Criminal Appeal No. 810-SB of 1996 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 810-SB of 1996 DATE OF DECISION: April 06, 2010 Ramphal and others .....APPELLANTS VERSUS State of Haryana .....RESPONDENT CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Mr Gautam Dutt, Advocates for the appellants. Ms Hem Lata Balhara, Assistant Advocate General, Haryana Mr Sudhir Sharma, Advocate for the complainant. T.P.S .MANN.J. Alongwith the present appeal filed by the three convicts against their conviction and sentences, the Court intends to dispose of Crl. Revision No. 312 of 1997, filed by complainant-Om Parkash, wherein he has sought setting aside of the acquittal of Rampal accused and also for enhancement of the sentences of the three convicts/appellants, as both the cases arise out of the same judgment. According to the prosecution, on 15.9.1992 at 7.00 AM complainant-Om Parkash went to his nohra from his house. He saw Ramphal and his wife Smt. Bugla present in front of their house and abusing him in the name of his mother and sister. When the complainant asked them Criminal Appeal No. 810-SB of 1996 -2- as to why they were abusing him, they stated that they would teach him a lesson for being violent. Ramphal attacked the complainant with a lathi and gave a blow on his head. Smt. Bugla was holding a drati, which she wielded in inflicting an injury on the left side of the head of the complainant. Hari Kishan gave a blow with a lathi held by him, hitting on the left eye of the complainant. In the meantime, Rampal also came there and gave a blow to the complainant. The alarm raised by the complainant attracted Pohap Singh son of Leela and Hari Kishan son of Jagjit, who rescued him from the assailants. The complainant was removed in an injured condition to Community Health Centre, Pataudi, where he was medico-legally examined by Dr. J.S.Choudhary. The doctor then sent a ruqa which was received by HC Hawa Singh, when he, alongwith Constable Satya Dev, was present at the gate of Municipal Committee's office in connection with patrolling. H.C Hawa Singh reached the hospital and sought opinion from the doctor as to whether injured-Om Parkash was fit to make statement. He was informed that the injured already stood referred to General Hospital, Gurgaon. Accordingly, HC Hawa Singh went to General Hospital, Gurgaon and sought opinion about the fitness of injured-Om Parkash to make statement. The doctor declared the injured fit to make statement. Accordingly, statement Ex.PG was made by injured-Om Parkash, which was recorded by HC Hawa Singh. Keeping in view the fact that the doctor had found three injuries on the person of Om Parkash, out of which injuries No.1 and 2 were advised x-ray, whereas injury No.3 was simple in nature and caused by a blunt weapon, HC Hawa Singh did not find commission of any cognizable offence. Accordingly, he proceeded to record an entry in the Criminal Appeal No. 810-SB of 1996 -3- daily diary register. On 17.9.1992, the police received x-ray reports regarding fractures of frontal area crossing parietal area of Om Parkash, which, prima facie, disclosed commission of offence under Section 325/34 IPC. Accordingly, formal FIR was registered at Police Station, Pataudi. The investigation of the case was started by HC Hawa Singh, who visited the spot and prepared a rough site plan. He recorded the statements of the witnesses and arrested all the four accused on 18.9.1992. On 17.10.1992, SI Raghubir Singh took over the investigation and converted the offence to one under Section 307/34 IPC, in view of the opinion given by Dr. J.S.Choudhary that injuries No.1 or 2 were dangerous to life, if left un- treated. The accused, other than, Smt. Bugla were again arrested on 23.10.1992, whereas Smt. Bugla was arrested on 7.11.1992. After completion of the investigation, final report under Section 173 Cr.P.C was submitted in the Court of Judicial Magistrate Ist Class, Gurgaon. Vide order dated 22.1.1993, learned Magistrate committed the case to the Court of Sessions, as the offence under Section 307 IPC was exclusively triable by the Court of Sessions. After hearing arguments on the charge and perusing the final report submitted by the police and other material brought on the file, learned Additional Sessions Judge, Gurgaon, vide order dated 25.5.1993 found a prima facie case under Sections 323/34, 325/34 and 307/34 IPC against all the accused persons. They were, accordingly, charged, to which they pleaded not guilty and claimed trial. In support of its case, the prosecution had examined 9 witnesses. Om Parkash, who had received injuries in the occurrence and Hari Kishan son of Jagjit were examined by the prosecution as PW-3 and Criminal Appeal No. 810-SB of 1996 -4- PW-4, respectively, so as to depose about the ocular account. PW-1 Dr J.S.Choudhary deposed about the medico-legal examination of the injured, which he conducted on 15.9.1992 at 12.30 PM and found the following injuries: 1. Bruise 1½ cm x 1½ cm in diameter light reddish blue in colour present on anterior side of left parietal bone region with swelling 6 cm x 6 cm present adjacent and anterior to it. 2. Swelling 1½ cm in diameter present on antero lateral part of left (sic) parietal bone region. 