Punjab-Haryana High Court
Satyawan And Ors. vs The State Of Haryana on 26 May, 1995
Equivalent citations: 1995CRILJ3791
Author: S.C. Malte
Bench: S.C. Malte
JUDGMENT S.C. Malte, J.
1. These five appellants were convicted of the charges under Sections 148, 302 read with Section 149 and 325 read with Section 149 of the Indian Penal Code.
2. Briefly stated the prosecution case is as follows:--
The incident of assault took place at about 7.00 p.m. on 10-10-1989. At that time deceased Jangli (complainant) with his brother Bhim Singh were in the courtyard of their house. Then these five accused-appellants along with a juvenile offender Deva son of Chatra, arrived at the spot. Appellants Nos. 1 and 2 were armed with Jaili (an agricultural instrument having two prongs), and the remaining appellants were armed with a stick. Appellant No. 1 demanded explanation from Jangli and Bhim Singh as to why they were harassing these appellants. He further threatened to teach them a lesson. This challenge was followed by an attack by these appellants. Jangli the complainant and his brother Bhim Singh were variously injured in the attack. At a later stage, we will refer in detail to the injuries sustained by them. These victims of the assault then raised a cry. At about that time Rukmani, the mother of Jangli also came out of the house and raised shouts for help. Thereupon all these accused-appellants fled away with their respective weapons. The injured were then carried in a three-wheeler and were brought to the hospital at Sonepat. The doctor examined the injuries of both these persons and treated them. Meanwhile, he also sent an information to the police regarding the admission of these two injured persons. Assistant Sub-Inspector Pirthi Singh who was then on patrolling duty, happened to get the information from the doctor about the admission of these injured persons. He, therefore, came to the hospital. He then contacted the doctor in order to ascertain whether the injured were in a position to give a statement. After having obtained such an opinion, he proceeded to record the report of injured Jangli. That is how the First Information Report in this case came to be recorded at about 8.00 a.m. on 11-10-1989. It was duly registered at the Police Station at 8.25 a.m. on 11-10-1989. It may be mentioned here that Police Station Sadar Sonepat is at a distance of about 181/2 kilometers from Bhohla Khurd where the incident took place. Papers indicate that from 19-10-1989 to 24-10-1989 injured Jangli was indoor patient in the hospital at Rohtak. Jangli succumbed to his injuries at about 9.30 p.m. on 24-10-1989.
3. Initially, the case was registered under Sections 148 and 323 read with Section 149 of the Indian Penal Code. Later on, on the death of Jangli, the offence came to be registered under Section 302 read with 149 and 148 of the Indian Penal Code. The appellants were, thus, came to be prosecuted for the offeree under Section 302 read with 149 Indian Penal Code in respect of the death of Jangli, and under Section 325 read with Section 149, Penal Code in respect of injuries caused to Bhim Singh. The appellants were also prosecuted for offence under Section 148 of the Penal Code.
4. The trial of the juvenile offender Deva was separated.
5. The accused-appellants denied the prosecution case in toto. Appellant No. 1 claimed that complainant Jangli and Bhim Singh sustained the injuries due to falling of woodenlogs which were loaded in a tractor and which turned-turtle. He further stated that they were falsely implicated due to previous enmity. He claimed that accused Hargian (appellant No. 3) and accused Siri Om (appellant No. 5), were not present in the village. Appellant No. 2 Siri Parkash adopted to the stand taken by appellant No. 1. Appellant No. 3 Hargian claimed that he was not present and was falsely implicated. Appellant No. 4 Chattar Singh adopted to the stand taken by appellant No. 1. Appellant No. 5 Siri Om claimed that he was not present in the village at the time of occurrence and was falsely implicated. The appellants led the defence evidence to show that the electricity supply was not made available to the house of Jangli, where incident took place. The relevancy of that evidence is in respect of the availability of the light at the time of incident.
6. The Additional Sessions Judge, Sonepat, by his judgment dated 10-8-1992 convicted all these appellants. For the conviction under Section 148 of the Penal Code, each of them was sentenced to rigorous imprisonment for six months. In respect of conviction under Section 302 read with Section 149 of the Penal Code, each of the appellants was sentenced to imprisonment for life and a fine of Rs. 2,000/-, in default, rigorous imprisonment for one year. These appellants further came to be convicted under Section 325 read with Section 149 of the Penal Code in respect of the injuries caused to Bhim Singh, and each of them was sentenced to suffer rigorous imprisonment for one year and a fine of Rs. 500/-, in default, rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently. Insofar as it pertains to the period of imprisonment for a specific term, they were held to be entitled to set off of the period during which they were under trial prisoners. Out of the fine, if recorded, a sum (sic) paid to the widow of Jangli, and Rs. 2500/- to the injured Bhim Singh by way of compensation. Against that conviction and sentence, these appellants have preferred this appeal.
