Crl. Appeal No. 215-DB of 1998 -1- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 215-DB of 1998 Date of decision, Jaunuary , 2008 1. Sharda Nand s/o Gordhan 2. Hawa Singh s/o Gordhan 3. Bijender Kumar s/o Hawa Singh 4. Mohinder Singh s/o Daya Nand (all residents of village Tajpur, P.S. Ganaur, Distt. Sonipat, now confined in Distt. Jail, Sonipat.) ....... Appellants/accused Versus State of Haryana. ........ Respondent CORAM: HON'BLE MR. JUSTICE J.S. KHEHAR AND HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.S. Cheema, Senior Advocate with Mr. K.D.S. Hooda, Advocate for the appellants. Mr. J.S. Toor, Additional Advocate General, Haryana. **** Sham Sunder, J. This appeal is directed against the judgment of conviction dated 9.12.1997, rendered by the Court of learned Sessions Judge, Sonepat vide which it convicted Shardha Nand, Hawa Singh, Bijender Kumar and Mohinder Singh, appellants, for the offences punishable under Section 302, read with Section 34 IPC, for causing the death of Balbir Singh, in furtherance of common intention; for the offences punishable under Section 325 read with Section 34 IPC, for causing grievous hurt to Dharambir with blunt weapon and for the offence punishable under Section 324 read with Section 34 IPC, for causing simple Crl. Appeal No. 215-DB of 1998 -2- hurt with sharp edged weapon to Ranbir Singh, for the offence under Section 323 read with Section 34 IPC for causing simple hurt with blunt weapon to Ranbir Singh and order of sentence dated 11.12.1997 vide which the accused were sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- each, and in default of payment of fine, to undergo further RI for one year each for the offence punishable under Section 302 read with Section 34 IPC. All the accused were further sentenced to undergo imprisonment for a period of one year each and to pay a fine of Rs. 500/- each, in default to undergo RI for a period of six months each for the offence punishable under Section 325 read with Section 34 IPC. All the accused were further sentenced to undergo imprisonment for a period of six months each and to pay a fine of Rs.250/- each, in default of payment of fine, to further undergo RI for a period of three months each, under Section 324 read with Section 34 IPC for causing hurt to Ranbir with sharp edged weapon. All the accused were further sentenced to undergo imprisonment for a period of three months each under Section 323 read with Section 34 IPC, for causing hurt to Ranbir with blunt weapon. 2. All the accused/appellants were directed to pay a sum of Rs.5,000/- each as compensation. In the event of recovery, the amount was ordered to be paid to the legal representatives of Balbir (deceased). In case of default of payment of this amount, the accused were directed to undergo RI for two years each. All the substantive sentences were ordered to run concurrently. 3. The facts, in brief, are that Dharambir, Satbir, Jagbir Ranbir and Balbir are brothers. On 14.1.1995 at about 6.15 P.M., Dharambir, Balbir and Ranbir were present in their house, in the area of Crl. Appeal No. 215-DB of 1998 -3- Village Tajpur, P.S. Ganaur. They heard dog barking. Dharambir came outside his house, and saw that Shardha Nand’s pet dog had bitten their pig. He lodged protest with Shardha Nand, upon which, the latter abused him. Dharambir also reacted in the same manner. Shardha Nand, out of anguish, went to his house situated in front of the house of Dharambir and brought a lathi. Hawa Singh his brother, whose house, is also situated in front of the house of Dharambir armed with Gandasa, Bijender, s/o Hawa Singh armed with Kudali and Mohinder, s/o Daya Nand, brother of Dharambir, armed with dang also came to the spot. Hawa Singh, raised an exhortation that Dharambir be taught a lesson, for abusing Shardha Nand. On hearing the same Ranbir and Balbir came to the spot. Hawa Singh gave a gandasa blow on the right side of the head of Ranbir Shardha Nand gave a lathi blow on the forehead of Balbir. Bijender gave a Kudali blow, on the head of Balbir. Shardha Nand gave a lathi blow, on the head of Dharambir. Shardha Nand gave another lathi blow on the left shoulder of Dharambir. Mohinder gave a lathi blow on the left side of the waist of Dharmbir. He gave another lathi blow, on the left wrist of Dharambir resulting into fracture. Mohinder gave another lathi blow, on the head of Ranbir. Shardha Nand, accused, gave another lathi blow, on the left arm of Ranbir. The injured raised alarm that they should be saved,which attracted