Punjab-Haryana High Court
Mahavir And Others vs State Of Haryana on 9 November, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.756-DB of 2006 1
Criminal Revision No.2631 of 2006
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:November 09, 2011
Criminal Appeal No.756-DB of 2006
Mahavir and others ......Appellants
Versus
State of Haryana .......Respondent
Criminal Revision No.2631 of 2006
Ishwar Singh ......petitioner
Versus
Mahavir and others .......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vinod Ghai, Advocate,
for the appellants.
Mr.Sandeep Vermani, Addl.A.G.Haryana.
Mr.Raj Mohan Singh, Advocate,
for the complainant.
****
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned appeal as well as criminal revision will be disposed of as these have arisen out of a Criminal Appeal No.756-DB of 2006 2 Criminal Revision No.2631 of 2006 common judgment.
Complainant Ishwar Singh made a statement before ASI Sahab Singh on 18.9.2005 at 11.40 pm that on the said day, he was present in his house along with his wife Bimla, aunt Savitri, wife of Sita Ram and Babita, wife of Subhash. At about 5 pm, Ram Bilas, Jai Parkash, Daya Kishan, Mahavir, Suresh Kumar and Ramesh Kumar, armed with sticks and iron rods, trespassed into his house. The complainant was in the bathroom at that time. Ram Bilas gave an injury on the person of Bimla, Jai Parkash inflicted injuries with his stick on the person of Savitri and Mahavir gave a stick blow on the person of Babita. Daya Kishan, Suresh and Ramesh also inflicted injuries on the person of the ladies with sticks. He saw the occurrence while sitting in the bathroom. Out of fear, he did not venture to come out of the bathroom. After inflicting injuries on the ladies, the assailants said that the person actually wanted by them was not present and so they should proceed towards the bus stand and try to find him and teach him a lesson for getting them challaned. The assailants then ran towards the bus stand with their respective weapons. He followed them. When the assailants reached the bus stand, Din Dayal, his father's elder brother, was seen coming from the side of Girls school. Ram Bilas then said that the person, who was actually wanted, had come. The assailants then rushed towards Din Dayal. Ram Bilas inflicted a rod blow on the head of Din Dayal, whereas, Jai Parkash inflicted a stick blow on the head of Din Dayal. Mahavir inflicted a stick blow on the face of Din Dayal. Ramesh and Daya Kishan also inflicted injuries with their Criminal Appeal No.756-DB of 2006 3 Criminal Revision No.2631 of 2006 sticks on the person of Din Dayal. He remained standing at some distance and raised alarm. Din Dayal fell on the ground. On hearing his alarm, Rajpal Rajput and Subhash reached at the spot. Thereafter, all the assailants left the spot with their respective weapons. While leaving they said that on that day they have been saved but they would kill them later. After arranging for conveyance, injured was removed to General hospital, Bhiwani for treatment. He was not aware as to where other male and female members of his family had been taken for treatment. Din Dayal was referred to PGIMS, Rohtak on account of his serious condition. Din Dayal had not regained his consciousness after the occurrence. On the basis of the statement of the complainant, formal FIR No.58 dated 19.9.2005 was registered under Sections 147, 148, 149, 323, 452 and 506 of the Indian Penal Code, 1860 (IPC for short) at Police Station Baund Kalan. On 26.9.2005, offence under Section 307 IPC was added as injury on the person of Din Dayal was declared dangerous to life. Din Dayal died on 10.10.2005 at 11.30 pm. Thereafter, offence under Section 302 IPC was added on 11.10.2005.
After completion of investigation and necessary formalities, challan was presented against the accused. Prosecution in order to prove its case examined 23 witnesses.
