Crl. Appeal No.636-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision : August 28,2006 Ram Kishan and others ....Appellants Versus The State of Haryana ....Respondent Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal Present : Ms. Baljeet Mann and Mr. Vinod Ghai, Advocates, for convicted appellants and acquitted respondents. Mr. Sunil Katyal, Deputy Advocate General, Haryana. None for Tejbir Singh petitioner in the Crl. Revision No.632 of 2002. Virender Singh, J. Vide this judgment judgment we are disposing of Criminal Appeal No.636-DB of 2001 titled “Ram Kishan and others vs. State of Haryana”, Criminal Appeal No.674-DBA of 2002 titled “State of Haryana vs. Meshri and others” and Criminal Revision Crl. Appeal No.636-DB of 2001 -2- No.632 of 2002 titled “Tejbir Singh vs. Meshri and others”. Vide impugned judgment of learned Additional Sessions Judge, Panipat dated 31st October, 2001, Ram Kishan son of Nihala, his real brother Hawa Singh and Suresh son of Ram Kishan (Appellants in Crl. Appeal No.636-DB) have suffered conviction for the offences punishable under Sections 302, 323 and 325 read with Section 149 IPC. They have also been held liable under Section 148 IPC and sentenced as under:- Under Section 302 read with S. 149 of Indian Penal Code: All the three convicts are sentenced to undergo life imprisonment and to pay a fine of Rs.2000/- each and in default of payment of fine, the defaulting convict shall further undergo rigorous imprisonment for a period of three months. Under Section 325 read with Section 149 of Indian Penal Code: All the three convicts are sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- and in default of payment of fine, the defaulting convicts shall further undergo R.I. For one month. Offence under Section 323 read with S. 149 Indian Penal Code: All the three convicts are sentenced to undergo rigorous imprisonment for three months. Offence under S. 148 of Indian Penal Code: All the three convicts are sentenced to undergo rigorous Crl. Appeal No.636-DB of 2001 -3- imprisonment for a period of six months. All the sentences have been ordered to run concurrently. Aggrieved by the judgment of conviction and sentence, they have preferred Criminal Appeal No.636-DB of 2001. Since Meshri, Roshni and Sheela have been acquitted by the trial Court, State of Haryana has preferred Criminal Appeal No.674-DBA). The said appeal stands admitted vide order dated September 12, 2002. Tejbir Singh (complainant/FIR lodger) has also filed Criminal Revision (632 of 2002) against the acquittal of Meshri and two others and has also claimed compensation under Section 357 Cr.P.C. which also stands admitted vide order dated July 23, 2002 and was ordered to be heard along with Criminal Appeal No.636-DB of 2002. It is pertinent to mention here that Vijender Singh @ Billu son of Ram Kishan (appellant) was also challaned. However, he was held to be juvenile and, therefore, his case was segregated and sent to the Juvenile Court at Ambala. As indicated in the charge sheet, all the six accused were charged under Section 148 IPC. Ram Kishan and Suresh appellants have been charged substantively for the offence punishable under Section 302 IPC whereas Hawa Singh appellant and Roshni, Meshri Crl. Appeal No.636-DB of 2001 -4- and Sheela (since acquitted) were charged under Section 302 read with Section 149 IPC. Hawa Singh, Suresh, Ram Kishan, Roshni and Meshri were charged under Section 323 IPC and 325 IPC substantively. Roshni, Meshri and Sheela were also charged under Section 323 read with Section 149 IPC. Meshri was, however, charged substantively for Section 323 IPC also. Roshni was also charged under Section 325/323 read with Section 149 IPC alongwith Vijender Singh (sent to Juvenile Court). Deceased in this case is Dharma @ Dharam Singh who was real brother of Ram Kishan and Hawa Singh appellants and uncle of Suresh appellant. The occurrence dates back to 26th July, 1992 at about 8/9 A.M. near the field of Ram Kishan. In this occurrence, both the sides have received injuries. The complainant side went to Civil Hospital Safidon for treatment whereas the injured from the appellants side came to Panipat Hospital. Although the distance from the place of occurrence to Civil Hospital, Safidon and to General Hospital, Panipat has not come on the judicial file but learned counsel for both the sides state that it is almost the same with a difference of 5/7 kilometers. Statement Ex.PS of Tejbir Singh (PW5) son of Dharma, since deceased, was recorded