IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.2051-SB of 2002 (O&M) Date of decision: 7th May, 2010 Chando and others … Appellants Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. S.K. Garg Narwana, Advocate with Mr. Naveen Gupta, Advocate for the applicant-appellants. Mr. Manish Deswal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Criminal Misc. No.23717 of 2010 Application is allowed and Jamabandi (Annexure A-1) is taken on record. Criminal Appeal No.2051-SB of 2002 Present appeal has been filed by Chando, Kokal alias Gokal and Ram Kishan. Ram Kishan and Chando were son and daughter-in-law of Gokal. The appellants were named as accused in case FIR No.153 dated 31.07.1999 registered at Police Station Bawal under Sections. 323/324/325/506/307/34 IPC. The Court of Additional Sessions Judge, Rewari, vide its judgment dated 14th December, 2002, held the appellant Ram Kishan guilty of an offence punishable under Sections 307, 325, 323 Criminal Appeal No.2051-SB of 2002 (O&M) IPC and Section 324 read with Section 34 IPC. Appellant Kokal alias Gokal was held guilty of an offence punishable under Section 324 IPC substantively whereas under Sections 307, 323 and 325 IPC he was convicted with an aid of Section 34 IPC. Appellant Chando was found guilty for offence punishable under Sections 323, 324, 325, 307 read with Section 34 IPC. After holding all the appellants guilty, the trial Court vide a separate order dated 16th December, 2002 sentenced them as under: S. No. Name u/s Sentence Fine In default 1. Ram Kishan (convict) 307 IPC 7 years R.I. 1000/- Six months 325 IPC 5 years R.I. 1000/- Four months 324 IPC r.w. 34 IPC 2 years R.I. 500/- Three months 323 IPC 6 months R.I. 500/- One month 2. Kokal (convict) 307 IPC r.w. 34 IPC 3 years R.I. 1000/- Six months 325 IPC r.w. 34 IPC 3 years R.I. 1000/- Six months 324 IPC 3 years R.I. 1000/- Six months 323 IPC r.w. 34 IPC 6 months R.I. 3. Chando (convict) 307 IPC r.w. 34 IPC 2 years R.I. 1000/- Three months 325 IPC r.w. 34 IPC 2 years R.I. 500/- Three months 324 IPC r.w. 34 IPC 1 year R.I. 500/- Two months 323 IPC r.w. 34 IPC 3 months All the substantive sentences on all the three appellants were ordered to run concurrently. The FIR, in the present case, was registered on the basis of a statement Ex.PF made by Khiali Ram to HC Munshi Ram at Civil Hospital, Bawal, in which he stated that he was a resident of village Bidawas. The family of his father consisted of three brothers and a sister. The eldest 2 Criminal Appeal No.2051-SB of 2002 (O&M) brother was Channo followed by Bhagmal (brother), Surjo (sister) and the youngest brother was Gokal. Channo was not married. He had given his share of land to Gokal. Bhagmal had purchased the share of Surjo, due to which Gokal had filed a case, which the complainant party had won upto the Sessions Court. The complainant had sown Guwar Bajra in the land. On 31st July, 1999, the complainant along with his father Bhagmal, was present in the fields at about 10.00 a.m., when Gokal, uncle of the complainant, along with his son Ram Kishan and daughter-in-law Chando came on a tractor and started ploughing the land of the complainant. Ram Kishan and Gokal were armed with Farsa whereas Chando was armed with a Lathi. The father of the complainant restrained them. At that moment, Ram Kishan started following father of the complainant on tractor, who was running in front of it. Ram Kishan encircled Bhagmal in the field of Guwar and gave one Farsa blow on his left foot. Gokal gave one Farsa blow in his head and Chando gave one Lathi blow on the right foot of Bhagmal. Ram Kishan gave another Farsa like Lathi blow on his right shoulder. Chando gave another Lathi blow on left armpit and Ram Kishan gave thrust-wise blow in the chest of Bhagmal. Bhagmal, father of the complainant, due to receipt of injuries fell down at the spot. The complainant raised noise of ‘Mar Diya Mar Diya’, which attracted Shadi Ram son of Harphool and Karan Singh son of Rati Ram, who came from their fields. On seeing the witnesses coming, the accused ran away on their tractor. The complainant arranged a tractor and brought his father to the Civil Hospital, Bawal. On the basis of the above said statement Ex.PF, formal FIR Ex.PF/2 was registered under Sections 323/324/34 IPC and later offences punishable under Sections 325 and 307 IPC were also added. