and blood pressure were normal. However, he was not able to move his left leg. The following injuries were found on the person of Khazan Singh:-
"1. Incised wound size 3 cm over lower third of anterior of left leg. Bleeding positive with diffused swelling over left foot. Patient was unable to move. Left leg and bone was coming through anterior aspect of bone. Advised ortho opinion.
2. Lacerated wound size 2 x 1 cm over left leg just 3 cm medial to injury No.1.
Bleeding positive. Advised X-ray.
3. Lacerated wound size 1 cm over posterior of lower third of left leg. Bleeding positive.
4. Incised wound size 2 cm over medial aspect of root of left little finger. Bleed on cleaning the wound.
5. Lacerated wound size .5 cm into muscle deep lower lateral aspect of lower third of right leg. Bleed on cleaning of the wound. Diffuse swelling over right ankle joint. Advised X-ray of right leg including right ankle joint."Criminal Appeal No. 439-SB of 2002 6
According to the opinion of PW.5 Dr. Lajja Ram, injuries No.1 and 4 were caused with sharp edged weapon, rests with blunt weapon. This witness further stated that when the patient arrived at the hospital, he was administered pain killers due to which he became unconscious at about 8.15 P.M. At the time of medicolegal examination, Khazan Singh was not suffering from septicemia.
PW.8 Dr. Satbir Chaudhary stated that after admission of Khazan Singh in Civil Hospital, Kaithal, his radiological examination was conducted. Fracture of his both bones of left leg and also fracture of lower 1/3rd of fibula of right leg was found by him.
PW.6 Dr. Ram Singh, Reader, Department of Medicines, Medical College, Chandigarh, had conducted autopsy on the dead body of Khazan Singh on 26.9.1995 at about 12.15 P.M. He found the following injuries on his person:-
"1. Infected wound lower 1/3rd left leg, bones were visible through it. Anteriorly with infected slough coming out of it.
2. Infected wound 2.5 x 2 cm lateral part of left lower leg 1/3rd.
3. Infected wound 3 x 2cm sloughed part at left lower leg medio posterior.
4. Stitched wound left lateral finger base.
5. Lacerated wound with scab formation on right leg lower 1/3rd lateral aspect."
As per the opinion of this witness, his brain was congested and edema was present. In chest, there was 200 CC of puss wherein Criminal Appeal No. 439-SB of 2002 7 each pleural cavity and trachea showed tracheotomy, lungs were congested, full of puss. Liver, spleen and kidneys were also congested. Kidneys were full of puss. There was a fracture of both bones of left lower leg. According to the opinion of this witness, the cause of death was septicemia which was sufficient to cause death in due course of time and nature of injuries. The time between the injuries and death, according to this witness, was 11 days. In cross-examination, this witness stated that it was not possible for him to opine as to on which date septicemia developed. In his opinion, septicemia could develop within 24 hours of the occurrence.
Besides the statement Ex.PN made by deceased Khazan Singh, the prosecution examined Karambir, brother of Khazan Singh, as PW.1. As per this witness, he had witnessed the occurrence. He stated that on 13.9.1995 at about 7.00 A.M., he along with his nephew Shamsher Singh was working in the fields, when Khazan Singh came to see the paddy crop. Meanwhile, all the five accused came there. Krishan Lal was armed with Gandasi, Raja Ram was armed with kulhari, Shamsher Singh was armed with Jaili, whereas Balbir Singh and Kuldeep Singh were armed with lathi. All these accused had given injuries to Khazan Singh. Accused Krishan Lal gave a gandasi blow on the left leg of Khazan Singh, Shamsher Singh gave a jailli blow on the ankle of his right leg, Raja Ram gave a gandasi blow on the left hand of Khazan Singh. Balbir Singh gave a lathi blow on the back side of left leg of Khazan Singh. Kuldeep Singh gave a gandasi blow on the right side of the right leg of Khazan Singh. Thereafter, Khazan Singh became unconscious and fell down on the ground. Thereafter, the accused ran Criminal Appeal No. 439-SB of 2002 8 away from the spot along with their weapons. This witness has further corroborated the motive spelt out by Khazan Singh in his statement Ex.PN. It was further stated that on 30.9.1995, all the accused were in the custody of police and got recovered their weapons in pursuance of the disclosure statement made by them. In cross-examination, this witness further stated that Sham Singh, witness, is stated to be a son of deceased Khazan Singh, who was a student at Asandh. He was a daily passenger. On that day i.e. 13.9.1995, he was on leave. The following portion of the cross-examination of this witness is necessary to be noticed:
"...Myself and Sher Singh did not inform the police about this occurrence at that time. I did not mention anything about this occurrence to anybody in the village. Nor Sher Singh had mentioned. I did not see any injury on the person of any accused at that time. We did not try to catch the accused..."