in Civil Hospital, Safidon on the date of occurrence itself i.e. 26th July, 1992 at 2.30 P.M. by Head Constable Ram Kumar PW9 of Police Station Urlana. On the endorsement of Crl. Appeal No.636-DB of 2001 -5- aforesaid Head Constable Ram Kumar Ex.PS/1, formal FIR Ex.PS/2 was registered in Police Station Urlana (District Panipat) at 3.10 P.M. The case was initially registered under Sections 148/149/324/307 IPC. On the same day Dharma died at about 2.45 P.M. as is indicated in intimation Ex.PA/4 sent by Dr. R.K. Khandpur PW1 Medical Officer of Civil Hospital, Safidon. Section 302 IPC was consequently added. The special report reached Judicial Magistrate Ist Class, Panipat at 10.00 P.M. on the same day. The case of the complainant as emerging from the statement of Tejbir Singh PW5 is that his father Dharma, since deceased, had two brothers, namely, Ram Kishan and Hawa Singh (appellants herein). During his life time, the grand father of Tejbir Singh had partitioned the land amongst his three sons viz Dharma, since deceased, Ram Kishan and Hawa Singh. However, Ram Kishan and Hawa Singh were illegally occupying some land of his father. In order to resolve the dispute, Panchayats were convened many a time but to no effect. It is then alleged that on 25.7.1992 at about 8/9 A.M. when he (Tejbir), his wife Krishna and brother Ami Singh were going in a Buggi to fetch grass from the fields known as Dummoa Wala, appellant Ram Kishan, his sons Suresh (appellant) and Vijender (Juvenile) had stopped their Buggi with the help of a tractor and threatened them with injuries in case they move forward to bring grass from the fields. It is then the case of the complainant that he and his Crl. Appeal No.636-DB of 2001 -6- companions went back and narrated the entire incident to their father Dharma who went to one Tara Master and told him the entire episode. Tara Master had assured Dharma that he would reprimand Ram Kishan. It is then the case of the prosecution that on 26.7.92 at about 8/9 A.M., Tejbir, his brother Ranbir, Ami Singh, his wife Krishna and father Dharma were going in the Buggi to bring grass from the same field and when they reached near the field of Ram Kishan, all the accused persons armed with Farsa, Gandasi and Lathi came out of their field. Ram Kishan appellant raised Lalkara that nobody should be spared and thereafter Ram Kishan and Suresh gave one Lathi blow each on the head of Dharma. Vijender Singh accused gave Lathi blow hitting left eye of Dharma as a result of which Dharma had fallen down from the Buggi. When Tejbir and his brother Ranbir had bent down to pick up Dharma, then Roshni accused (since acquitted) gave a Gandasi blow hitting complainant on his left hip. Hawa Singh appellant, who was armed with a Gandasi, gave the blow from the blunt side to Ami Singh. Meshri accused (since acquitted) was also having a Gandasi and she gave one blow from its blunt side to Ranbir and thereafter all the seven accused persons taking for granted the complainant and his companions to be dead, left the place. Dharma was taken to Civil Hospital, Safidon where he was declared to be dead. After recording of the formal FIR, investigation of this Crl. Appeal No.636-DB of 2001 -7- case was initially conducted by ASI Mohinder Lal PW10, who after receipt of the ruqa Ex.PS from Head Constable Ram Kumar, got the formal FIR recorded. Thereafter when he was present at Civil Hospital, Safidon, aforesaid Head Constable Ram Kumar met him outside the hospital and apprised him of the death of Dharma. Thereafter inquest proceedings were conducted by him and the dead- body was sent for postmortem along with inquest report Ex.PG/5. SI/SHO Baljit Singh of Police Station Urlana (PW11) reached the spot and recorded the statements of injured accused who were admitted in Civil Hospital, Panipat. He thereafter came to Panipat where he was told that postmortem was to be conducted in Civil Hospital, Jind. Therefore, the dead-body of Dharma was accordingly sent to Civil Hospital, Jind. ASI Mohinder Lal then approached the concerned doctor for recording the statement of the accused/injured where he was informed that Ram Kishan (appellant) and Roshni (since acquitted) were referred to Medical College and Hospital, Rohtak and the other three injured from the side of the appellant had been discharged after necessary medical treatment. ASI Mohinder Lal then recorded the statements of the injured from the side of the complainant. Investigation of the present case was then taken over by SI Baljit