Criminal Appeal No. 47-DB of 2006 1 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 47-DB of 2006 Dated of Decision: 16.01.2009 Dharamjit Singh son of Singh Ram, aged 32 years, r/o Village Dhanaura Jattan, Distt. Kurukshetra. ... Appellant Versus State of Haryana. ...Respondent Criminal Appeal No. 52-DB of 2006 Dated of Decision: 16.01.2009 1. Ramesh Kumar son of Karta Ram, resident of Village Dhanora Jattan, District Kurukshetra. 2. Sudesh Kumar son of Karta Ram, resident of Village Dhanora Jattan, District Kurukshetra. ... Appellants Versus The State of Haryana. ....Respondent Criminal Appeal No. 47-DB of 2006 2 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 Criminal Appeal No. 879-DB of 2005 Dated of Decision: 16.01.2009 1. Babu Ram son of Molu Ram aged 51 years, labourer, 2. Shiv Ram son of Molu Ram, aged 45 years, labourer, 3. Raj Kumar so of Babu Ram, aged 28 years, labourer, 4. Rajesh Kumar son of Som Nath, aged 24 years, labourer, 5. Ashok Kumar son of Chandgi Ram, aged 24 years labourer, All residents of Village Dhanora Jattan, District Kurukshetra. ....Appellants Versus The State of Haryana. ...Respondent Criminal Revision No. 437 of 2006 Dated of Decision: 16.01.2009 Subhash Chand son of Sh. Ajit Singh, resident of Dhanora Jattan, District Kurukshetra. ....Petitioner Versus 1. The State of Haryana. 2. Balbir Singh son of Gainda Ram, resident of village Dhanora Jattan, District Kurukshetra. ...Respondents Criminal Appeal No. 47-DB of 2006 3 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vinod Ghai, Advocate, for the appellants, in all the appeals. Mr. H.S. Sran, Additional Advocate General, Haryana, for the respondent – State, in all the appeals. Mr. Vikram Punia, Advocate, for the revision petitioner. Mr. H.S. Sran, Additional Advocate General, Haryana, for respondent No. 1 – State, in the revision petition, and Mr. P.S. Jammu, Advocate, for respondent No. 2, in the revision petition. * * * * SHAM SUNDER, J. This judgement shall dispose of Criminal Appeal No. 47- DB of 2006, filed by Dharamjit, Criminal Appeal No. 52-DB of 2006, filed by Ramesh Kumar and Sudesh Kumar, and Criminal Appeal No. 879-DB of 2005, filed by Babu Ram, Shiv Ram, Raj Kumar, Rajesh Kumar and Ashok Kumar, accused (now appellants), against the judgement of conviction and the order of sentence, dated 11.11.2005, rendered by the Court of Sessions Judge, Kurukshetra, vide which, it convicted and sentenced them, as under, as also Criminal Revision No. 437 of 2006, filed by Subhash Chand, complainant, against the order of acquittal, dated 11.11.2005 of Balbir Singh, accused:- Criminal Appeal No. 47-DB of 2006 4 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 Names of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) Ashok Kumar Dharamjit Rajesh Kumar Ramesh Kumar Sudesh Kumar Raj Kumar Babu Ram Shiv Ram (a) Under Section 148 Indian Penal Code. To undergo rigorous imprisonment for a period of two years each. (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) Ashok Kumar Dharamjit Rajesh Kumar Ramesh Kumar Sudesh Kumar Raj Kumar Babu Ram Shiv Ram (b) Under Section 302 read with Section 149 Indian Penal Code. To undergo life imprisonment each and to pay a fine of Rs. 1000/- each and in default thereof, to further undergo rigorous imprisonment for a period of two months each. Criminal Appeal No. 47-DB of 2006 5 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 Names of the accused (now appellants) Offence for which convicted Sentence awarded (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) Ashok Kumar Dharamjit Rajesh Kumar Ramesh Kumar Sudesh Kumar Raj Kumar Babu Ram Shiv Ram (c) Under section 307 Indian Penal Code. To undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs. 500/- each, and in default thereof, to further undergo rigorous imprisonment for a period of one month each. (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) Ashok Kumar Dharamjit Rajesh Kumar Ramesh Kumar Sudesh Kumar Raj Kumar Babu Ram Shiv Ram (d) Under Section 323 Indian Penal Code. To undergo rigorous imprisonment for a period of six months each. Criminal Appeal No. 47-DB of 2006 6 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 All the substantive sentences, were ordered to run concurrently. 