According to this witness, he and Shamsher Singh along with Jagdish, Malkit Singh and Ram Diya got admitted Khazan Singh at Primary Health Centre at Rajound at about 11.00 A.M. He further stated that they remained in the hospital upto 6.30 P.M. and they came to the house as the injured was referred to the Civil Hospital, Kaithal. This witness has stated that Malkit Singh, Ram Diya and Jagdish took Khazan Singh to Civil Hospital, Kaithal, in their presence. The following lines of his cross-examination read as under:-
"...Till the removal of injured from Rajound, no police came in the hospital at Rajound. While going Criminal Appeal No. 439-SB of 2002 9 from our houses, we did not go to the police station..."
It will be necessary here to reproduce the following portion of the cross-examination of this witness:-
"...I did not see any injury on the person of Krishan and Balbir accused. I never came to know about the injuries on Krishan and Balbir nor I came to know that Krishan and Balbir were admitted in Civil Hospital Assandh and they were examined there on 13.9.95..."
Sher Singh son of deceased Khazan Singh appeared as PW.2. He reiterated the version given by PW.1 Karambir. This witness stated that they started from the place of occurrence at about 7.30 A.M. and reached Rajound Hospital at about 9.30 A.M. In cross-examination, this witness stated that "we produced my injured father at 10-11 A.M. on 13.9.95. We removed the injured Khazan Singh from Rajound Hospital at about 10-11 A.M. to Civil Hospital, Kaithal. We reached at C.H. Kaithal at about 1.50/2.00 P.M." This witness further stated that he and Karambir went to Police Station Rajound on 13.9.1995 at about 10-11 A.M. They had met the Station House Officer and told the whole story to him. His statement as recorded by the police and he gave report to the police at about 10-11 A.M. on 13.9.1995. This portion of the cross-examination being important is reproduced below:
"...Myself and Karambir went to the Police Station Rajound on 13.9.95 at about 10-11 A.M. We met the S.H.O. and told the whole story to him. My Criminal Appeal No. 439-SB of 2002 10 statement was recorded by the police. We gave report to the police at 10-11 A.M. on 13.9.95..."
He further stated that they have not informed anybody in the village regarding the occurrence. They remained with their father for about 10-15 minutes and thereafter returned to the village. According to this witness, his father Khazan Singh expired on 24.9.1995. He further stated that "my father did not cause any injury to the accused".
PW.3 Balwan stated that on 13.9.1995, he came to know that Khazan Singh had received injuries. They went to the Civil Hospital, Kaithal. On 22.9.1995, Khazan Singh was referred to P.G.I. as his condition was serious. On 23.9.1995, they reached P.G.I., Chandigarh along with Mani Ram and on 24.9.1995, Khazan Singh died and on 26.9.1995 post mortem examination on the dead body of Khazan Singh was conducted at General Hospital, Chandigarh.
PW.4 Sukhbir Singh, Patwari, had prepared the scaled site plan Ex. PF.