Singh who visited the spot, prepared the rough site plan Ex.PV on the pointing of Krishna wife of Tejbir Singh, took into Crl. Appeal No.636-DB of 2001 -8- possession the clothes of the deceased after the postmortem examination and thereafter recorded the statements of certain police officials. On 2nd August, 1992, when he was in village Seenkh, Vijender, Hawa Singh, Meshri and Suresh were produced by Sarpanch Karamvir. They were formally arrested. Hawa Singh, Vijender, Suresh and Meshri were interrogated and during interrogation they made their separate disclosure statements pursuant to which Hawa Singh got Gandasi Ex.P4, Meshri Gandasi Ex.P5, Vijender Lathi Ex.P6 and Suresh lathi Ex.P7 recovered. All the weapons of offence were then taken into possession vide separate memos. On 5.8.1992 appellant Ram Kishan was formally arrested and he produced a Lathi which was taken into possession. On 11.8.1992 Sheela and Roshni were produced by Rambhaj. They were also formally arrested. Pursuant to the disclosure statement of Roshni, she got a Gandasi Ex.P8 recovered which was taken into possession. However, no recovery is effected from Sheela. On the completion of the investigation, all the accused were challaned and consequently charged for offences as depicted above. Since both the sides are injured in this case, we feel it appropriate to describe the injuries of both the sides and the same are thus: Injured from the side of complainant: Crl. Appeal No.636-DB of 2001 -9- Five persons have received injuries from the side of the complainant including Dharma, since deceased, who was initially examined by Dr. R.K. Khandpur, Medical Officer of Civil Hospital, Safidon. He noticed the following injuries on the person of Dharma:- 1. A lacerated wound 4 cm x 1 cm, scalp deep, present on the left side of parietal region. Fresh blood was oozing out of the wound. Hair were metted with clotted blood. X-ray skull was advised. 2. Upper eye lid of left eye was diffusedly swollen and eye could not be opened and examined. 3. First left tooth upper jaw was missing. Socket was full of blood clot and blood was present in the socket and in the mouth cavity and respiration was gasping type. Upper lip in the central part of upper lip was swollen slightly. All the injuries were caused by blunt weapon. Injuries on the person of Tejbir son of Dharma (PW1) are as under:- 1. There was a lacerated wound 4.5 cm x 1/2 cm size irregular shape, skin deep present on the left parietal region. Fresh blood was oozing out of the wound. Hair were metted with clotted blood. X-ray of the skull, AP and lateral view was advised. Crl. Appeal No.636-DB of 2001 -10- 2. There was a lacerated wound 2.5 cm x 1/2 cm size irregular shape present on left parietal region. It was scalp deep. Fresh blood was oozing out of the wound. Hair were metted with clotted blood. X-ray of the skull, AP and lateral view was advised. 3. There was a diffused swelling of left elbow joint, posterior, part of lateral and medial part. Tenderness was present. Movements at joint were restricted. X-ray of the left elbow joint was advised. 4. There was an incised wound 2.5 cm x 1 cm, skin deep present on left iliac crest anteriorly on left side. Fresh blood was oozing out of the wound. Clotted blood around the wound was present. 5. There was an abrasion of 2 cm x 1/2 cm size irregular shape present on posterior aspect of middle of left fore- arm. Crest of clotted blood was present over it. 6. There was two reddish contusions of 4 cm x 2 cm and 2cm x 2cm size irregular shape present on left shoulder joint. 7. There was a reddish contusion of 4 cm x 2½ cm size irregular shape on lateral aspect of middle of left upper arm. 8. There was an abrasion of 5 cm x 1 cm size verticle Crl. Appeal No.636-DB of 2001 -11- placed on posterior aspect of upper half of right fore-arm crest of clotted blood was present over it. 9. There was an abrasion of 1½ cm x 1 cm irregular shape on anterio medial aspect of right fore-arm crest of blood was present over it. 10. There were two abrasions of 1 cm x 1/2 cm size and 3 cm x 1 cm size irregular shape present on anterior aspect of right thigh in the middle part. All the injuries were kept under observation and as per the opinion of the doctor the weapon used for injury No.4 was sharp edged whereas for rest of the injuries it was blunt. Ultimately on radiological examination of injury No.3 it which was a diffused swelling on left elbow joint, it was declared grievous. On the person of Ami Singh (PW6) son of Dharma, the following injuries were noticed:- 1. A lacerated wound 3 c m x 1 cm size scalp deep present in the middle of head. Fresh blood was oozing out of the wound. Hair matted with blood. Tenderness was present. X-ray skull was advised. 