2. Shorn of unnecessary details, the prosecution case proceeded, in the manner, that Subhash Chand, complainant, at the relevant time, was a resident of village Dhanora Jattan, and was running a finance company, in a shop at Ladwa. Sandeep (now deceased) son of the father's sister of the complainant, had been a resident of village Kheri Jattan. He had come to village Dhanora Jattan, to see the complainant and others on 14.10.2002. Ramlila had been going on, in village Dhanora Jattan, at that time, for the last seven/eight days. On 14.10.2002, at about 10.00 PM, Subhash Chand, complainant, and Sandeep, aforesaid (now deceased), went to see Ramlila, at about 10.00 PM, at village Dhanora Jattan. Atinder Kumar son of Mehar Singh, and Vinod Kumar son of Mohinder Singh, residents of village Dhanora Jattan, were already there, watching Ramlila. Subhash Chand and Sandeep, aforesaid, seated themselves, on chairs, near Vinod Kumar and Atinder Kumar. When they were watching Ramlila, Sudesh Kumar and Ramesh Kumar, accused, came there. They claimed that they were sitting on those chairs earlier. They asked Subhash Chand and Sandeep, to get up, from those chairs. Subhash Chand and Sandeep, refused to accede to their request. Upon this, Sudesh Kumar and Ramesh Kumar, accused, started using abusive language, against Subhash Chand and Sandeep. They left that place, declaring that they Criminal Appeal No. 47-DB of 2006 7 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 would see them. At about 11.00 PM, on 14.10.2002, Sudesh Kumar, accused, armed with a sword, Dharamjit, Ramesh Kumar, Raj Kumar and Babu Ram, accused, armed with a lathi each, Ashok Kumar, accused, armed with a gandala, Rajesh Kumar, accused, armed with a danda, Shiv Ram, armed with a hockey stick, and Balbir Singh, accused (since acquitted), empty handed, came there. Balbir Singh, accused (since acquitted), raised an exhortation that Sandeep be taught a lesson, and done to death, for occupying the aforesaid chairs. After raising the exhortation, Balbir Singh, accused (since acquitted), took Sandeep, into his grip. Sudesh Kumar, accused, gave a blow with sword wielded by him on the head of Sandeep. Shiv Ram, accused, gave a blow with hockey stick, on the right side of the head of Sandeep. Raj Kumar, accused, gave a lathi blow, on the right flank of Sandeep. Ashok Kumar, accused, gave a blow with gandala wielded by him, on the left leg of Sandeep. Babu Ram, accused, gave a lathi blow, on the left thigh of Sandeep. Dharamjit, accused, gave a lathi blow, on the little finger of the left hand of Sandeep. Rajesh Kumar, accused, gave a danda blow, on the right leg of Sandeep and Ramesh Kumar, accused, gave a lathi blow on the right leg of Sandeep. In the meanwhile, Atinder Kumar, tried to rescue Sandeep. Shiv Ram, accused, gave a hockey stick blow, on the head of Atinder Kumar. Dharamjit, accused, gave a lathi blow, on the right arm of Atinder Kumar. The complainant Criminal Appeal No. 47-DB of 2006 8 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 alongwith Mehar Singh and Vinod Kumar, rescued Sandeep and Atinder Kumar, from the assailants, with a lot of difficulty. Thereafter, the assailants left the place with their respective weapons. 3. Sohan Lal, a brahmin, resident of village Dhanora Jattan, took Atinder Kumar, to the Community Health Centre, Ladwa, and got him admitted there. Subhash Chand, complainant, took Sandeep, for his treatment to Jindal Hospital, Yamuna-Nagar. The doctor there immediately referred Sandeep to the Post-Graduate Institute of Medical Education and Research, Chandigarh. When he was, being taken to the aforesaid Institute, his condition became very serious, at Industrial Training Institute Chowk, Yamuna Nagar. Accordingly, Subhash Chand, complainant, brought Sandeep, injured to the Community Health Centre, Ladwa. The doctor at the Community Health Centre, Ladwa, declared Sandeep, to be dead. A written intimation PD, was sent by a doctor of the Community Health Centre, Ladwa, to the Police Station, that the dead-body of Sandeep, had been brought to that Centre. Zile Singh, Assistant Sub Inspector, alongwith other Police officials, reached the Community Health Centre, Ladwa. He found the dead-body of Sandeep, lying on a stretcher, in the hall of Community Health Centre, Ladwa. He did not find any eye-witness of the occurrence present there. After sometime, Subhash Chand, complainant, came there, and made a statement about the incident to Criminal Appeal No. 47-DB of 2006 9 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 Zile Singh, Assistant Sub Inspector. The statement PK was completed at about 8.10 AM on 15.10.02. Zile Singh, Assistant Sub Inspector of Police Station Ladwa, appended his, endorsement PK/1 on the same. Thereafter, the said statement was sent to the Police Station, on the basis whereof, the First Information Report PK/2, at 8.25 AM, on 15.10.2002, was registered. Special report was received by the Judicial Magistrate 1st Class, Kurukshetra, at 10.30 AM, on 15.10.2002. 