Accused Mahavir, Suresh, Rajesh and Satyawati, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), after the close of prosecution evidence, prayed that they were innocent and had been falsely involved in the Criminal Appeal No.756-DB of 2006 4 Criminal Revision No.2631 of 2006 case. In fact, the complainant party had been attacked by the accused party at the shop of Daya Kishan and Rajesh. Satyawati reached there as an intervener and sustained injuries. Din Dayal sustained injuries at the hands of the crowd that had gathered in front of their shop. In fact, no occurrence as alleged had taken place.
Accused Ram Bilas, Roshni, Daya Kishan, Ramesh Kumar, Manju and Jag Ram, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed that they were innocent and were not present at the spot.
Accused Jai Parkash, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed that he was innocent. On the day of occurrence, he was not present at the spot as he was on duty. He was serving in the Army.
Learned counsel for the appellants has submitted that the prosecution had miserably failed to prove its case. Accused were closely related to each other and had been falsely involved in the case. Appellant Jag Ram was not present in the village on the alleged day of occurrence. He was working as Hawaldar/ Clerk with the Army and was on duty at New Delhi. The investigation conducted in the present case was tainted as injuries on the person of accused Mahavir, Satyawati, Daya Kishan and Rajesh had not been explained. In fact, house of Ram Bilas was opposite the house of the complainant party and due to this reason, accused had been falsely involved in the case. Appellants Rajesh, Jag Ram, Satyawati, Manju and Roshni were not named in the FIR. There was Criminal Appeal No.756-DB of 2006 5 Criminal Revision No.2631 of 2006 also no mention in the FIR that the assailants were accompanied by some other persons. After due deliberations and consultations names of the said accused had been introduced during investigation. No injury was attributed to accused Daya Kishan, Suresh and Ramesh. No reliance could be placed on the statements of the eye witnesses.
Learned State counsel, who is assisted by the learned counsel for the complaint, on the other hand, has submitted that the prosecution had been successful in proving its case. The ocular version was duly corroborated by medical evidence. The accused had got themselves admitted in the hospital at 1 am on 19.9.2005, whereas, the incident had taken place around 5 pm on 18.9.2005. Hence, the injuries on some of the accused were self suffered.
The present case rests on an eye witness account. As per the prosecution case two incidents had occurred on 18.9.2005. The first incident had occurred in the house of the complainant, whereas, the second incident had occurred near the bus stand. In this regard the prosecution has examined complainant Ishwar as PW-7, injured Bimla as PW-8 and Subhash son of Sita Ram as PW-9.
Let us examine the statements of the eye witnesses to come to the conclusion as to whether the first incident, as alleged by the prosecution witnesses, had taken place.
As per PW-7, PW-8 and PW-9, on 18.9.2005, at about 5 pm, all the accused, armed with iron rods and sticks, had come to their house and had inflicted injuries on the person of Savitri, Babita Criminal Appeal No.756-DB of 2006 6 Criminal Revision No.2631 of 2006 and Bimla. All the said witnesses have further deposed that the assailants then left towards the bus stand in order to locate the actual victim. Complainant Ishwar has deposed that out of fear, he did not intervene and remained sitting in the bathroom and had seen the occurrence from there. PW-9 Subhash has deposed that he was alone and frightened so he rushed towards the bus stand where his uncle was running a mechanic shop. Thereafter, PW-7 and PW-9 separately reached the bus stand where the assailants on seeing Din Dayal attacked him and inflicted injuries on his person.
Thus, as per the eye witness account, initially all the assailants had trespassed into the house of the complainant party and had inflicted injuries on the three ladies present there. It is surprising that complainant was present in the bathroom of his house and did not come out to rescue his wife and other two ladies, who were being attacked by the accused. In his cross-examination, complainant deposed that he had concealed himself in the bathroom as he was frightened and did not make any effort to save the ladies from the clutches of the accused persons. He did not raise alarm to attract anybody to the seen of occurrence nor he sought help from the neighbourhood after coming in the street. He did not take care of the injured ladies in the house and immediately went out and followed the accused towards the bus stand. He further deposed that the accused persons, after entering the house, started inflicting injuries on the person of the ladies but did not search for anyone else. Thus, it appears that the part of the statement of this witness qua the incident, which had occurred in his house, cannot be Criminal Appeal No.756-DB of 2006 7 Criminal Revision No.2631 of 2006 believed. In normal course of circumstances, the complainant would have certainly come out and tried to rescue his wife and other ladies or would have raised alarm. He would have atleast made some arrangement for treatment of the injured ladies. All these circumstances lead to the inference that accused had not trespassed into the house of the complainant nor had caused injuries to the ladies as alleged in the house.