2. There was a lacerated wound 1/2 cm x 1/2 cm size irregular shape present on dorsal aspect of base of middle finger of left hand. It was skin deep. Fresh blood was oozing out of it. Clotted blood around it was present. Crl. Appeal No.636-DB of 2001 -12- 3. There was tenderness on anterior lateral aspect of middle of left thigh. No swelling, no external injury was present. 4. A reddish contusion of 6 cm x 2 cm size obliquely placed was present on upper part of back on right side. All the injuries were caused by blunt weapon. Ranbir another son of Dharma (not examined) had received the following injuries:- 1. The thumb of left hand was swollen all around at distal IP joint. It was tender, small abrasion of 1/2 cm x 1/3 cm size irregular shape was present on the palmer aspect near the nail at tip of thumb. Crest of blood was present over it. Movements were limited somewhat at IP joint. 2. There was an abrasion of 1/2 cm x 1/4 cm irregular shape on dorsal aspect of distal 1/2 of first finger of left hand. Crest of clotted blood was present over it. 3. There was a diffused swelling of 4 cm x 2½ cm size irregular shape present on the right side of parietal region. It was tender. X-ray skull AP lateral view was advised. 4. He was complaining of pain on anterio lateral middle part of right thigh. No swelling, slight tender of area was present. Crl. Appeal No.636-DB of 2001 -13- 5. There was a diffused swelling of 3 cm x 2 cm size irregular shape present on lateral aspect of lower half of right fore-arm. It was slightly tender. All the injuries were declared simple in nature caused by a blunt weapon. Krishna wife of Tejbir (PW) had received the following injuries:- 1. There was diffused swelling of 3 cm x 3 cm size irregular shape on left parietal region. It was tender. X- ray skull was advised, AP and lateral view. 2. There was diffused swelling of 2 cm x 2 cm size irregular shape present on occipital region. It was tender. X-Ray skull AP lateral view was advised. 3. There was a reddish contusion of 3 cm x 2 cm size irregular shape present on the right shoulder joint. It was tender. Movements at shoulder joint were somewhat limited. 4. There was a diffused swelling of 1 cm x 1 cm size irregular shape present on dorsal and lateral aspect of base of thumb of left hand. Tenderness was present. 5. A superficial abrasion of 4 cm x 1cm size irregular shape present on posterior aspect of middle part of right fore- arm. Crl. Appeal No.636-DB of 2001 -14- Her injuries were also declared simple caused by a blunt weapon. Injuries from the side of the appellants: Six persons from the side of the accused-appellants have received injuries in this occurrence and they were examined by PW4 Dr. V.P. Gupta, Medical Officer, General Hospital, Panipat. He noticed the following injuries on the person of Roshni (since acquitted):- 1. There was a stab wound 1cm x 0.5 cm over the right side of abdomen. It was transversely placed. It was 12 cm on the right side from the umblicus. Margins of the wounds were lacerated. Clotted blood was present. Depth and direction was to be given by the Surgeon. X-ray was advised. 2. A lacerated wound 0.75 cm x 0.5 cm longitudely placed on the posterior aspect of right fore-arm. It is 4 cm below the olecronon process. It was bone deep. Clotted blood was present. X-ray was advised. 3. A lacerated wound 4 cm x 0.5 cm over the skull. It was obliquely placed, bone deep. The lower end of the wound was 7 cm above the left medial end of the eye- brow. Then it went upwards the right side of skull. Clotted blood was present. X-Ray was advised. Crl. Appeal No.636-DB of 2001 -15- 4. A longitudinal bruise reddish in colour 12 cm x 0.5 cm over the posterior aspect of left calf. There was diffused swelling. It was painful and tender. Injury No.1 was declared dangerous to life and the said injury was a stab wound caused by a blunt weapon. Injury No.2, which was a lacerated wound on the skull, was ultimately declared grievous. Medical examination of Ram Kishan appellant shows the following injuries on his person:- i) There was a punctured wound 0.25 cm x 0.25 cm over the left side of chest, 10 cm below the left sterno clavicular joint. Margins were lacerated. Clotted blood was present. Depth and direction was to be given by the