4. Zile Singh, Assistant Sub Inspector, then conducted inquest proceedings, regarding the dead-body of Sandeep. Photographs of the dead-body were got taken, through a photographer. Thereafter, the dead-body of Sandeep, was brought to Lok Narain Jai Parkash Hospital, Kurukshetra, for the purpose of post-mortem examination. Dr. Subhash Grover, a member of the Medical Board, conducted the post-mortem examination, on the dead-body of Sandeep. The other member of the board was Dr. C.R. Khatri. After the post-mortem examination was over, the clothes worn by the deceased, were handed over to Zile Singh, Assistant Sub Inspector, in the shape of a sealed parcel. The parcel of clothes, aforesaid, was taken into possession, vide separate recovery memo. Thereafter, the dead-body was handed over to the family members of the deceased for cremation. 5. Thereafter, Zile Singh, Assistant Sub Inspector, went to the place of occurrence, and inspected the same. He prepared the rough site Criminal Appeal No. 47-DB of 2006 10 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 plan of the place of occurrence. On reaching the Police Station, the sealed parcel of the clothes of the deceased, aforesaid, was handed over to Moharrir Head Constable, by Zile Singh, Assistant Sub Inspector. Zile Singh, Assistant Sub Inspector, then searched the accused. He arrested Shiv Ram, Babu Ram, Ramesh Kumar, Dharamjit, Raj Kumar and Sudesh Kumar, accused, on 18.10.2002. The statement of Atinder Kumar, injured, at Community Health Centre, Ladwa, was recorded, by Zile Singh, Assistant Sub Inspector, on 19.10.2002, after obtaining the opinion of the doctor, regarding his fitness. 6. On 22.10.2002, Rajesh Kumar, accused, was arrested from his house. He was interrogated on 23.10.2002. He disclosed that he was given all the weapons, except the weapon of Ashok Kumar, and he concealed the same in the field of Gurmel Singh, of which, he only knew and could get the same recovered, by pointing out. His disclosure statement was recorded, which was signed by him, and attested by Subhash Chand, complainant, and Ranzor Singh, Head Constable. Thereafter, he took the Police party to the pre-disclosed place and got the weapons recovered. The weapons were converted into parcels, duly sealed with the seal bearing impression 'ZS' and taken into possession vide recovery memo. The rough site plan of the place of recovery was prepared. The statements of witnesses were recorded. 7. On 24.10.2002, Ashok Kumar, accused, was produced Criminal Appeal No. 47-DB of 2006 11 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 before Zile Singh, Assistant Sub Inspector, by one Mohinder Singh (Ashok Kumar's father-in-law), resident of Ramkundi Chowk, Ladwa. Ashok Kumar, accused, was arrested. He was interrogated. He disclosed that he had concealed a gandala, in his house, of which he only knew and could get the same recovered, by pointing out. His disclosure statement was recorded, who signed the same, which was attested by Rajinder Singh and Ranjor Singh, Head Constable. He then led the Police party to the pre-disclosed place and got the gandala recovered, rough sketch whereof, was prepared. The gandala was converted into a parcel, duly sealed, and taken into possession, vide a separate recovery memo. Rough site plan of the place of recovery of gandala was prepared. On reaching the Police Station, parcel of gandala was deposited with Moharrir Head Constable. 8. On 30.11.2002, Zile Singh, Assistant Sub Inspector, recorded the statements of Shashi Pal, Moharrir Head Constable and Gurcharan Singh, Constable. He also recorded the statements of Rishi Pal, draftsman, and Gulshan Kumar, photographer. On 02.12.2002, Zile Singh, Assistant Sub Inspector, moved an application,before the doctor, to obtain his opinion, regarding the injuries, on the person of Atinder Kumar, received by him, in the present occurrence. The doctor opined the injury on the head of Atinder Kumar, to be dangerous to life. Thereafter, the offence, punishable under Section 307 Indian Penal Criminal Appeal No. 47-DB of 2006 12 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 Code, was added, in the case. The statement of Dr. Yogesh Jindal of Yamuna Nagar, was recorded, on 02.12.2002. After the completion of investigation, all the accused, except Balbir Singh, were challaned. 9. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Sections 148, 302, 307 and 323 read with Section 149 of the Indian Penal Code, was framed, against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 10. Thereafter, the statement of Subhash Chand, complainant, was recorded, and an application under Section 319 of the Code of Criminal Procedure, was moved by the prosecution. Ultimately, Balbir Singh, accused, who had not been challaned, was also summoned, to face trial, alongwith the other accused. On his appearance, in the Court, he was supplied the copies of documents, and a fresh charge against all the accused, for the aforesaid offences, was framed, to which they not pleaded guilty and claimed judicial trial. 11. The prosecution, in support of its case, examined Atinder Kumar, eye-witness, injured (PW1), Dr. Sukhraj Singh, Medical Officer, Community Health Centre (PW2), who medico-legally examined Atinder Kumar, on 15.10.2002, at 1.20 A.M., Gurcharan Criminal Appeal No. 47-DB of 2006 13 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 Singh, Constable (PW3), a formal witness, who tendered his affidavit, Shashi Pal (PW4), a formal witness, who tendered his affidavit, regarding the recording of formal First Information Report, Mohan Lal, Constable (PW5), through whom, the special reports were sent to the Illaqa Magistrate and other Police officials, Rishi Pal, Constable (PW6), who prepared the scaled site plan of the place of occurrence, on 30.10.2002, on the pointing out of the said place, by Subhash Chand, complainant, Gulshan Kumar (PW7), a photographer, who took the photographs of the dead-body of Sandeep, in Community Health Centre, Ladwa, Ami Lal, Head Constable (PW8), who took the dead- body of Sandeep, to Lok Narain Jai Parkash Hospital, Kurukshetra, and got post-mortem examination conducted, on the same, as also, handed over the sealed parcel given to him, by the doctor, to Zile Singh, Assistant Sub Inspector, Rajinder Singh (PW9), a witness, in whose presence, interrogation of accused Ashok Kumar, was conducted, resulting into making of disclosure statement, and ultimately recovery of gandala, Dr. Yogesh Jindal (PW10), to whom, Subhash Chand, complainant, took Sandeep, on the night intervening 14/15.10.2002, Dr. Subhash Grover (PW11), who conducted the post-mortem examination, on the dead-body of Sandeep, alongwith Dr. C.R. Kharti, Subhash Chand (PW12), the complainant-cum-eyewitness, to the occurrence, Zile Singh, Assistant Sub Inspector (PW13), the Criminal Appeal No. 47-DB of 2006 14 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 Investigating Officer of the case. 12. The Public Prosecutor for the State, gave up, Dr. C.R. Khatri, Ranjor Singh, Head Constable, Chander Pal Singh, Sub Inspector, Surjan Singh and Vinod Kumar, prosecution witnesses, as unnecessary. After tendering the reports of the Forensic Science Laboratory, in evidence, the Public Prosecutor for the State, closed the prosecution evidence. 13. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Ashok Kumar, accused, stated that he was playing the role of Laxman, in Ramlila, on the relevant day and was on the stage, in the covered pandal, meant for the use of artists of Ramlila. He further stated that he heard commotion in which many other persons were involved. It was further stated by him that he was unable to see, as to who had caused injury, to whom. It was further stated by him that on account of division of people, in the village, on caste basis, in two factions, one consisting of Harijans or Valmikis and the other dominated by Jats, he was falsely involved, in this case. It was further stated by him that the deceased as well as Atinder Kumar, as also the other witnesses, belong to Jat community, while he and other accused, either belong to Harijan or Valmiki Criminal Appeal No. 47-DB of 2006 15 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 community. He further stated that soon after the occurrence, he came to know, from the people, who witnessed the same, that the trouble was started by the complainant party, and thereafter, the members thereof, were given beatings, by the uncontrollable mob, which was watching Ramlila. 14. Rajesh Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, he was playing the role of Lord Rama, in Ramlila, on the relevant day. The remaining pleas taken up, by him, in his statement, under Section 313 of the Code of Criminal Procedure, were the same, as were taken up by Ashok Kumar, accused. 