Chander Bhan to the place of occurrence. All the accused left the spot, with their respective weapons. A tempo was seen coming, from the side of Malikpur. Dharmabir and Ranbir were taking Balbir( now deceased) to the hospital, in that tempo, but he succumbed to the injuries, sustained by him, at the hands of the accused on the way. They reached the hospital at about 7.15 P.M. The doctor attended Balbir and declared him dead. Dharmbir and Ranbir were also medico- Crl. Appeal No. 215-DB of 1998 -4- legally examined. The doctor informed the police. The police reached the Hospital and recorded the statement, Ex. PX of Dharmbir which was read over and explained to him, which was thumb marked by him in token of its correctness. Ex. PX was sent to Police Station Ganaur, on the basis whereof, Satbir Singh, Sub Inspector recorded FIR Ex. PX/2. ASI Raj Kumar, Incharge, Police Post Mimarpur prepared the inquest report of the dead body of Balbir. Post Mortem on the dead body of Balbir was got conducted by him. Thereafter, ASI Raj Kumar reached the spot, when Satbir Singh, Sub Inspector, S.H.O. Ganaur was found present there. 4. Sub Inspector Satbir Singh inspected the spot. He lifted the blood stained earth from the spot, which was converted into a parcel. The parcel was sealed and taken into possession vide memo Ex. PO. The site plan was prepared. The Dy. Superintendent of Police reached the spot. He supervised the investigation and thereafter handed over the same to ASI Raj Kumar aforesaid. On 23.1.1995, Raj Kumar, ASI arrested Bijender Singh, Hawa Singh, Shardha Nand and Mohinder, accused. On 24.1.1995, the accused were interrogated one by one. In the first instance, Bijender Kumar, accused was interrogated. He disclosed that he had concealed a Kudali in his house, and could get the same recovered by pointing out. His disclosure statement was recorded as Ex. PK/1. Thereafter, Shardha Nand, accused was interrogated, who disclosed that he had concealed a stick of Safeda, in his house, and could get the same recovered by pointing out. His disclosure statement was recorded as Ex. PL/1. Thereafter, Mohinder Singh, accused was interrogated, who disclosed that he had concealed a lathi made of bamboo in his kotha meant for tethering the goats, and could get the same recovered by pointing out. His disclosure statement was recorded as Crl. Appeal No. 215-DB of 1998 -5- Ex. PM/1. Thereafter, Hawa Singh, was interrogated, who disclosed that he had concealed one gandasa, in his kotha, and could get the same recovered, by pointing out. His disclosure statement was recorded as Ex. PM/5. In pursuance of their disclosure statements, the weapons aforesaid, were got recovered by them. The same were taken into possession, vide recovery memos Ex. PK to Ex. PN respectively. Rough site plan of the places of recovery of the weapons Ex. PN/6 and Ex. PN/7 were prepared. The statements of the witnesses were recorded, at various stages of the investigation. The case property was deposited with the M.H.C. at various stages of the investigation. After the completion of investigation, the accused were challaned. 5. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents relied upon by the prosecution. Charge under Sections 302, 323, 324 and 325 read with Section 34 IPC, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 6. The prosecution, in support of its case, examined Dr. Labh Singh, Medical Officer, Civil Hospital, Sonepat (PW-1), who gave his opinion Ex. PA/1 on the application Ex. PA, submitted by the police whether Dharmbir was fit to make statement, and Ex. PB/1 on the application Ex. PB, moved by the police that Ranbir was fit to make statement, Dr. R.R. Mittal, (PW-2), Medical Officer, Civil Hospital, Sonepat, who conducted the post-mortem examination, on the dead body of Balbir on 15.1.1995 at 11. 00 A.M., who found two injuries, on his person, Dr. Subodh Kumar, PW-8, who medically examined Dharmbir and Ranbir on 14.1.1995, in Civil Hospital, Sonepat and found four and three injuries Crl. Appeal No. 215-DB of 1998 -6- respectively on their person. Rajesh Kumar, Constable, who prepared the scaled site plan Ex. PD of the place of occurrence, on the pointing out of Dharmbir, Ranbir and Chander Bhan, Parkash Chander, Sub Inspector, who submitted the report under Section 173 Cr.P.C. and challaned the accused, Sant Lal, PW-5, Chanda alias Chandan PW-6, Dr. Promila Jain, PW-7, Dharambir PW-9, injured-cum- eye witness, Ranbir, injured-cum- eye witness, PW-10, Raj Kumar ASI,who investigated the case, PW-11, and Satyavir Singh, S.H.O. Police Station Jhajjar PW-12, who partly investigated the case. Thereafter, the Public Prosecutor for the State after tendering into evidence certain documents, closed the same. 7. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all incriminating circumstances, appearing against them, in the prosecution evidence. Sharda Nand , accused, in his statement under Section 313 of the Code of Criminal Procedure, stated that they were innocent. He further stated that at about 6.30 P.M. Dharambir and Ranbir entered their house. He further stated that his house is adjacent to their house. He further stated that he and his wife Om Pati were present in their house. Dharambir abused him and then along with his brothers Ranbir and Balbir opened assault upon them, with lathis. It was further stated by him, that in self defence, he along with his wife caused injuries to Balbir, Dharambir and Ranbir. He further stated that his co-accused were not at all present, at the time of occurrence, and they were falsely implicated in this case. 8. Hawa Singh, Bijender Kumar and Mohinder Singh, accused, in their statements under Sections 313 Cr.P.C. pleaded false implication. They further stated that they were not present, at the time of Crl. Appeal No. 215-DB of 1998 -7- occurrence. The also claimed that they were innocent. The accused, however, did not lead any evidence in their defence. 9. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the learned Sessions Judge, Sonepat, convicted and sentenced the accused, as stated hereinbefore. 10. Feeling aggrieved, against the judgment of conviction and the order of sentence, the instant appeal, was filed by the appellants/accused. 11. We have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. Learned Counsel for the appellants, contended that the injuries, on the person of Shardha Nand, were not explained by the complainant party and, as such, the prosecution suppressed the very genesis of the occurrence. He further contended that Hawa Singh, brother of Sharda Nand, appellant, Bijender Kumar s/o Hawa Singh,appellant, and Mohinder s/o Daya Nand, brother of Sharda Nand, were not present, at the time of the alleged occurrence, but were falsely implicated, being members of the same family. He further contended that the appellants did not form a common intention, nor there was previous enmity, between the parties. He further contended that, it was all of a sudden, that the quarrel ensued, between the complainant party, and Sharda Nand, resulting into injuries, on the person of Balbir, Dharambir and Ranbir and, as such, no offence punishable under Section 302, read with Section 34 IPC, was made out, as there was no intention, on the part of the appellants, to cause death of said Balbir, and, at the most, an offence punishable under Section 304, Part-II of the IPC, was Crl. Appeal No. 215-DB of 1998 -8- made out. It was further contended by the Counsel for the appellants, that there was delay in lodging the FIR, which remained un-explained, resulting into concoction of story and false implication of the appellants. 13. On the contrary, the learned Counsel for the State contended that all the appellants, had common intention, to cause injuries on the person of Balbir, Dharambir and Ranbir. He further contended that on account of the injuries caused, on the person of Balbir, in furtherance of common intention, by the appellants, he died. He further contended that on the person of Ranbir and Dharambir, injuries were also caused by all the appellants, in furtherance of their common intention. He further contended that there was no delay in lodging the FIR and, if there was any delay, the same stood explained. He further contended that the appellants were aggressors. He further contended that the mere fact that the simple and minor injuries, on the person of Sharda Nand, were not explained, by the prosecution witnesses, did not cause any dent, in the case of the prosecution. He, thus, supported the judgment of conviction and the order of sentence. 