7. In this Court, the counsel for the appellants took us through the evidence and pointed out to us certain omissions and discrepancies in the evidence of the eye-witnesses, namely, Bhim Singh and his mother Rukmani. It was submitted that in view of the discrepancies and improvements found in the evidence of these witnesses, they cannot be said to be reliable. It was contended that the relations between the two sides were considerably strained on account of earlier litigation on the charge that deceased Jangli and Bhim Singh and others were responsible for having caused injuries to one Thambu, the brother of these injured. It was, therefore, submitted that the appellants deserve the benefit of doubt.
8. In this case, out of the two injured persons, injured Jangli passed away. Consequently, Bhim Singh, the other injured, is one of the important witnesses. In his examination-in-chief he has described the incident in detail. He testifies to the arrival of these five appellants armed variously, as stated above. He then further slates that appellant No. 1 had dealt stick blow on the head and the left arm of Jangli. Similarly, appellant No. 2 Parkash alias Siri Parkash also gave stick blow on the head and leg of Jangli. He further testifies that appellant No. 5 Siri Om also gave similar two blows, one on the head and one on the leg. He further testifies that appellant No. 2 Parkash and appellant No. 5 Siri Om gave him stick blows on the head and the arm. In respect of these details given by him, he came to be confronted with his previous statement before the police and in the Juvenile Court his cross-examination indicates that in the previous statement he had omitted to state about the stick blow given by appellant No. 2 Parkash on the leg of Jangli. In the previous statement he had omitted to state about the blows by appellant No. 5 Siri Om on the arm and the head of this witness. His explanation was that while recording the previous statement before the Juvenile Court, he was not questioned about those blows to him by appellant No. 5. He was also contradicted with his omission in the previous police statement in respect of the blows by appellant No. 2 Siri Parkash on deceased Jangli. He also seems to have made an improvement as regards the existence of electricity light in his house at the time of occurrence. In view of all these discrepancies and omissions, amounting to contradictions that were noted between in his previous statement and the deposition before the Court, it was submitted that this witness cannot be relied upon. However, in our considered opinion, the discrepancies in the testimony of the witnesses need not be always construed to mean unreliability of the witnesses. In this case, the injuries sustained by Bhim Singh are sufficient to establish that he was the victim of the assault, the number of the injuries found on his person and the person of Jangli clearly indicate that they were attacked by a group of persons. Bhim Singh had sustained in all 13 injuries, to which we will make a reference later on. Deceased Jangli had sustained in all six injuries, which we shall describe later on. Therefore, while considering the discrepancies in respect of the details of the blows, which run in quite a large number and by a group of persons, a witness is likely to commit certain mistakes. Besides that the intellectual level and the capacity to relate the story properly after about a period of 2 1/2 years since the incident, should also be taken into consideration. In view of these circumstances, in our opinion, the discrepancies and some improvements by PW-2 Bhim Singh during the course of his deposition in the Court would not necessarily result into total discarding of his evidence. All that is needed is that corroboration should be sought elsewhere to support this testimony.
9. PW-2 Bhim Singh has also further admitted that he along with deceased Jangli and others were being prosecuted on the allegations that they caused injuries to Thambu, the brother of appellant No. 1 and 5. This admission by itself also would not be sufficient to jump to the conclusion that due to enmity Bhim Singh was telling lies. Enmity between the two sides is double-edged weapon, which also provides motive to commit offence by way of revenge, just as it provides motive to implicate falsely. The evidence of Bhim Singh is sought to be supported by the testimony of PW-3 Rukmani the mother of Bhim Singh.