Similarly the statement of PW-9 Subhash qua injuries inflicted by the accused on the person of Savitri, Babita and Bimla cannot be relied upon. The said witness saw the occurrence but did not bother to intervene and save the ladies. Even, thereafter, he left the spot without raising alarm. This witness has said that he was all alone but after the occurrence he should have noticed that complainant was also present in the house. Moreover, as per the FIR, PW-9 Subhash had reached the spot after the accused had inflicted injuries on the person of Din Dayal. In his cross- examination, he deposed that he was residing in the same house along with Ishwar. He did not raise any hue and cry after noticing the injuries inflicted by the accused on the person of the ladies. He did not see the complainant in the house. He did not inform the police or any other person qua the occurrence witnessed by him. He did not accompany the injured to the hospital. Thus, from the combined reading of the FIR and the statement of PW-9, it is evident that the said witness had not witnessed the occurrence and had been introduced as a witness during investigation.
PW-8 Bimla is one of the injured ladies. She has Criminal Appeal No.756-DB of 2006 8 Criminal Revision No.2631 of 2006 deposed qua the injuries inflicted on her person and on the person of Babita and Savitri by the accused persons. However, her statement qua the occurrence in the house of the complainant party fails to inspire confidence. The said witness, in her cross- examination, has deposed that they did not raise alarm after the accused had left the spot. The accused had not inquired about any male member from them nor had made any search qua any male member in their house. Thus, the occurrence actually taken place in the house of the complainant as alleged, the ladies would have raised alarm on account of injuries inflicted on their person. Hence, the statement of PW-8 qua the occurrence, which is alleged to have taken place in their house also fails to inspire confidence.
In case the accused had come to the spot with a view to inflict injuries on the person of Din Dayal, they would have inquired about him before inflicting injuries on the person of the ladies. Rather PW-7 and PW-8 have specifically deposed that the accused had not inquired about any male member nor had searched for any male member. There was no occasion for the accused to have come to the house of the complainant party and inflict injuries on the person of the ladies without locating or asking for the real victim i.e. Din Dayal.
After going through the statements of the eye witnesses, we are of the considered opinion that no occurrence had taken place in the house of complainant as alleged.
Now let us examine the prosecution evidence to come to the conclusion as to whether second incident had taken place or not. Criminal Appeal No.756-DB of 2006 9 Criminal Revision No.2631 of 2006 In this regard the prosecution witnesses have stated that the occurrence had taken place near the bus stand. All the accused had inflicted injuries on the person of deceased Din Dayal. However, the case of the accused is that the occurrence had taken place in front of the shop of Rajesh and Daya Kishan and four persons from the accused side had suffered injuries. Thus, admittedly, the occurrence had taken place on 18.9.2005, wherein, deceased Daya Kishan had suffered injuries. Similarly, some persons had suffered injuries from the accused as well as the complainant side. Hence, it would be necessary to examine the evidence on record to come to the conclusion as to what manner the occurrence had taken place.
PW-7 has also deposed qua the occurrence which had taken place near the bus stand. As per PW-7 all the accused were armed with iron rods/ sticks and had inflicted injuries on the person of Din Dayal. Ram Bilas had given an iron rod blow on the head of the deceased. Jai Parkash, Mahabir and Daya Kishan had inflicted injuries with sticks on the person of Din Dayal. Ramesh, Jag Ram, Rajesh and Suresh had also inflicted injuries on the person of Din Dayal.