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted against the accused appellants. The 3 Criminal Appeal No.2051-SB of 2002 (O&M) case along with the appellants was committed to the Court of Sessions, Rewari and the trial was entrusted to Additional Sessions Judge, Rewari, who on 27th April, 2000 charged the appellants for offences punishable under Section 323/34, 324/34, 325/34, 307/34 and 506/34 IPC. The charge stated that on 31st July, 1999 at about 10.00 a.m. in the area of village Bidawas, all the appellants in furtherance of their common intention, had caused voluntarily simple hurts, grievous hurts and injuries falling within the ambit of Section 307 IPC. The accused pleaded not guilty and claimed trial. Prosecution commenced its evidence. SI Lal Singh appeared as PW-1. He had prepared the report under Section 173 Cr.P.C. Constable Jagphool Singh PW-2 was joined in the investigation by HC Munshi Ram. He stated that at the time of arrest of Ram Kishan, one Farsa Ex.P1 was taken into possession vide memo Ex.PA. Dr. Ashok Kumar PW-3 had medico legally examined Bhagmal and found following injuries on his person: 1. Incised wound of size 14x6 cm, half curved shape clear-cut margin in sliced pattern, bony deep underneath muscles wear cut and perfuse bleeding was present from posterial side of left leg in the middle. Injury was advised for X-ray and orthopodicines treatment. 2. Incised wound of size 3.5 x .5 cm. Clear-cut margin, muscles deep, present over middle of scalp. 3. Complain of pain over right shoulder joint. Pain on movement present. Injury was advised for X-ray. 4 Criminal Appeal No.2051-SB of 2002 (O&M) 4. Marked swelling present over middle of left forearm. Tenderness was present. Injury was advised for X-ray. 5. Marked swelling present over middle of right leg. Tenderness was present. Injury was advised X-ray. 6. Complaint of pain all over body. Tenderness was present on both side of chest. Injury was advised for X- ray. Injuries No.1 and 2 were caused by sharp edged weapon whereas others by blunt weapons. On 5th August, 1999, Bhagmal was radiologically examined by this witness. He found a fracture of left fibula in the middle and another fracture of 9th and 10th ribs in mid scapular line on left side. However, he had also found old fracture with malunion and calus formation on right leg and on the left forearm. Injury No.1 was declared as dangerous to life, because all structures beneath skin i.e., muscle, neuron- vescular bundles as well as bones were cut due to that injury and profuse bleeding lead to hemorrhagic shock, which was dangerous to life. Injury No.6 was also declared grievous. In cross examination, this witness stated that injuries No.4 and 5 on the person of Bhagmal were more than three months old on the date of examination. He further admitted that there was no serious injury on the vital parts of the body. Khiali Ram complainant appeared as PW-4 and reiterated as to what was stated in his statement Ex.PF, on the basis of which formal FIR Ex.PF/2 was registered. In cross examination, he stated that his grandfather Gulab had three sons, namely Chhano, Bhagmal and Kokal. Ram Kishan was son of Kokal and was his cousin. He further admitted that in village Bidawas, 125 kanals and 14 marlas of land was jointly owned by Chhano, Bhagmal and Kokal. No partition of the land had taken place and in the revenue record, possession of the land was recorded jointly in the 5 Criminal Appeal No.2051-SB of 2002 (O&M) names of all the four brothers. He further admitted that on 17th January, 1995, Chhano had suffered a consent decree in favour of Ram Kishan and Rambir in respect of the land situated at village Bidawas. His father had filed an application in the Civil Court for pleading him as a party to the suit. He further admitted that Kokal etc. brought a civil suit for injunction against them in the Court of Sh.A.K.S. Panwar, the then Civil Judge (Sr. Division), Rewari. He further admitted that on 25th March, 1998, Kokal etc. had got the injunction order. Aggrieved against the same, they had filed an appeal, which was accepted by the Court of Additional District Judge, Rewari, against which Kokal had filed a revision petition in the High Court, which was pending. This witness further admitted that earlier, he along with Chhano, Bhagmal, Duli Chand, Ran Singh and Tara Chand, was convicted for offences punishable under Sections 323/325 IPC. He further admitted that Kokal, Rambir, Ram Kishan and Chhano were in possession of the land situated at Bidawas. They had sown Guwar crop in Killa No.24, where the occurrence had taken