Surgeon. There was another punctured wound 0.25 x 0.25 cm with lacerated margins, 2.5 cm below and 1 cm on the left side of the above punctured wound. Clotted blood was present. The distance between two punctured wound was 2.5 cm. Depth and direction of the wound was to be given by the surgeon. ii) There was a punctured wound with lacerated margins 0.25 cm x 0.25 cm on the right side of chest, 7 cm below and 1 cm on the right lateral side from the sternal notch, clotted blood was present. Depth and direction of the Crl. Appeal No.636-DB of 2001 -16- wound was to be given by the Surgeon. iii) A punctured wound 0.25 cm x 0.25 cm on the right side of chest, 3 cm right lateral and 2 cm up from injury No.2. The distance between injuries 2 and 3 was 3.5 cm. Depth and direction was to be given by the surgeon. iv) A lacerated wound 1 cm x 0.25 cm transversely placed over the left side of the abdomen near the costal margins. It was 2.5 cm from the mid line. It was skin deep. Clotted blood was present. v) There was diffused swelling of left thumb . It was painful and tender – X-Ray was advised. vi) There were two parallel abrasions, 7 cm x 0.2 cm over the antro lateral anterior aspect of left arm. It started from the deltoid tuberosity and went downward and forward. The normal distance between the two was 1 cm. vii) A reddish bruise 10 cm x 3 cm over the antro-lateral aspect of right arm. It was obliquely placed. Lower end was 8cm above the elbow. Then it went upwards and medially. It was painful and tender. viii) A reddish bruise 7 cm x 2.5 cm over the right lateral and antrolateral part of chest. Obliquely placed. Then it went downwards and backward. From the posterior end Crl. Appeal No.636-DB of 2001 -17- of the wound there were three extensions- 5 cm x 0.1 cm, 6 cm x 0.2 cm, 5 cm x 0.5 cm. It was painful and tender. Out of eight injuries, three injuries (injury Nos.1 to 3 respectively were caused by a blunt pointed weapon whereas for rest of the injuries blunt weapons were used. Hawa Singh appellant has received the following injuries:- 1. A lacerated wound 3 cm x 0.5 cm over the left side of skull. It was longitudinally placed. It was bone deep. The anterior end of the wound was 19 cm up and 1 cm on the left lateral side from the root of nose, Clotted blood was present. X-ray was advised. 2. There was diffused painful swelling over the posterior aspect of left wrist. X-Ray was advised. Suresh appellant had received the following injuries by blunt weapon:- 1. A lacerated wound 1 cm x 0.5 cm longitudinally placed over the left side of chest, 2.5 cm above the nipple. Clotted blood was present. Depth and direction was to be given by the surgeon. 2. A lacerated wound 2 cm x 1 cm longitudinally placed over the left side of chest. 2.5 cm medial to injury no.1. Depth and direction was to be given by the surgeon. Clotted blood was present. Crl. Appeal No.636-DB of 2001 -18- 3. A lacerated wound 1.5 cm x 0.2 cm over the dorsum of terminal phalanx of left ring finger. It started from the DIP joint and went forward and laterally. It was subcutaneous tissue deep. Clotted blood was present. X-ray was advised. 4. A lacerated wound 1.5 cm x 0.2 cm over the dorum of middle of left ring finger, 1.5 cm proximal to injury No.3, it was parallel to injury no.3. Subcutaneous tissue deep. Clotted blood was present. X-ray was advised. X-Ray of chest was also advised. Vijender (sent to Juvenile Court) has received following two injuries by blunt weapon:- 1. There was an irregular abrasion 8 cm x 1 cm over the posterior aspect of left fore-arm along the subcutaneous boarder of ulna. It was 4 cm below the olecranon process. Clotted blood was present. 2. A lacerated wound 1.5 cm x 0.75 cm over the left side of occipital protuberance, bone deep. Clotted blood was present. X-ray was advised. Meshri (since acquitted) has also received the following two injuries:- 1. An incised wound 3.5 cm x 0.5 cm over the left arm on the medial side. It was skin deep. Clotted blood was Crl. Appeal No.636-DB of 2001 -19- present. The upper end of the wound was 5 cm up from the elbow and then it went downwards, forwards and medially. 2. A reddish bruise 4 cm x 3 cm over the top of left shoulder. It was painful and tender. X-ray was advised. The injury No.1 was caused with a sharp weapon whereas injury no.2 was caused by a blunt weapon. Autopsy on the dead body of Dharma was conducted by Dr. Dhan Kumar, Medical Officer, Civil Hospital, Safidon on 27.7.1992 at 8.30 A.M. who noticed the following injuries on