Let us look at the medical evidence available on record in this regard.
PW-18 Dr. Vikas Malik deposed that on 18.9.2005, he had medico legally examined Din Dayal and had found following injuries on his person:-
"1. stitched wound of size 5 cm over head on bregma and having four stitches.Criminal Appeal No.756-DB of 2006 10
Criminal Revision No.2631 of 2006
2. Swelling were both eyes.
3. Left lateral incisor tooth were broken.
4. Swelling over left leg on lateral side below knee. No external injury could be seen.
5. Swelling all over forehead."
All the injuries were kept under observation and had been caused with blunt weapon within six hours. At the time of admission, patient was unconscious and had been brought by his nephew Ishwar at 7.15 pm on 18.9.2005 with the history of assault at 5 pm on 18.9.2005 near Girls School Sanjarwas.
PW-20 Dr. Deepak Gupta deposed that on police request he declared the patient unfit to make statement on 18.9.2005. On the same day, the patient was discharged on request. He had referred the patient vide Mark 'A' as the relatives of the patient were not satisfied with the treatment provided to him.
A perusal of Mark 'A' reveals that patient Din Dayal was referred to higher center, Delhi.
PW-23 Dr.Satpal Bhanot deposed that on 26.9.2005, he had declared injury on the person of Din Dayal as dangerous to life on police application.
PW-2 Dr.Amit Rustagi deposed that patient Din Dayal died on 10.10.2005 at 11.30 pm and proved his death certificate.
PW-10 K.D.Sharma proved the treatment record of Din Dayal from 19.9.2005 to 10.10.2005 given at Maharaja Aggarsain Hospital, New Delhi.
PW-12 Dr.Manoj Dhingra deposed that on 11.10.2005, he Criminal Appeal No.756-DB of 2006 11 Criminal Revision No.2631 of 2006 conducted the postmortem examination on the dead body of Din Dayal and found following injuries on his person:-
"1. Abrasion over right ear was present
2. Abrasion and swelling of left foot was present.
3. Tracheotomy wound was present.
4. Healed stitched wound present on right parietal region of 5 cm in size.
5. Swelling over left leg was present below knee joint.
6. Fracture of fronto parietal bone extending to left side parietal region.
Fracture present over fronto tempo parietal bone on right side extended to left side of parietal bone. Subural haemotomma present on left parietal temporal region and on right occipital region. Subural haemotomma on right occipital region was present as there was fracture of bilateral middle cremial fossa Abdomen cavity contained haemotoma at lower pelvis region."
In his opinion, the cause of death was coma as a result of head injury to blunt force impact. All the injuries were ante mortem in nature.
PW-11 Dr.S.C.Gupta deposed that on 18.9.2009, he had medico legally examined Savitri and had found following injuries on her person:-
"1. An incised wound of size 1 cm x .25 cms x skull deep on Criminal Appeal No.756-DB of 2006 12 Criminal Revision No.2631 of 2006 the left forearm. 2 inches above the wrist joint, margins were smooth and regular and clotted blood was present around the injuries.
2. An incised wound of size 1 cm x .25 cm x skin deep, on the interior aspect of the left forearm just above injury No.1. Injury was extending obliquely, margins were smooth and regular, clotted blood was present around the injuries.
3. Raddish contusion on the antero lateral side of the left upper arm just near the shoulder joint. Size 4 cm x 3 cm, injury was tender on touch, movements were painful but not restricted."
All the injuries were simple in nature and the kind of weapon used for injuries No.1 and 2 was sharp and for injury No.3 it was blunt.
On the same day, he had examined Babita and had found following injuries on her person:-
"1. Reddish contusion of size 6 cms x 4 cms on the back of the left elbow joint. Injury was tender on touch, movements were painful and restricted. Advised X-ray of left elbow.
2. Reddish contusion of size 4 cms x 2 cms on the right thigh. Injury was tender on touch, movements were painful but not restricted."