10. It is sufficiently established that the incident in this case took place in front of the house of the deceased and Bhim Singh. While these two persons were sitting on the cot in front of their house, these appellants allegedly assaulted. It was, therefore, quite natural that PW-3 Rukmani would come out of the house on hearing the commotion and shouts. Her presence is thus quite natural. She in general terms states that appellants No. 1 and 5 then assaulted with Jaili on the person of Jangli. She further states that appellants No. 3 and 4 gave stick blows to Jangli and Bhim Singh. She further adds that appellant No. 2 and juvenile offender Dev also inflicted stick blows on Bhim Singh and Jangli. In cross-examination, she was confronted with an omission from the statement before the police to show that before police she had not stated that appellants No. 1 and 5 were armed with Jaili. It was also indiced that she had not stated before the police as to the portion of the body on which the blows were given. She further states that since the death of Jangli, she was not able to see beyond two paces.
11. On behalf of the appellants, it was contended that Rukmani was not in a position to see. But, on proper reading of her deposition, it is clear that her eye-sight became weak since the death of her son Jangli. It was further submitted that she being the mother of the deceased, her testimony suffers from prejudices against the appellants. However, in our opinion, mere relationship with the deceased is not enough to discard evidence of a witness if the presence of such witness is quite natural and his testimony is not shaken in the cross-examination. Her testimony certainly renders support to the prosecution case to the extent that a group of persons consisting of these appellants assaulted Jangli and Bhim Singh while they were sitting on a cot in front of their house. Her testimony however does not further speak as to the extent of part played by each of the assailants.
12. The prosecution case further gets support from the statement of Jangli which was initially recorded as the First Information Report, but now can be used as a dying declaration because of the death of Jangli. It may be recalled that the incident in this case took place at about 7.00 PM in village Bhohla Khurd which is about 18 1/2 kilometers away from Police Station Sadar Sonepat. The evidence of Bhim Singh shows that in an auto vehicle they were taken to Civil Hospital at Sonepat. The doctor examined these injured and started treatment. At the same time he sent intimation to the police. ASI Pirthi Singh states that while he was on patrolling duty, he got the intimation from the doctor and thereupon he rushed to Civil Hospital, Sonepat and contacted the doctor to ascertain whether the injured were in a position to make a statement PW-1 Dr. H. K. Chhabra, who was then a Medical Officer in Civil Hospital, Sonepat, has testified that on the written request made by ASI Pirthi Singh, he certified that both these injured were in a position to make a statement. Exhibit PW-1/E bears his endorsement to that effect. It is signed by him and below that he had put the date "11-10-89", and time "7.00 AM". Dr. Chhabra is not at all shaken in respect of his opinion and endorsement that to the effect that these injured were in a fit condition to make a statement. ASI Pirthi Singh then, proceeded to write the statement of Jangli which was concluded at about 8.00 AM. The endorsement on the copy of the First Information Report shows that at about 10.00 AM on 12-10-1989 it was received by the Illaqa Magistrate at Sonepat. Jangli was later on shifted to Rohtak hospital from 19-10-1989 and was there till his death on 24-10-1989. When the stater merit of Jangli was initially recorded it was hot expected that Jangli would succumb to his injuries. The extent of internal damage to the limbs of Jangli were then to be ascertained by taking x-ray, The evidence of PW-10 Dr. Arun Kumar Gupta shows that on 12-10-1989 he took the x-ray of the injuries of Jangli. The gravity of the injuries, therefore, could be ascertained with certainty after taking the ex-ray which revealed fracture to parietal bone, fibula, tibia shaft. Shaft numerous and right scapula of the person of Jangli. Since Jangli died subsequently on 24-10-1989, the above mentioned statement made by him would fall under Section 32(1) of the Evidence Act. The statement speaks about the circumstances which resulted into the death of Jangli. The said section provides that such a statement would be relevant whether a person who made it was or was not then under the expectation of death. Such dying declarations are used as evidence as of necessity because the person making it is no more available. The use of such statements is an exception to the rule that no statement of a witness can be used as evidence without subjecting the said witness to the test of cross examination. The said statement is precise to the point though it has an overtone of professional writing by a police officer who is used to recording such statements as First Information Report. In our opinion, that statement can be considered as a corroborative piece of evidence to the prosecution case. In that statement Jangli has stated that appellant No. 1 Satyawan gave blows on his head and the arm and appellant No. 5 Siri Om gave two blows, one on the right calf and the other on the left calf. He has further stated that the remaining accused also assaulted. However, he has not given the details of blows given by each of the remaining accused. The injuries of Jangli lend support to his statement in the First Information Report turned dying declaration PW-1 Dr. Chhabra initially examined Jangli and found the following injuries on his person :--
1) Lacerated wound 5 cm x 2 cm x bone deep on the left tibial tuberosity.