14. The occurrence took place on 14.1.1995, at about 6.15 P.M., in the area of Village Tajpur P.S. Ganaur. Police Station Ganaur, is at a distance of 15 Kilometers, from the place of occurrence. Sonepat, where the Civil Hospital is situated is also at a sufficient distance, from the place of occurrence. Dharambir, PW-9, in clear-cut terms, stated that they took Balbir, their brother who was in a critical condition, after having sustained injuries, at the hands of the accused, to Civil Hospital Sonepat, and reached there at 7.15 P.M., though he died on the way. It was proved from Ex. PU, written information, sent by the Doctor to the Police Station Crl. Appeal No. 215-DB of 1998 -9- concerned, on 14.1.1995 at 7.35 P.M. that Balbir was brought to Civil Hospital, Sonepat. It means that within the shortest possible time, the dead body of Balbir was taken to Civil Hospital, Sonepat. Dharambir and Ranbir, the other injured, accompanied him. Even, it was proved from the statement of Dr. Subodh, PW-8, that Dharambir was medically examined at 8.26 P.M. and Ranbir was medically examined at 8.36 P.M. on 14.1.1995 in Civil Hospital, Sonepat. On receipt of written information Raj Kumar, ASI at that time posted as in-charge Police post Mimarpur, Police Station Ganaur, reached Civil Hospital, Sonepat. After obtaining the opinion of the doctor, as to whether, Dharambir was fit to make statement he recorded his statement at 1.30 A.M. on 15.1.1995, on the basis whereof, the FIR was recorded at 2.55 A.M. in Police Station Ganaur, whereas, the special report reached Illaqa Magistrate on 15.1.1995 at 4.30 P.M. Since, both the injured, brought Balbir, the other injured, who, however, died on the way, to the Hospital at about 7.15 P.M. on 14.1.1995 whereas the occurrence took place at 6.15 P.M. on 14.1.1995, there was no time, with them to concoct the story, and falsely implicate the accused. There was, therefore, virtually no delay in lodging the FIR. Even, if, it is assumed, that there was some delay, the same stood explained, from the aforesaid circumstances. The first anxiety of the kith and kin of Balbir (now deceased) was to save his life, by providing him the best medical aid. Both Ranbir and Dharambir, must be puzzled and confused, on account of the gruesome murder of their brother Balbir. It is settled principle of law, that mere delay, in lodging the FIR, is not sufficient to throw away the prosecution case overboard. If there is any delay, in lodging the FIR, the Court is required to scrutinize the evidence of the prosecution carefully and cautiously. If after careful scrutiny of the Crl. Appeal No. 215-DB of 1998 -10- evidence of the witnesses, it comes to the conclusion that the same is cogent convincing and reliable, the delay in lodging the FIR pales into insignificance. The evidence of Dharambir and Ranbir, both the injured duly corroborated by the medical evidence, recovery of weapons, and the presence of human blood on lathi, is cogent, convincing, reliable and unimpeachable. It does not suffer from any serious infirmity. It inspires confidence, in the mind of the Court. In these circumstances, the delay, if any, in lodging the FIR, hardly mattered. The submission of the learned Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 15. There was certainly common intention, amongst the accused/appellants, in furtherance whereof, the injuries were caused on the person of Balbir, who died, on account of the same, as also on the person of Ranbir and Dharambir, his brothers. No doubt, in the first instance, as proved from the evidence of Dharambir and Ranbir, there was a quarrel outside their house, in the lane, on account of the reason, that Shardha Nand's pet dog had bitten the pig of Dharambir. Dharambir lodged a protest, with Shardha Nand. Shardha Nand abused him, and he also reacted, in the same manner. At that time, both Shardha Nand and Balbir (now deceased) were empty handed. Had Shardha Nand picked up some lathi or danda, from the spot, and caused injuries, on the person of Dharambir, it would have been said that the occurrence was the result of sudden quarrel. However, as proved, from the statements of Dharambir (PW-9) and Ranbir (PW-10) Shardha Nand went to his house and brought a lathi. Hawa Singh armed with gandasa, Bijender armed with Kudali and Mohinder armed with lathi also accompanied him. The appellants, as is proved, from the evidence Crl. Appeal No. 215-DB of 1998 -11- of the aforesaid witnesses, are related to each other, though, they are living in separate houses, yet the same are situated in the same locality. The common intention is to be inferred from the attending circumstances of each case. All the accused/appellants came together to the place of occurrence, armed with different types of weapons, referred to above. All of them caused injuries, on the person of Balbir (now deceased), Ranbir and Dharambir together. There were as many as four injuries on the person of Dharambir, out of which one was on the head whereas, injury