Injuries on her person, after seeing the X-ray, were declared simple in nature and the kind of weapon used was blunt. Criminal Appeal No.756-DB of 2006 13 Criminal Revision No.2631 of 2006 On the same day, he had examined Bimla and had found following injury on her person:-
"Complaining of pain, all over the abdomen, she was also complaining difficulty during micturation. Advised ultra sound abdomen."
Injury on her person was declared simple in nature and the kind of weapon used was blunt.
DW-2 Dr. Rajender Rai deposed that on 19.9.2005, he had medico legally examined Mahabir and had found following injuries on his person:-
"1. Fresh lacerated wound with bleeding was present 1 cm long x 5 cm x bone deep over right side of head/ oblique frontal area. Advised X-ray and surgeon opinion.
2. Complaining of pain and tenderness over front and sides of chest. Advised surgeon opinion.
3. Complaining of pain and tenderness over abdomen. Advised surgeon opinion."
In his opinion, the kind of weapon used was blunt and the nature of injuries were simple.
On the same day, he had medico legally examined Satyawati and had found following injury on her person:-
"1. Fresh lacerated wound 3 cms x 1 cm x bone deep over right side of head in frontal area, oblique. Advised X-ray and surgeon opinion.
2. Complaining of pain and tenderness over front and sides of chest. Advised surgeon opinion.
3. Complaining of pain and tenderness over abdomen. Advised surgeon opinion."
In his opinion, the kind of weapon used was blunt and the nature of injuries was simple.
Criminal Appeal No.756-DB of 2006 14Criminal Revision No.2631 of 2006 On the same day, he had medico legally examined Daya Kishan and had found following injuries on his person:-
"1. Fresh incised wound with bleeding was present 4 cms x 1 cm x bone deep over left lower arm, posterior lateral side. Advised X-ray and ortho opinion.
2. Fresh incised wound oblique 2 cms x .5 cm x depth not measured over left abdomen Advised surgeon opinion.
3. Multiple linear cuts, fresh bleeding was present over left palm. Advised ortho opinion.
4. Complaining of pain and tenderness over upper part of back of neck, Advised X-ray and surgeon opinion.
5. Complaining of pain and tenderness over front and sides of chest and back, Advised surgeon opinion.
6. Complaining of pain and tenderness over abdomen. Advised surgeon opinion."
In his opinion, the kind of weapon used for injuries No.1 to 3 was sharp edged and remaining injuries was blunt and the nature of injuries were simple.
On the same day, he had medico legally examined Rajesh and had found following injuries on his person:-
"1. Bluish red echymosis of right lower eyelid. Tenderness was present. Advised eye surgeon opinion.
2. Red contusion abrasion with swelling, tenderness over right upper forearm, or posterior lateral side. Advised ortho opinion.
3. Complaining of pain and tenderness, over front and Criminal Appeal No.756-DB of 2006 15 Criminal Revision No.2631 of 2006 sides of chest. Advised surgeon opinion.
4. Complaining of pain and tenderness over abdomen. Advised surgeon opinion."
In his opinion, the kind of weapon used was blunt and the nature of injuries was simple.
Thus, as per the medical opinion, deceased Din Dayal had been treated for injuries on his person from 19.9.2005 onwards but he succumbed to his injuries on 10.10.2005. From the complainant side, Savitri, Babita and Bimla had suffered injuries. From the accused side, Rajesh, Satyawati, Mahabir and Daya Kishan had suffered injuries. Although in the FIR there is no mention or explanation qua the injuries on the person of the accused party but PW-8 Bimla, in her examination-in-chief, has deposed that they had also caused injuries to the accused party in their private defence. Thus, from the ocular as well as medical evidence, it transpires that in an occurrence, which had taken place near bus stand, both the sides had suffered injuries. Civil litigation was pending between the parties with regard to the street running between the houses of both the parties. It appears that both the parties, armed with weapons, had quarreled with each other at the bus stand which resulted in injuries to both the sides. Din Dayal has, however, died on account of the injuries inflicted on his person.