2) Right leg swollen and had two minor abrasions.
3) Right up arm swollen having many redish contusions.
4) Lacerated wound 7 cm x .5 cm x bone deep on frontal region of scalp. Surrounding area swollen and clotted blood was present.
5) Lacerated wound 6 cm x .5 cm x bone deep on the, left parietal region of scalp near centre. Surrounding area swollen and clotted blood was present.
6) Lacerated wound 7 cm x .5 cm x bone deep on the left temporal region of scalp. Clotted blood present and surrounding area swollen. The doctor had advised x-rays. PW-6 Dr. Gupta took the x-rays. The x-ray result indicates that there was a fracture to the fronto parietal area, fibula, left tibia shalf and the shalf humerus.
13. Jangli has further stated in the dying declaration that his brother Bhim Singh was also assaulted by these accused by means of their respective weapons. The injuries on the person of Bhim Singh render support to the version of Jangli, witness PW-2 Bhim Singh and their brother PW-3 Rukmani. The injuries on the person of Bhim Singh were as follows:--
1) Lacerated wound 10 cm x 1 cm x bone deep on parietal region. Clotted blood was present.
2) Two lacerated wounds 2 cms apart from each other on right parietal region, size 3 cm x .5 cm. x .5 cm and 2 cm x .5 cm x .5 cm. Clotted blood was present.
3) Lacerated wound 5 cm x 1 cm x bone deep on occipital region. Clotted blood was present.
4) Lacerated wound 3 cm x 1 cm x bone deep below injury No. 3 Clotted blood was present.
5) Whole of the left upper limb was swollen with multiple contusions.
6) Penetrating wound with blunt edges size .5 cm x .5 cm x 1 cm on the left upper arm, Clotted blood was present.
7) Lacerated wound 2.5 cm x 1 cm x .5 cm on left leg, just below tibial tuberosity. Clotted blood present.
8) Lacerated wound 2 cm x .5 cm, 5 cm below injury No. 7.
9) Lacerated wound 2 cm x 1 cm x .5 cm on right shin. Clotted blood was present.
10) Lacerated wound 2.5 cm x 1 cm x .5 cm. below injury No. 9. Clotted blood was present.
11) Lacerated wound 1 cm x .5 cm x .5 cm. below injury No. 10. Clotted blood was present.
12) Right upper limb swollen and tender with multiple red contusion.
13) Lacerated wound 2 cm x .5 cm x .5 cm on the chin. Clotted blood was present.
These injuries were attributable to the blunt weapon, except injury No. 6, which was attributable to a weapon having pointed but blunt edges. All these injuries were of the duration of within 12 hours from the time of examination. X-ray examination of Bhim Singh indicated fracture of left arm shaft of humerous, left patella, left arm radius bone, right leg febula.
14. The question then remains regarding the cause of death of Jangli, PW-11 Dr. Usha Rani, who held autopsy on the dead body of Jangli, has expressed the opinion that the cause of death of Jangli was head injury and other multiple injuries coupled with the complications resulting from those injuries. She further opined that these injuries were sufficient to cause death in ordinary course of nature. In the cross-examination, she has stated that operation on the trachea had to be performed. She further adds that such operation of the trachea can cause respiratory complications and can cause cardiac arrest if not properly handled. Obviously, such an opinion regarding possible complications resulting from the operation of the trachea, is only a hypothetical case. Nothing was brought to show that in the present case the cause of death was attributable to the respiratory complications resulting from improper treatment after such an operation. On the other hand, Dr. Usha Rani is of the firm opinion that in this case the cause of death of Jangli was the head injuries coupled with other multiple injuries with internal damage. In the cross-examination, nothing was put to the doctor as to whether the operation of the trachea was a complication independent of the multiple injuries caused to him during the assault. We are, therefore, of the opinion that the injuries to the scalp coupled with multiple injuries and internal damage resulting from those injuries was the cause of death of Jangli.