No.3 on the left wrist of Dharambir was grievous in nature. There were also four injuries, on the person of Ranbir, out of which two were on the right and left parietal region. There were two injuries, on the person of Balbir (now deceased) out of which one was on left tempero parietal region of the skull of the size of 5 cm x 0.5 cm. bone deep, and, on further exploration, the underlying bone was found fractured. Brain matter was found lacerated. It was this injury, which caused the death of Balbir. It was sufficient to cause death, in the ordinary course of nature, as deposed to by Dr. R.R. Mittal, Medical Officer, PW-2. As many as ten injuries, referred to above, on the person of Balbir, Dharmbir and Ranbir were caused by all the accused/appellants, with different types of weapons, simultaneously. All the accused/appellants after causing injuries, left the place of occurrence with their respective weapons together. All these circumstances, clearly proved that the accused/appellants, formed a common intention, and, in furtherance of the same, caused injuries, on the person of Balbir, as a result whereof, he died and injuries were caused on the person of Ranbir and Dharambir. They participated, in the crime, in furtherance of common intention. The submission of the learned Counsel for the appellants, in this Crl. Appeal No. 215-DB of 1998 -12- regard, being without merit, must fail, and the same stands rejected. 16. The Counsel for the appellants, placed reliance on Jarnail Vs. State of Haryana 2005 (3) R.C.R (Criminal) 254 (P&H.) (Division Bench), in support of his contention, that no offence under Section 302 IPC, was made out, but only an offence punishable under Section 304 Part II IPC was made out, as the accused had no intention to cause injuries on the person of Balbir (now deceased). The facts of the aforesaid authority are distinguishable, from the facts of the present case, as in that case the accused quarrelled with 'R', whereas deceased 'V' intervened and, in the process, received a knife blow, in his abdomen, resulting into his death. In these circumstances, it was held that only the offence punishable under Section 304 Part-II, was made out, as there was no intention to cause injuries to 'V' by the accused, whereas, his target was 'R'. In the instant case, in the first instance, quarrel took place, between Dharambir and Shardha Nand, in which both of them abused each other, and the matter came to an end. It was thereafter, that Shardha Nand went to his house, situated near by, and after cool thought, brought a lathi, and his co-accused also accompanied him, at that time. Thereafter, the injuries on the head of Balbir and on the person of Ranbir and Dharambir were caused in furtherance of common intention. The act by the accused, was done, with the intention of causing bodily injury, to Balbir, and the bodily injury intended to be inflicted, was sufficient, in the ordinary course of nature, to cause death. Balbir died, on account of the aforesaid injury. The case, thus, fell within the purview of para 3 of Section 300 IPC. In Virsa Singh Vs. the State of Punjab (1958) S.C.R. 1495, it was held that one injury by the accused, may be sufficient, to hold him guilty, for the commission of an Crl. Appeal No. 215-DB of 1998 -13- offence, under Section 302 IPC. It was further held in this authority, as under:- In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted, it is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convict, for, if does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on common sense; the kind of enquiry that twelve good men and true could readily appreciate and understand.” Similar principle of law was laid down in Hari Yadav Vs. State of Bihar 2008 (1) Law Herald (SC) 13. The principle of law laid down in the aforesaid authorities, is fully applicable to the facts of the instant case. Since, the facts of Jarnail's case (supra), are distinguishable from the facts of the present case, no help can be drawn, by the learned Counsel for the appellants, therefrom. In the instant case, an offence punishable under Section 302 read with Section 34 IPC, was committed, by the accused/appellants, and the trial Court was, thus, right in holding so. The submission of the learned Counsel for appellants/accused, being without merit, must fail, and the same stands rejected. 17. No doubt, Shardha Nand, in his statement, under Section Crl. Appeal No. 215-DB of 1998 -14- 313 of the Code of Criminal Procedure, stated that the accused attacked him and