place. He further admitted that Kokal accused had moved various applications before the police against them on 23rd October, 1997; 25th March, 1998; 10th March, 1998 and on 6th April, 1998 stating that they were not allowing Kokal and others to cultivate their respective land. Karan Singh son of Rati Ram, another eye-witness, appeared as PW-5. He supported the prosecution case. However, in cross examination, he admitted that he was not holding any land in the vicinity of place of occurrence. He further stated that in village Bidawas, 16 acres of land were owned by Bhagmal, Channo, Surjo and Kokal but Bhagmal was in possession of the entire land for the last 4/5 years. He further stated that he along with Khiali and Bhagmal, had gone to the hospital and they reached there at 12.00 noon. This witness had returned after leaving 6 Criminal Appeal No.2051-SB of 2002 (O&M) Bhagmal and Khiali at the hospital. The police at that time was present at the place of occurrence. Bhagmal injured appeared as PW-7. He narrated the sequence of events, as was unfolded in the FIR. He admitted that the land of his father situated at villages Bidawas and Dhulera was mutated in his name and in the names of Kokal, Chhano and Surjo. He further admitted that they were co-owners of the land and no official partition of the land had taken place, however, by mutual agreement, partition was effected about 14/15 years ago. He further stated that 10 ½ acres of land was situated in one part of the village and 4 ½ acres of land at some other place. Out of 4 ½ acres of land, 3 acres of land was in the share of Chhano and Kokal, whereas 1 ½ acres of land was possessed by him. He had not applied for Khasra Girdawari. He further stated that his claim regarding the ownership and possession was accepted upto the High Court. He admitted that Chhano had suffered a consent decree in favour of Ram Kishan and Rambir and that decree was challenged by him. The land was mutated in their name and he had filed an appeal against the same. ASI Munshi Ram PW-6, who was then posted at Police Station, Bawal had recorded the statement Ex.PF of the complainant Khiali Ram. Thereafter, this witness had reached at the place of occurrence along with the complainant. He had also prepared rough site plan Ex.PH. He further stated that on 1st August, 1999, Ram Kishan was produced by his relatives and was arrested. Ram Kishan also produced Farsa Ex.P1. On receipt of opinion of the Medical Officer vide Ex.PE/1 that injury No.1 was dangerous to life, he had arrested Kokal Chand and Chando. On 4th August, 1999, Bhagmal was declared fit to make statement and his statement was recorded by this witness. Surender Kumar Patwari appeared as PW-8. He prepared the scaled site plan Ex.P1. 7 Criminal Appeal No.2051-SB of 2002 (O&M) HC Ram Sarup PW-9 on receipt of ruqa Ex.PF, had recorded the formal FIR Ex.PF/2. Dr.Virender Singh PW-10 had medico legally examined Bhagmal on 3rd August, 1999 and had found fracture of his fibula left side. Thereafter, statements of the accused under Section 313 Cr.P.C. were recorded and all incriminating circumstances were put to them. They denied the same and pleaded false implication. Appellant Kokal gave the following version: “Question No.10. Have you to say anything ? Answer: 1. that on the date of occurrence I was not present at the spot. I came to Court to attend my case titled as ‘Ram Kishan versus Bhagmal’ pending in the Court of Sh.Nazar Singh, Civil Judge (Jr. Divn.), Rewari. 2. that on the same date a case titled as ‘State versus Ram Singh etc.’ u/s 323/325 IPC pending in the Court of Sh.Nazar Singh, JMIC for order. The accused Ram Singh etc. are resident of village Nangal Sahbajpur which is situated near my village so they known to me and I know them personally. They had request me to stood surety one of them in case of conviction so I agreed to stood surety and requisite surety bond was thumb impressed by me but up to 1.30 p.m. order was not announced and Sh.Nazar Singh sent the case to CJM, Rewari for transferring the said case in any other Court and then we all left the Court complex at 1.30 p.m. and after that I came to my village by bus.” Appellant Ram Kishan also denied all the incriminating circumstances and stated that in village Bidawas, 125 kanals and 14 marlas of land was owned and possessed jointly by Kokal, Bhagmal, Channo, Ram Kishan and Rambir. In this land they had 10 shares and remaining 6 shares of land was owned by Bhagmal. Chhano