15. It was further submitted by the counsel for the appellants that the prosecution case taken at the best, the offence would be under Section 304 (Part II) of the Indian Penal Code. It was further submitted that at the best such case could be against appellant No. 1 Satywan and No. 5 Siri Om, who are said to have taken part in the assault. In so far as it pertains to the question as to the offence spelt out against the appellant, the matter rests on the intention; or knowledge of the accused as to the extent of the likelihood to cause the death. The intention or knowledge can be gathered from the various factors, such as, the weapon, used, the number of blows, the nature of injuries caused, portion of the body attacked and injured. In this case, we find the weapons were the sticks (Lathis) and the Jaili (an instrument like a stick having two prongs). In all two persons, namely deceased Jangli and PW--2 Bhim Singh were the victims of the assault. Deceased Jangli has sustained in all six injuries as stated above. The x-ray examination indicated that he had sustained fracture of fronto parietal area, fibula, left tibia shaft and the shaft humberous. This indicates that he was brutally assaulted. Similar is the case in respect of PW-2 Bhim Singh, who sustained as many as 13 injuries as slated above. In our opinion, therefore, the assault on these two persons clearly shows intention of these appellants to cause bodily injury to Jangli, and bodily injury thus intended to be inflicted was sufficient in the ordinary course of nature to cause his death. Thus, Clause Thirdly of Section 300 of the Indian Penal Code would be applicable in this case, and the offence would fall under Section 302 Indian Penal Code in respect of death of Jangli. In respect of injuries to Bhim Singh, the trial Court held these punishable under Section 325 of the Indian Penal Code.
16. The next question then would be regarding the complicity of the appellants. The trial Court held that all these appellants had formed an unlawful assembly punishable under Section 148 of the Indian Penal Code. On that premise, it held the appellants liable under Section 302 r/w Section 149 of the Indian Penal Code in respect of death of Jangli and under Section 325 r/w Section 149 of the Indian Penal Code in respect of injuries to Bhim Singh. On scanning the evidence, we find that as against appellant No. 3 Hari Gian and appellant No. 4 Chattar Singh, the evidence in general terms indicates that they have also taken part in the assault, but no specific act has been attributed to these two appellants. As regards appellant No. 1 Satyawan, appellant No. 2 Parkash and appellant No. 5 Siri Om, the evidence indicates the specific act and blows given by these appellants. In view of that appellant No. 3 Hari Gian and appellant No. 4 Chattar Singh deserve the benefit of doubt in respect of their alleged participation in the assault. The question would be as to whether the remaining appellants can be convicted by application of Section 34 of the Indian Penal Code. The evidence in this case pertains to participation of these appellants in the commission of offence. When the evidence to spell out the common intention and common object is the same, and it remains only a matter of academic nicety as to whether the act committed by the appellants conjointly was in prosecution of the common object or common intention, the appellants can be convicted of the charges by application of joint liability for the acts committed by them in furtherance of their common intention. When a group of persons assaults other two persons to the extent and manner as stated above, the common intention of these appellants can be well inferred and they can be held responsible for such an act.
17. We, therefore, pass the following order:--
The appeal is allowed in respect of appellant No. 3 Har Gian and appellant No. 4 Chattar Singh and we set aside their conviction and sentence and acquit them of the charges levelled against them.
The conviction and sentence of appellant No. 1 Satyawan, appellant No. 2 Parkash alias Siri Parkash and appellant No. 5 Siri Om for the offence under Section 148 of the Indian Penal Code is set aside and they stand acquitted of the charge under Section 148 of the Indian Penal Code; however, their conviction under Section 302 r/w 149 of the Indian Penal Code in respect of death of Jangli is altered into under Section 302 r/w 34 of the Indian Penal Code. With this modification, the sentence in respect of that offence as awarded by trial Court is maintained.
In so far as it pertains to injuries caused to Bhim Singh, the conviction of these appellants No. 1, 2 and 5 is altered from Sections 325 r/w 149 to Sections 325 r/w Section 34 of the Indian Penal Code; and with this modification, the rest of the part of the sentence as awarded by the trial Court in respect of that offence is maintained.
The substantive sentence shall run concurrent.
In respect of the sentence for a term under Sections 325 r/w 34 of the Indian Penal Code, these convicted appellants shall be entitled to a set off for a period during which they were under trial prisoners.
Out of the fine, if realised, an amount of Rs. 6,000/- (Rupees six thousand) shall be paid to the widow of Jangli, and Rs. 1500/- (Rupees one thousand & five hundred) to injured Bhim Singh as compensation. In the event the amount of fine realised is not enough to satisfy both the claims at a time, it shall be paid in proportion in which the amount of fine stands in relation to each other.