3. Black eye i.e. bruise 3½ cm x 1½ cm present on left upper eyelid, bluish in colour. According to Dr. J.S.Choudhary, injuries No. 1 and 2 were referred for opinion of the Surgeon and for x-ray examination, while injury No.3 was simple. The weapon used for causing all the injuries was blunt. The duration of the injuries, at the time of examination, was within six hours. He deposed that he had given opinion Ex.PD/1 that if untreated, injuries No.1 or 2 could be dangerous to life. He also stated that injuries No.1 or 2 were sufficient to cause death in the ordinary course of nature, if the same had remained untreated. In cross-examination, he deposed that police had never sought his opinion as to whether injuries No.1 or 2 were sufficient to cause death, if the same had remained untreated and on that point his opinion had been taken in the Court for the first time. Dr. B.B.Aggarwal, Medical Officer, General Hospital, Gurgaon while appearing as PW-9, deposed that he had radiologically examined the injured on 15.9.1992 and found two fractures (linear) over frontal area crossing up to parietal. In this regard, he proved his report Ex.PH. In Criminal Appeal No. 810-SB of 1996 -5- cross-examination, he admitted it as correct that he had not mentioned in his report Ex.PH specifically that there were two fractures. Dr.S.Khanna, Medical Officer, General Hospital, Gurgaon, while appearing as PW-8, testified that on 16.10.1992, he had given his opinion Ex.PL/1 that the patient was irritable, bleeding in nose and there was history of semi-consciousness. X-ray showed fracture of fronto-parietal region. He also stated that patient remained under his treatment from 15.9.1992 to 29.9.1992. The investigation part of the case was proved by PW-5 HC Hawa Singh and PW-6 SI Raghubir Singh. PW-2 H.C.Jagdish Chander proved copies of report Nos.25 dated 15.9.1992 (Ex.PE) and 17 dated 17.9.1992 (Ex.PF) made in the roznamcha of Police Station, Pataudi, whereas the scaled site plan Ex.PK was proved by PW-7 Kishan Gupta. When examined under Section 313 Cr.P.C, all the accused had denied the prosecution allegations levelled against them. According to Ramphal accused, on the day of occurrence, he was coming from Rewari after doing work in Aggarwal Metal Works. When he reached in front of his nohra, Om Parkash PW started abusing him that he had diverted the flow of dirty water, which resulted in the dirty water collecting in front of his nohra. Om Parkash grappled with him and started giving fists and slaps. In order to save himself, he pushed Om Parkash, who received injuries by fall on a stone. His other co-accused were not present at all. In defence, the accused had examined three witnesses. DW-1 Suraj Bhan supported the plea of alibi taken by Hari Kishan accused by testifying that on 15.9.1992, said Hari Kishan, who was the grand son of his Criminal Appeal No. 810-SB of 1996 -6- wife's brother, was residing with him in his village, as he had taken admission in 10+2 in S.K.College, Kanwali. Even on 15.9.1992, Hari Kishan was present with him and had also attended the college on that day. He went to the college at 8.30 AM on that day and returned to his house at 3.30 PM. DW-2 Dr U.S.Yadav, Lecturer, Government College, Kanwali, Distt. Rewari proved the admission record pertaining to Hari Kishan accused. According to him, Hari Kishan got admission in the college in B.A first year and his roll number was 2101. He was marked present on 15.9.1992 in the attendance register. He also produced certificate Ex.DB issued by K.P.Choudhary, Principal of the college by stating that the same bore his signatures and he could identify them as he had been working with him. DW-3 Dr. Krishna Yadav, another Lecturer from Government College, Kanwali deposed that she had brought the attendance register pertaining to B.A first year. As per the attendance register, Hari Kishan accused was present in the