had given his share to him and his brother Rambir. Bhagmal was annoyed over this and had initiated legal proceedings. Bhagmal along with his six sons was not 8 Criminal Appeal No.2051-SB of 2002 (O&M) allowing them to cultivate the land and used to interfere with their possession. He further stated that Rambir and Kokal had filed a civil suit for permanent injunction. The injunction application was accepted by the lower Court. In appeal, the application was dismissed and this Court in revision had ordered status quo. He further stated that they had moved several applications to the police praying that they were prevented from cultivating their fields, but the police had not taken any action. He further stated that Bhagmal and others had damaged their crops. On the day of occurrence, he was alone going on his tractor for ploughing his fields, when Bhagmal, Tara Chand, Kamla and Bimla came there and gave him injuries and he had caused injuries in his self-defence. Appellant Chando also denied all the incriminating circumstances put to her. She even denied her presence at the spot. In defence, the appellants examined Dr.A.S. Dahiya as DW-1, who had medico-legally examined Ram Kishan and had found abrasion on his left ring-finger and a linear abrasion on the left side of back of Ram Kishan. After radiological examination, he found that injury No.1 on the left ring-finger was a fracture. Rajesh Kumar, Civil Ahlmad DW-2 had brought the file of suit titled as ‘Ram Kishan v. Bhagmal and others’. Kailash Chand, Record Keeper of DC office appeared as DW-3. He had produced the file titled as ‘Bhagmal v. Chhanu. Sher Singh Arora, Advocate DW-4 stated that the plaint was drafted at the instance of Bhagmal and the same was exhibited as Ex.DW4/1. The order of withdrawal of the suit was proved as Ex.DW4/2. Rajinder Singh Chaudhary, Advocate appeared as DW-5. He proved written statement Ex.D3 filed by Bhagmal in the suit filed by Ram Kishan and others. 9 Criminal Appeal No.2051-SB of 2002 (O&M) Sachin Saini DW-6 was clerk of Sh.R.K. Saini, Advocate. In the suit titled as ‘Bhagmal v. Chhanu’, he had identified the vakalatnama. He proved the written statement as Ex.D4 and copy of plaint as Ex.D5. Constable Heera Singh DW-7 produced the original FIR No.130 dated 04.12.2001 registered at the instance of Kokal son of Gulab at Police Station Bawal under Sections 447, 148,149, 427 IPC and sections 25/54/59 of the Arms Act. Rajesh Kumar, Civil Ahlmad DW-8 had produced the summoned file. R.K. Tiwari, Advocate DW-9 proved written statement Ex.DW9/1. Balwant Singh Clerk of Sh.Amarjit Singh Yadav, Advocate appeared as DW-10 and stated that he had not brought the summons diary for 31st July, 1999, as the same was lost. I have heard Mr.S.K. Garg Narwana, Advocate appearing for the appellants and Mr.Manish Deswal, Deputy Advocate General, Haryana. Mr.Garg has stated that possession of the land was with the appellant Ram Kishan, therefore, he was well justified to exercise his right of self defence to property and his person, to cause injuries to Bhagmal along with his sons. Khiali had entered into the fields forcibly to plough the land. It is further submitted that appellant Ram Kishan had suffered injuries, which have not been explained by the prosecution and thus, they had suppressed the origin and genesis of the occurrence and the appellant Ram Kishan had also the right of self defence of property and his person, to cause injuries to Bhagmal, his uncle. Mr.Deswal has stated that the judgment of the trial Court is justified on the facts of the case and law. I have given my thoughtful consideration to the rival submissions made by counsel for the parties. 10 Criminal Appeal No.2051-SB of 2002 (O&M) It is a case of the accused appellants that Kokal, father of the appellant Ram Kishan, had been giving applications to the police authorities praying that they were not being allowed to cultivate their land by the complainant party. Furthermore, the trial Court had granted injunction in favour of the accused appellants. In appeal, the order of injunction was set aside and aggrieved against the same, the accused appellants had filed a revision petition in this Court, in which status quo was granted. Therefore, from the facts of the case, it cannot be determined that the appellant party was in exclusive possession of the land. Furthermore, it is a case of all the witnesses that in the revenue record, the possession of the land was joint and no partition had