PW.7 Jai Singh, Head Constable, stated that on receipt of ruqa Ex.PG/2, he went to Primary Health Centre, Rajound and thereafter to Civil Hospital, Kaithal and had recorded the statement Ex.PN of deceased Khazan Singh, on the basis of which formal FIR Ex.PN/2 was registered. PW.9 Randhir Singh, Sub Inspector/Station House Officer, Police Station Rajound, stated that on 24.9.1995 he received a wireless message regarding the death of Khazan Singh from P.G.I., Chandigarh. On 25.9.1995, he could not go to P.G.I., Chandigarh, as the roads were blocked due to floods and no transport was available. He got the post mortem examination conducted on the dead body of Khazan Singh on Criminal Appeal No. 439-SB of 2002 11 26.9.1995 and on 28.9.1995, the offence was converted into 302 IPC. He further deposed regarding recovery of weapons from the accused. After the closing of prosecution evidence, the statement of accused, under Section 313 Cr.P.C., were recorded. All the incriminating evidence was put to the accused. The same was denied by them. However, appellant Krishan Lal gave the following version:-
"...I have been falsely involved in this case. In fact, on 13.9.95 Balbir Singh, my co-accused, had gone near the place of occurrence to answer the call of nature. However, Khazan Singh also reached there while he was armed with a lathi. He abused Balbir Singh as he belongs to Majhbi Sikh caste on the plea that injuries were given by Majhbi Sikh to his brother Jagdish. Balbir Singh told him that he should not abuse and however, Khazan Singh caused injuries to Balbir Singh with lathi. I tried to save Balbir Singh and however, Khazan Singh gave me as well lathi blow on my head. Hence, myself and Balbir caused injuries on the leg of Khazan Singh in our self defence. The land of Gurbax is not on lease with deceased Khazan Singh or his family member including Karambir and Shamsher alias Sher Singh. Infact, Gurbax cultivates his land himself. Myself and Balbir Singh were admitted in PHC Assandh for treatment of injuries caused by Khazan Singh on the same day and the Medical Officer had also sent Criminal Appeal No. 439-SB of 2002 12 ruqa to the Police Station in pursuance of which police of Police Station Rajound had visited PHC Assandh and recorded our statement. Karambir and Shamsher Singh were not present at the spot..."
Accused Kuldeep Singh, Raja Ram and Shamsher Singh stated that they have been falsely implicated in the present case. However, appellant Balbir Singh alias Bhira reiterated the version given by appellant Krishan Lal.
In defence, the accused had examined Dr. Wazir Singh as DW.1, who, at the relevant time, was posted as Medical Officer at Civil Hospital, Asandh. He had medicolegally examined appellant Krishan Lal on 13.9.1995 at about 2.20 P.M. and found the following injuries on his person:
"...Lacerated wound with diffuse swelling on the right parietal eminence of the skull. Wound bleeds on touch. Injury was advised X-ray. Size of the wound was 0.8 cm X .3 cm x .3 cm..."
On the same date and time, he also examined appellant Balbir Singh alias Bhira and found the following injuries on his person:
"1. Bruise with diffuse swelling was present on the thumb of right hand. Bruise was reddish in colour. Injury was advised X- ray.
2. Bruise with abrasions on the right forearm.
Bruise was reddish in colour. X-ray was advised.Criminal Appeal No. 439-SB of 2002 13
3. Semi linear abrasion was present on the left arm. Intervening area was bruised in between. Bruise area was reddish in colour..."
In cross-examination, this witness stated that he is not in a position to say that the injuries suffered by the accused are simple or grievous in nature. No other witness was examined in defence.
During the course of arguments, three arguments have been raised for the consideration of this Court:-
i) That appellants Krishan Lal and Balbir Singh alias Bhira have taken a definite stand in their statements recorded under Section 313 Cr.P.C that they had caused injuries to deceased Khazan Singh but other appellants namely, Raja Ram, Shamsher Singh and Kuldeep Singh were not present at the spot and they have been falsely implicated due to consultations and deliberations; delay in recording of the FIR should be taken into consideration and the grant of benefit of doubt to them especially when the presence of appellants Krishan Lal and Balbir Singh alias Bhira, injured/accused is stamped at the spot.
ii) Firstly, it has been urged that the prosecution has not explained the injuries on the person of appellants Krishan Lal and Balbir Singh alias Bhira.