So far as accused Rajesh, Jag Ram, Satyawati, Manju and Roshni are concerned, their presence at the spot is doubtful as the names of the said persons were not mentioned by the complainant at the time of recording of his initial statement before the Criminal Appeal No.756-DB of 2006 16 Criminal Revision No.2631 of 2006 police which formed the basis of the FIR. The said persons were known to the complainant and in case they had been present at the spot, the complainant would have disclosed their names at the time of recording of his initial statement. Moreover, in the initial version given by the complainant, Ex.PA, it is not mentioned that the six accused named by him were accompanied by some other persons. A perusal of Ex.DD dated 23.9.2005 and Ex.DD-1 dated 25.9.2005, the applications moved seeking remand of accused Mahabir and Daya Kishan, reveals that the names of accused Rajesh, Jag Ram, Satyawati, Manju and Roshni are not mentioned therein. It appears that thereafter, the names of the said accused were added by way of recording statement of Bimla to involve them falsely in the case. It appears that the statement of Bimla might have been ante dated to involve the abovesaid accused falsely in the case.
So far as appellant Jai Parkash is concerned, it appears that he has also been falsely involved in the case being son of Jag Ram. DW-3 Hawaldar/Clerk H. Kabir, Headquarter MOD, Army (Camp) New Delhi proved certificate Ex.DJ. A perusal of the said certificate reveals that on 18.9.2005, Jai Parkash had not been granted any type of leave/permission to leave the camp. 18.9.2005 was a holiday being Sunday. There is nothing on record to suggest otherwise. Moreover, there was no occasion for the Army authorities to have issued a false certificate. The possibility that accused Jai Parkash has been falsely involved in the case cannot be ruled out.
So far as accused Mahabir, Ram Bilas, Daya Kishan, Suresh and Ramesh are concerned, from the statement of PW-7 Criminal Appeal No.756-DB of 2006 17 Criminal Revision No.2631 of 2006 and the medical evidence it stands established that the said appellants were present at the spot and in connivance with each other, injuries had been inflicted on the person of Din Dayal. On the basis of the disclosure statements suffered by accused Mahavir, Daya Kishan and Suresh before PW-21 Sub Inspector Hari Ram, during investigation, sticks were got recovered by them from the disclosed place. Accused Ram Bilas, on the basis of his disclosure statement suffered by him before SI Hari Ram, during investigation, got recovered an iron rod from the disclosed place. Accused Rajesh got recovered a stick on the basis of his disclosure statement suffered by him before PW-19 Inspector Ram Avtar. From the evidence on record, it transpires that the intention of the appellants was not to commit murder of the deceased but they had the knowledge that the injuries inflicted by them could have resulted in the death of the deceased. Hence, accused are liable to be convicted for an offence under Section 304 (II) read with 34 IPC.
Accordingly, criminal appeal is partly allowed. Appellants Jai Parkash, Rajesh, Jag Ram, Satyawati, Manju and Roshni are acquitted of the charges framed against them by giving them benefit of doubt.
Appellants Mahabir, Ram Bilas, Daya Kishan, Suresh and Ramesh are held guilty of an offence under Section 304 (II) read with Section 34 IPC and are convicted thereunder. Their conviction and sentence, as ordered by the trial Court, are set aside. The said appellants are sentenced to undergo rigorous imprisonment for eight years for commission of an offence under Section 304 (II) read with Criminal Appeal No.756-DB of 2006 18 Criminal Revision No.2631 of 2006 Section 34 IPC with a fine of ` 5,000/- each. In default of payment of fine, they shall further undergo rigorous imprisonment for six months.
Appellants Mahabir, Ram Bilas, Suresh and Ramesh, who are on bail, be taken in custody to undergo the remaining part of their sentence.
Consequently, criminal revision stands dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
November 09, 2011
anita