college on 15.9.1992 in the first period at 9.40 AM and she had marked him present. After hearing learned counsel for the parties and going through the evidence available on the record, learned trial Court held that the accused had the motive to commit the crime. The testimonies of injured-Om Parkash and Hari Kishan regarding the manner in which the occurrence had started and the accused inflicting injuries to Om Parkash were found acceptable. The same were also found to be corroborated by medical evidence. The involvement of Rampal-accused in the crime was found to be doubtful. At the same time, the plea of alibi, set up by Hari Kishan accused was rejected. Injury No.1 attributed to Ramphal accused was found to be attracting the provisions of Section 307 IPC, whereas injury No.2 attributed Criminal Appeal No. 810-SB of 1996 -7- to Smt. Bugla fell within the ambit of Section 325 IPC as it resulted in a fracture. Injury No.3 attributed to Hari Kishan accused was simple in nature and, thus, falling within the ambit of Section 323 IPC. Accordingly, the three convicts i.e. the present appellants were convicted under Sections 307/34 IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- each. In default of payment of fine, the defaulting accused was to undergo further rigorous imprisonment for four months. They were also convicted under Sections 325/34 IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.400/- each. In default of payment of fine, the defaulting accused was to undergo further rigorous imprisonment for two months. They were further convicted under Sections 323/34 IPC and sentenced to undergo rigorous imprisonment for four months each. All the sentences of imprisonment were ordered to run concurrently. Out of the amount of fine, if recovered, a sum of Rs. 3,000/- was ordered to be disbursed to complainant-injured Om Parkash as compensation. I have heard the learned counsel for the parties and perused the evidence with their able assistance. At the outset, the learned counsel for the appellants has stated that Ramphal-appellant, who was attributed injury No.1 and which injury was declared to be dangerous to life, has died on 16.2.2009. He has also placed on record his death certificate duly attested by Principal, M.L.A Sr. Secondary School, Jatauli (Gurgaon). Accordingly, the appeal of Ramphal convict has abated qua Ramphal-appellant and may be disposed of as such. Even on the date of hearing, learned State counsel had sought an adjournment for verifying the stand taken by the appellants that Ramphal Criminal Appeal No. 810-SB of 1996 -8- had since died. Pursuant to the the said statement, learned State counsel has also produced a copy of the death certificate, duly endorsed by the Registrar, Births and Deaths, Municipal Corporation, Gurgoan to the effect that Ramphal died on 16.2.2009 and necessary entry in that regard was made on 17.2.2009 vide registration No.262. The copy of the death certificate bearing the endorsement made by the Registrar, Births and Deaths is also taken on record. According to the prosecution, PW-3 Om Parkash had received injuries at the hands of Ramphal, Hari Kishan and Smt.Bugla. The injury attributed to Rampal accused was not corroborated by the medical evidence as Dr. J.S.Choudhary had found only three injuries on the person of injured and did not find any injury corresponding to the role attributed to Rampal in inflicting an injury upon Om Parkash. The testimony of PW-3 Om Parkash is corroborated by PW-4 Hari Kishan. The defence has not been able to bring any material on the record to show as to why the testimonies of PW-3 Om Parkash and PW-4 Hari Kishan be not believed insofar as causing of injuries by Ramphal, Hari Kishan and Smt. Bugla accused was concerned. According to the prosecution, when Om Parkash reached his nohra in the village, which was situated in front of the house of the accused, he found accused Ramphal and Smt. Bugla present there, who started abusing him in the name of his mother and sister. Even according to the defence, it was Ramphal appellant, who had diverted the flow of dirty water, which resulted in the dirty water accumulating in front of his nohra. A quarrel ensued between them, in which Om Parkash-complainant was said to have given fists and slaps to Ramphal and in order to save himself, Ramphal had pushed Om Parkash, who received injuries by falling on a Criminal Appeal No. 810-SB of 1996 -9- stone. In such a situation, Om Parkash would not have received the type of injuries, which were found on his person. Moreover, by falling on a stone, he