Thus, the origin and genesis of the occurrence has been suppressed by the prosecution and appellants Criminal Appeal No. 439-SB of 2002 14 Krishan Lal and Balbir Singh alias Bhira acted in the right of self-defence. Therefore, this appeal should be accepted.
iii) Lastly, it has been urged that as per medicolegal report and post mortem examination report, the death of Khazan Singh was a result of septicemia and not of direct blows. The injuries on the person of Khazan Singh were on the non vital parts of the body i.e. left feet, left little finger and on the right ankle joint. Thus, the offence, if any will fall under Section 326 IPC and not under Section 304 Part-II IPC.
As per the dying declaration Ex.PN, which has been recorded by PW.7 Jai Singh, Head Constable, the following facts emerged:-
1. It has been stated in the dying declaration that "I also, in self defence, caused injuries to them".
2. Karambir Singh, brother and Sher Singh, son were attracted to the spot from the nearby fields.
3. On falling on the spot, deceased Khazan Singh was lying unconscious and he regained his consciousness at Civil Hospital, Kaithal, on 14.9.1995 after more than 32 hours.
It has been held by a Division Bench of this Court in Kanwal Singh and Others v. State of Haryana 2006(3) Recent Criminal Reports 783 that it is not necessary that the dying declaration should be taken as a whole and as a gospel truth. In the following portion of the Criminal Appeal No. 439-SB of 2002 15 said judgment, it has been held as under:
"...In view of the above, this Court is faced with the situation as to whether the dying declaration could be believed in part and acted upon to sustain the guilt of one person.
In Godhu and another V. State of Rajasthan AIR 1974 SC 2188 it was held that if a part of the dying declaration has not been proved to be correct, it did not necessarily result in the rejection of the whole of the dying declaration. The part of the dying declaration, which is found to be trustworthy could be relied upon :-
"We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct. It must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be Criminal Appeal No. 439-SB of 2002 16 justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct."
Similarly in Narain Singh and another V. State of Haryana 2005 SCC (Criminal) 185, the Court disbelieved a part of dying declaration and acted upon the rest of the same in sustaining the finding of guilt :-
"Though in law there is no bar in acting on a part of the dying declaration, it has to Criminal Appeal No. 439-SB of 2002 17 pass the test of reliability. Section 32(1) of the Indian Evidence Act, 1872 (in short "the Evidence Act") is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination it is not creditworthy. A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding the circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross-examination. The dying declaration if found reliable can form the base of conviction."
In the light of the above observations made in Kanwal Singh's case (supra), the dying declaration was discarded and it was held that an attempt was made to rope into the entire family of the Criminal Appeal No. 439-SB of 2002 18 husband of the victim.
Thereafter, the Court, after sifting grain from the chaff gave benefit to those accused whose participation in the occurrence was doubtful. In the present case, as per the testimony of PW.5 Dr. Lajja Ram, only five injuries were found on the person of Khazan Singh, which were on the non-vital parts of the body. The portion where the injuries were caused were the little finger of the left hand, feet of left leg and the ankle of the right leg. For each injury, one accused has been nominated. According to the dying declaration, PW.1 Karambir Singh and PW.2 Sher Singh had witnessed the occurrence. As per the testimony of both these witnesses, after the occurrence had taken place at 7.00 A.M., the injured was brought to the Primary Health Centre, Rajound. PW.5 Dr. Lajja Ram had sent ruqa Ex.PG/2 to the Station House Officer, Police Station Rajound on 13.9.1995 at about 7.30 P.M. In the medicolegal report Ex.PG/1, time of arrival of Khazan Singh has been noted as 13.9.1995 at about 7.00 P.M. As per PW.2 Sher Singh, son of deceased Khazan Singh, whose cross-examination has been reproduced above, they had reached Rajound Hospital at about 9.30 A.M. They had produced their injured father at about 10-11 A.M. on 13.9.1995 and thereafter they had taken Khazan Singh from Rajound Hospital at about 10-11 A.M. to Civil Hospital, Kaithal. This assertion of the witness is against the documentary evidence. As per the medicolegal report Ex.PG/1, arrival of deceased Khazan Singh has been recorded as 7.00 P.M. PW.2 Sher Singh further stated that they went to Police Station Rajound on 13.9.1995 