Crl. A. No. 438-SB of 2001 --1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.438-SB of 2001 Date of Decision : 24.02.2011 1. Ravi Dutt s/o Daya Parkash r/o Sulchani, (since deceased) 2. Naresh s/o Ravi Dutt r/o Sulchani, 3. Sumesh s/o Ravi Dutt, r/o Sulchani, 4. Balram s/o Shiv Nand r/o Makhand (Uchana) ... Appellants Versus The State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL. Present: Mr. R.N. Kush, Advocate for the appellants. Mr. Dharuv Dayal, D.A.G., Haryana, for the respondent-State. -- M.Jeyapaul, J. Introduction: Totally six accused faced the trial for the offences punishable under Sections 148,323 and 307 read with Section 149 of the Indian Penal Code. During the course of trial, the 1st Crl. A. No. 438-SB of 2001 --2- accused Rameshwar and the 4th accused Rajesh died. The trial Court convicted the other four accused, who have preferred the instant appeal before this Court challenging conviction under Sections 148, 308 read with Section 149 and 452 of the Indian Penal Code. The maximum sentence awarded was three years rigorous imprisonment for offence under Section 308 read with Section 149 of the Indian Penal Code. 2. During the pendency of the appeal, the 1st appellant Ravi Dutt passed away. The death certificate of Ravi Dutt was produced. As per the death certificate Ravi Dutt, appellant no.1 passed away on 28.11.2009. The said fact was verified by the respondent-State. Therefore, the appeal qua the 1st appellant Ravi Dutt abated. Now the Court is concerned with the three other appellants namely Naresh, Sumesh and Balram, appellant nos. 2 to 4. Case in brief of the Prosecution: 3. It is the case of the prosecution that all the six accused having been armed with spear and lathis barged into the house of Kamla, PW-7 in the absence of her husband. Accused Ravi Dutt and accused Rajesh (since deceased) exhorted the other accused to attack PW-7 having inquired about the whereabouts of her husband. The accused Crl. A. No. 438-SB of 2001 --3- Rameshwar (since deceased) kicked on the stomach of PW-7, who was pregnant by eight weeks. The accused Balram attacked PW-7 on her right knee with spear lithi wise and the accused Naresh attacked her on her shoulder with lathi and caused injury on her person and as a result of which, she aborted eight weeks old foetus. Verdict of the Trial Court. 4. The trial Court heavily relied upon the evidence of PW-7 and PW-8 in the background of the evidence of PW- 1 and the medicolegal report submitted by her and rendered a verdict of conviction. Submissions made by Mr. R.N. Kush, learned counsel for the appellants: 5. The evidence of DW-1 and DW-2 would go to show that earlier case registered against these accused alongwith three other persons at the instance of the sister of PW-7 had to be closed as there was no such occurrence. The injuries found on the person of PW-7 could have been caused by self infliction. The abortion undergone by PW-7 was not established. There is a delay in lodging the first information report. No effort was taken by the husband or the husband's brother of PW-7 to lodge a complaint forthwith though they were reportedly present immediately after the occurrence. Crl. A. No. 438-SB of 2001 --4- Therefore, it is his submission that the prosecution failed to establish beyond reasonable doubt the charges framed against the accused. Submissions made by the learned Deputy Advocate General for the respondent-State: 6. The injured witness PW-7 has cogently spoken to the injuries she sustained and the abortion she had undergone on account of shock she received due to the injuries sustained by her at the hands of the accused. The evidence of PW-8 would also corroborate the testimony of injured witness to the effect that the accused were very much present at the time of the occurrence. It is his further submission that the husband and brother of the husband of PW-7 had to attend the medical treatment of PW-7 and therefore they had not thought it fit to give first information report. The evidence of the victim as well as the evidence of the doctor who examined her would establish that she aborted eight weeks foetus. Therefore, it is his submission that the trial Court has rightly passed a verdict of conviction. Discussion:- 7. PW-7 is an injured witness. The injuries sustained by PW-7 as spoken to by her was amply corroborated by PW-1, who medico-legally examined her at the time of her Crl. A. No. 438-SB of 2001 --5- admission. PW-7 has deposed before the trial Court that there was heavy bleeding on account of the attack launched by the accused including the 2nd appellant Naresh and 4th appellant Balram herein. A heavy kick was given by Rameshwar, accused (since deceased), as a result of which there was profuse bleeding through her vagina. She being a lay woman in her own style has deposed that the foetus was aborted to save her life by the doctor, who attended her. 8. Coming to the evidence of PW-1, it is found that PW-7 encountered profuse bleeding on account of injuries she received at her abdomen. She was very categoric that the heavy bleeding was not due to menstruation. She noted the discharge of blood and placenta through the vagina on account of the attack. Yet another aspect also was noted down by PW-1 that the uterus of PW-7 was anti-verted of eight weeks size. 9. The evidence of PW-7 in the background of the evidence of PW-1 would go to show that PW-7 who was pregnant by eight weeks aborted foetus formed in her womb and the same had come out as blood and placenta through her vagina on account of the injuries she sustained. The accused also having admitted the position that there was an abortion to PW-7 had subjected PW-7 to cross examination. Though Crl. A. No. 438-SB of 2001 --6- the 2nd appellant Naresh and 4th appellant Balram had caused injuries on the right shoulder and right knee respectively, the offence was committed by the unlawful assembly constituted by all the accused including the appellants 2 to 4. The 3rd appellant Sumesh who was armed with lathi cannot also escape from the charges levelled against him as he was a member of the unlawful assembly during the course of prosecution of the common object of that assembly. PW-8, who is none other than the brother-in-law of PW-7 has also deposed that all the accused-persons barged into the house of PW-7 and caused injuries on her person. The evidence of PW-8 has also lent corroboration to the evidence of PW-7. 10. It is true that DW-1 has spoken to an occurrence reported to the police about seven days earlier to the present occurrence by the sister of the complainant, PW-7 and DW-2 has spoken to the fact that the inquiry embarked upon by him reflected that there was no such occurrence. But it is on record that DW-2 admitted the fact that on account of the complaint given by the sister of PW-7 to higher officers in connection with the investigation of the case, the Station House Officer was shifted. At any rate the present case cannot be disbelieved by this Court just because the case launched by the sister of the complainant turned out to be a case of “no Crl. A. No. 438-SB of 2001 --7- occurrence”. 11. I am unable to subscribe to the submissions made by the learned Counsel appearing for the appellants that self inflicted injury would have been projected in this case to falsely book the accused/appellants herein. The Court cannot reject the testimony of the injured witness PW-7. 12. The husband of PW-7 and his brother had to urgently attend to the medical treatment of PW-7, who was found profusely bleeding on account of the attack launched by the accused. Rightly PW-8 brother of the husband of PW-7 and the husband of PW-7 had given top priority for the treatment of PW-7. At any rate, it is found that PW-7 who was admitted to the hospital immediately after the occurrence lodged the complaint. 13. Of course in the medicolegal report the doctor has wrongly noted the time of the occurrence at 5.30 PM instead of 5.30 AM. It is nobody's case that the occurrence took place at 5.30 PM. Therefore the accused cannot take advantage of the inadvertent noting of the time of occurrence by the doctor in the medicolegal report. Conclusion 14. In view of the above, the verdict of the trial Court convicting the 2nd appellant Naresh, 3rd appellant Sumesh and Crl. A. No. 438-SB of 2001 --8- 4th appellant Balram for offences under Sections 148, 308/149 and 452 of the Indian Penal Code and the sentence imposed on them for the aforesaid offences is confirmed. The appeal is dismissed. The bail bond if any executed by the accused/appellants herein shall stand cancelled. The Chief Judicial Magistrate shall take necessary steps in accordance with the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure and compliance report be sent forthwith. 24.02.2011 ( M. Jeyapaul ) dinesh Judge Whether to be referred to the Reporters or not? ( Yes/No )