15. Raj Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that he was playing the role of Ravana, in Ramlila, on the relevant day, and was on the stage, in the covered pandal, when the occurrence took place. His other pleas were also similar and identical to the pleas of Ashok Kumar, accused. 16. Dharamjit, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that Ballu, Ex-Sarpanch of the village was inimically disposed towards him. He further stated that Atinder Kumar and Subhash Chand, complainant, are relatives of said Ballu. He further stated that, on account of this reason, he was falsely involved, in this case. Criminal Appeal No. 47-DB of 2006 16 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 17. Ramesh Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that he was falsely implicated, in this case, due to factionalism in the village. 18. Sudesh Kumar, accused, adopted the stand, taken up, by Ramesh Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure. 19. Babu Ram, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, he and his brother Shiv Ram, were placed, under suspension, on 16.10.2002 and 15.10.2002, respectively. It was further stated by him that he and his brother Shiv Ram, were arrested, by the Police, on 15.10.2002. It was further stated by him that the witnesses belong to Jat community, with whom, he and his father Molu Ram, and his brother Rattan Lal, had long standing enmity. It was further stated by him, that his father had filed a number of complaints, regarding the illegal possession of the village land, by the complainant party. It was further stated by him, that Rattan Lal, his brother also lodged reports, against the Jat community, including the prosecution witnesses, as also the Sarpanch namely Sarla Devi, at the relevant time. It was further stated by him, that he and his brother Shiv Ram, being government servants, with a view to cause harm, to their career, the members of the Jat community falsely involved them in this case. In the written statement D1, tendered by him, in order to Criminal Appeal No. 47-DB of 2006 17 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 supplement his stand, taken up, in the statement, under Section 313 of the Code of Criminal Procedure, he furnished the complete details of his plea. 20. The defence taken up, by Shiv Ram, in his statement under Section 313 of the Code of Criminal Procedure was similar and identical, to the one, taken up by Babu Ram, in his statement under Section 313 of the Code of Criminal Procedure. 21. Balbir Singh, accused (since acquitted), in his statement,under Section 313 of the Code of Criminal Procedure, stated that his brother Prem Chand, was working in government press, Panchkula, who died on 18.09.2002, in a car accident, at Sector 26, Chandigarh. According to him, the First Information Report, about that accident was got lodged, in Police Station, Sector 26, Chandigarh. It was further stated by him, that he and the members of his family were under mental and physical shock, on account of that reason. It was further submitted by him that, therefore, he did not go to watch Ramlila, on the day of occurrence. It was further stated by him, that he had moved an application to the Director General of Police, Haryana, alleging that he was innocent and was not at all present, at the scene of occurrence. Enquiry, on his application, was entrusted to Hukam Singh, Deputy Superintendent of Police, Panchkula, who had gone to the place of occurrence, on 18.11.2002, and had enquired into and investigated Criminal Appeal No. 47-DB of 2006 18 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006 the allegations of the case, from him, as also from 50 persons of the village. All the 50 persons had stated before him, that on the day of occurrence, he was not present, in the Ramlila. Hukam Singh, Deputy Superintendent of Police, submitted his report, on 18.11.2002. It was further stated by him, that he was falsely involved, in this case, due to party faction in the village. 22. In defence, the accused examined Sohan Lal (DW1), Prem Singh, District Development and Panchayat Officer, Kurukshetra (DW2), Rattan Lal (DW3), brother of Babu Ram and Shiv Ram, accused, Hukam Singh, Deputy Superintendent of Police (DW4) and Dr. H.C. Goyal (DW5). Suspension order of Shiv Ram, exhibit D5, and photocopy of the suspension order of Babu Ram, accused, mark 'A', were tendered into defence evidence. Thereafter, the accused, closed their defence evidence. 23. After hearing the Counsel