at about 10-11 A.M. and gave a report to the police at about 10-11 A.M. and their statement was also Criminal Appeal No. 439-SB of 2002 19 recorded by the police, whereas PW.1 Karambir Singh stated that till deceased Khazan Singh was removed from the Rajound Hospital to Civil Hospital, Kaithal, no person from the police came to the hospital. This contradicts the testimony of PW.7 Jai Singh, Head Constable and PW.5 Dr. Lajja Ram and the documentary evidence to this effect Ex.PG and Ex.PG/2. Furthermore, as per PW.1 Karambir Singh, they had not seen any injury on the person of Krishan and Balbir accused and they never came to know that they had received the injuries and were admitted in Civil Hospital, Assandh. According to PW.2 Sher Singh, his father had not caused any injury to the accused, whereas as per DW.1 Dr. Wazir Singh, there were injuries on the person of Krishan Lal and Balbir Singh accused. They were admitted in the hospital before Khazan Singh was admitted at Primary Health Centre at Rajound. The time of admission of Balbir Singh and Krishan Lal, in the hospital is 13.9.1995 at about 2.20 P.M., whereas deceased Khazan Singh was admitted in the hospital on 13.9.1995 at about 7.00 P.M. Had PW.1 Karambir Singh and PW.2 Sher Singh witnessed the occurrence they would have immediately taken Khazan Singh to the hospital. For about 12 hours from the time of occurrence till arrival of Khazan Singh in Primary Health Centre, Rajound, where he remained, the prosecution witnesses had given no explanation. Rather they had told utter lie to the Court by stating that immediately deceased Krishan Lal was taken to the hospital and he was examined at about 9.30 A.M and thereafter he was taken to Civil Hospital, Kaithal. The witnesses have also not been able to explain as to why till 14.9.1995 no statement was made to the police. As per PW.1 Karambir Singh they had neither narrated the occurrence to the police nor to Criminal Appeal No. 439-SB of 2002 20 anybody. PW.2 Sher Singh even though stated that he made statement to the police at about 10-11 A.M. on 13.9.1995. Thus, that statement has not been produced on the record.
Another feature which cannot be ignored is that after Khazan Singh was admitted at Primary Health Centre, Rajound, the aforesaid two witnesses, who are none else than brother and son of the deceased, had not taken care and did not make any effort to look after Khazan Singh but returned to the village. It is their categoric assertion that they had not taken Khazan Singh to Civil Hospital, Kaithal. The conduct of PW.1 Karambir Singh, brother of Khazan Singh and PW.2 Sher Singh his son is unnatural, improbable and unconvincing. Therefore, it can be safely held that they had not witnessed the occurrence. So this part of the dying declaration that they were attracted to the scene of occurrence from the nearby fields is to be discounted and cannot be relied upon. No explanation is coming forward that if PW.1 Karambir Singh and PW.2 Sher Singh, brother and son of deceased Khazan Singh, respectively, had witnessed the occurrence as to why they had not made any effort to report the matter to the police before the statement of Khazan Singh was recorded by PW.7 Jai Singh, Head Constable at about 3.25 P.M. It has been stated that the deceased had suffered five injuries and each accused has been assigned one injury. Khazan Singh had stated in his dying declaration Ex.PN that he had also caused injuries in self defence. Therefore, this part of the dying declaration is to be believed and it can be safely held that Khazan Singh had explained the origin and genesis of the occurrence. However, it is also a case of Krishan Lal and Balbir Singh that they had only participated in the occurrence. They were also medicolegally examined before the medicolegal examination of deceased Khazan Singh. Thus, their presence at the spot is stamped. However, the other three appellants namely Shamsher Singh, Raja Ram and Kuldeep Singh had suffered no injury. The Criminal Appeal No. 439-SB of 2002 21 dying declaration of Khazan Singh was recorded after 38 hours of the occurrence. According to PW.5 Dr. Lajja Ram, when Khazan Singh was medicolegally examined, he was conscious and leteron due to administration of pain killers he was not able to make statement. Khazan Singh had suffered injuries on the non vital parts of the body. Therefore, a duty has been cast upon this Court to sift grain from the chaff. The injuries suffered by deceased Khazan Singh has been caused by two weapons i.e. incised and blunt. Appellant Krishan Lal is stated to be armed with gandasi, whereas appellant Balbir Singh was stated to be armed with lathi. Therefore, these injuries could have been caused by appellants Krishan Lal and Balbir Singh. Furthermore, the seat of injuries is also overlapping.