would have received only one injury and not three as found by PW-1 Dr. J.S.Choudhary. Therefore, no credence can be given to the defence plea that complainant Om Parkash had initiated the occurrence and it was only thereafter that Ramphal had pushed him and the latter falling on a stone. The plea of alibi, as set up by Hari Kishan appellant, has rightly been rejected by the learned trial Court. According to HC Hawa Singh PW- 5, he had arrested all the accused, including Hari Kishan on 18.9.1992. Despite the same, Hari Kishan appellant was marked present in the attendance register on 18.9.1992 and 19.9.1992. All this shows that no implicit reliance can be placed upon the attendance register showing the presence of Hari Kishan in the college on 15.9.1992. There was no serious enmity between the parties. The dispute was only regarding accumulation of dirty water in the street, situated between the nohra of complainant-Om Parkash and the house of the accused. None of the accused was shown to be carrying any lethal weapon. The three male accused were carrying a lathi each, whereas Smt. Bugla, the fourth accused was carrying a drati with her, which was used from its reverse side. None of the accused had repeated the blow. According to PW-1 Dr. J.S.Chouhdary, he had given his opinion Ex.PD/1 on the application dated 17.10.1992 Ex.PD, submitted by the police that if untreated, injuries No.1 or 2 could be dangerous to life. Further, injuries No.1 or 2 were sufficient to cause death in the ordinary course of nature, if the same had remained untreated. The second part of the opinion was never given by PW-1 Dr. J.S.Choudhary during the Criminal Appeal No. 810-SB of 1996 -10- investigation of the case. Even the opinion Ex.PD/1 about injuries No.1 or 2 being dangerous to life, if remained untreated, was given on 17.10.1992, whereas the injured had already been discharged from the hospital on 29.9.1992. Further, there was no categorical opinion given by Dr. J.S.Choudhary about injuries No.1 or 2, being dangerous to life, if left untreated. Instead, the opinion given was vague that injuries No.1 or 2 could be dangerous to life. Under these circumstances, this Court finds it difficult to sustain the conviction of the convicts under Sections 307/34 IPC. As the injury attributed to Ramphal also resulted in a fracture, the same would fall under under Section 325 IPC and not under Section 307 IPC. Therefore, the conviction of the appellants under Sections 307/34 is liable to be converted to Sections 325/34 IPC. At the same time, the conviction of the appellants for the offences under Sections 325/34 and 323/34 IPC had been rightly recorded by the learned trial Court. The occurrence had taken place on 15.9.1992. A period of more than 17 years has elapsed since then. The proceedings before the learned trial Court went on for four years. The present appeal had remained pending for more than 13 years. Out of the two surviving appellants, Hari Kishan had been serving in the army, whereas Smt. Bugla is a woman. None of them was shown to be a previous convict, nor there was anything against their antecedents or character to deny them the benefit of probation. Under these circumstances, a case is made out for extending the benefit of probation to both Hari Kishan and Smt. Bugla-appellants by setting aside their sentences of imprisonment and fine. In view of the fact that there was no medical evidence on the record to confirm the participation of Rampal accused in the crime, his Criminal Appeal No. 810-SB of 1996 -11- acquittal, as recorded by the learned trial Court, cannot be interferred with. Resultantly, the appeal of Ramphal appellant is dismissed as having abated. The conviction of Hari Kishan and Smt. Bugla appellants under Sections 307/34 IPC is altered to one under Sections 325/34 IPC. Their conviction under Sections 325/34 and 323/34 IPC, as recorded by the trial Court, are maintained. The sentences of imprisonment and fine imposed upon them are set aside and instead, they are ordered to be released on entering into bonds in the sum of Rs.20,000/-each, with one surety in the like amount, to the satisfaction of Chief Judicial Magistrate, Gurgaon, to keep peace and be of good behaviour for a period of one year, failing which they shall be required to serve the sentence imposed upon them. The entire amount of fine shall be treated as compensation and be disbursed as such to the injured. Crl. Appeal No.810-SB of 1996 is, accordingly, disposed of, whereas Crl. Revision No.312 of 1997 is dismissed. April 06, 2010 (T.P.S.MANN) Pds JUDGE