taken place. What can be comprehended from the facts of the case is that Channo had given his share of land to the appellant Ram Kishan and his brother Rambir, and a consent decree was passed in their favour. This had annoyed Bhagmal. Even if for the sake of arguments, the possession of the appellants over the land is assumed, on the day of occurrence, Bhagmal, who was 65 years old, was empty handed and was caused injuries by the appellant Ram Kishan and his father Kokal. The appellant Ram Kishan had suffered an injury on his ring finger of left hand. This injury was declared grievous. There was another injury, i.e. linear abrasion. Both of these injuries were not of such nature that an explanation to the same ought to be given by the prosecution. These injuries could be self-suffered also. Therefore, right of self defence to property and person will not accrue to the appellant Ram Kishan and this contention of the counsel for the appellants is hereby rejected. A perusal of the medical evidence reveals that injury No.1 suffered by Bhagmal was on the thigh. According to the doctor, muscles, neuron-vescular bundles as well as bones were cut due to that injury and 11 Criminal Appeal No.2051-SB of 2002 (O&M) profuse bleeding led to hemorrhagic shock. Injury No.1 was declared as dangerous to life. A reference can be made to a judgment rendered by a Division Bench of Hon’ble the Apex Court in ‘Harjinder Singh v. Delhi Administration’ AIR 1968 Supreme Court 867, wherein it was held as under: “(9) In Rajwant Singh v. State of Kerala, AIR 1966 SC 1874, 1878 Hidayatullah, J., referring to 1958 SCR 1495 = (AIR 1958 SC 465) observed: ‘As was laid down in 1958 SCR 1495 = (AIR 1958 SC 465) for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is satisfied.’ It seems to us that the High Court has not considered whether the third ingredient laid down by Bose, J., in 1958 SCR 1495 = (AIR 1958 SC 465) has been proved in this case or not. In our opinion, the circumstances justify the inference that the accused did not intend to cause an injury on this particular portion of the thigh. The evidence indicates that while the appellant was trying to assault Dalip Kumar and the deceased intervened, the appellant finding himself one against two took out the knife and stabbed the deceased. It also indicates that the deceased at that stage was in a crouching position presumably to intervene and separate the two. It cannot, therefore, be said with any definiteness that the appellant aimed the blow at this particular part of the thigh knowing that it would cut the artery. It may be observed that the appellant had not used the knife while he was engaged in the fight with Dalip Kumar. It was only when he felt that the deceased also came up against him that he whipped out the 12 Criminal Appeal No.2051-SB of 2002 (O&M) knife. In these circumstances it cannot be said that it has been proved that it was the intention of the appellant to inflict this particular injury on this particular place. It is, therefore, not possible to apply Clause 3 of Section 300 to the act of the accused. (10) Nevertheless, the deceased was in a crouching position when the appellant struck him with the knife. Though the knife was 5” to 6” in length including the handle it was nonetheless a dangerous weapon. When the appellant struck the deceased with the knife, he must have known that the deceased then being in a bent position the blow would land in the abdomen or near it – a vulnerable part of the human body and that such a blow was likely to result in his death. In these circumstances it would be quite legitimate to hold that he struck the deceased with the knife with the intention to cause an injury likely to cause death. We are, therefore, of the opinion that the offence falls under Section 304 Part I.” Since the appellant had given an injury on the thigh of Bhagmal, it cannot be inferred that he intended to cause death of Bhagmal, which was sufficient to cause death except for timely medical aid. The very fact that the injury was given on the thigh will rule out murderous assault on the part of the appellant Ram Kishan. Reliance can also be placed upon ‘Gokul Parashram Patil v. State of Maharashtra’ AIR 1981 Supreme Court 1441, wherein it was observed as under: “3. The learned counsel for the appellant has contended that the case does not fall within the ambit of Section 302 of the Code and that the two Courts below erred in relying on Virsa Singh v. State of Punjab, AIR