Taking totality of these circumstances into consideration, this Court is of the view that benefit of doubt can be extended to appellants Shamsher Singh, Raja Ram and Kuldeep Singh. Hence, their appeal is accepted and they are acquitted of the charges.
Having held that origin and genesis of the occurrence has been explained by the prosecution and no right of self defence accrue to appellants Krishan Lal and Balbir Singh, this Court has to determine as to what offence has been made in the present case. The trial Court noticed the contention of learned defence counsel and the judgments relied upon by him and held that the offence will fall under Section 304 Part-II IPC. It will be apposite here to reproduce the following findings given by the trial Court:-
"30. Admittedly, Khazan Singh son of Antu Ram, aged 45 years died in P.G.I., Chandigarh on 24.9.1995. He was having five injuries as already stated above. Out of these, four were on the legs and one on the little finger. As per prosecution version, he was attacked by five accused Criminal Appeal No. 439-SB of 2002 22 persons who were armed with gandasis, jailli, lathi and kulhari. After perusal of the oral evidence, which would be discussed in the following paragraphs, it can be safely said that they had caused injuries with the knowledge that the injuries might hit any part of the body and might likely cause death of injured Khazan Singh, though the accused might not having any intention to kill said Khazan Singh. Therefore, the ingredients of Section 304 Part II of the Indian Penal Code were clearly made out..."
As per the prosecution evidence, occurrence in the present case had taken place on 13.9.1995, whereas deceased Khazan Singh died on 24.9.1995 i.e. after 11 days of the occurrence. In B.N. Kavatakar and Another v. State of Karnataka 1994 Suppl. (1) Supreme Court Cases 304, it was held as under:-
"9. The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34 IPC..."Criminal Appeal No. 439-SB of 2002 23
After converting the offence from Section 302 to 326 IPC in B.N. Kavatakar's case (supra), sentence of three years was awarded. However, in the present case, the injuries were on the non vital parts of the body of deceased but the cause of death was septicemia and the deceased died after 11 days of the occurrence. The injuries caused by appellant Krishan Lal with incised weapon. He had caused fracture of both bones of left leg near feet. Thus, the offence will fall under Section 326 IPC and not under Section 304 Part-II IPC. Their conviction under Section 304 Part II IPC cannot be sustained in the eyes of law. In these circumstances, appellant Krishan Lal is held to be guilty of offence under Section 326 IPC substantially, whereas appellant Balbir Singh will be liable for the offence under Section 326 read with Section 34 IPC.
This Court is also conscious of the fact that occurrence, in the present case had taken place in the year 1995 and a period of about 16 years is going to elapse. The appellants have suffered protracted trial. Hence, appellant Krishan Lal is sentenced to undergo rigorous imprisonment for a period of three years for the offence under Section 326 IPC. Similarly appellant Balbir Singh is also sentenced to undergo rigorous imprisonment for the same period for the offence under Section 326 read with Section 34 IPC. However, their fine and default clauses are maintained.
As a result of the above discussion, appeal of appellants Shamsher Singh, Raja Ram and Kuldeep Singh is accepted by granting them benefit of doubt and they are acquitted of the charges. However, with conversion in the offence and modification in sentence awarded to appellants Krishan Lal and Balbir Singh, their appeal is disposed of.
(Kanwaljit Singh Ahluwalia) Judge July 21st, 2011 "DK"