Criminal Revision No. 453 of 1993 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 453 of 1993 Date of Decision: 29.5.2008 Atma Ram and Others …Petitioners Versus State of Haryana …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Baldev Singh, Senior Advocate with Mr. Arshvinder Singh, Advocate for the petitioners. Ms. Shalini Attri, Assistant Advocate General, Haryana, for the respondent-State. Kanwaljit Singh Ahluwalia, J. The present petition was filed by Atma Ram, Dalip Kumar, Ram Murti, Om Parkash, all sons of Hazari, Rameshwar son of Birbal and Krishna son of Mani Ram, all residents of village Mangali, District Hisar. Mr. Baldev Singh, learned Senior Advocate, appearing along with Mr. Arshvinder Singh, Advocate, has submitted that out of six petitioners, Dalip Kumar, Ram Murti and Krishan had died. A report was sough from the District & Sessions Judge, Hisar. It has been submitted to him by the Superintendent of Police, Hisar, through the Station House Office, Police Station Sadar, Hisar, that Dalip Criminal Revision No. 453 of 1993 2 Kumar, Ram Murti and Krishan had died. Therefore, the present revision petition qua them is dismissed having abated and therefore, the present revision petition is being adjudicated qua petitioners Atma Ram, Rameshwar and Om Parkash. In the present case FIR was lodged on the statement made by Ram Dhan. The statement is Ex.PE in which he has stated that he is resident of village Mangali Surtia. He is retired army personnel and do agricultural work and he had his turn of water at 4.47 P.M.. He had gone to the fields at about 9/10.00 A.M.. At that time he along with Ram Sarup son of Lakha Ram, Om Parkash son of Ram Rakh, Phusa son of Ram Partap and Rameshwar son of Chunni, residents of the village was cleaning the water course. At that time, accused Dalip Kumar armed with chhavi, Atma Ram armed with chhavi, Ram Murti, Om Parkash, Krishan and Rameshwar, all armed with Jailey came there. A lalkara was raised that the complainant party would not be allowed to clean the water course. In the meanwhile, an altercation ensued. Hot words were exchanged. The complainant who was armed with double barrel gun, which was loaded, before he could use, Rameshwar gave a blow with chhavi on his right leg below the knee. On receiving the blow, the complainant fell down. Double barrel gun was snatched by Rameshwar. While he was fallen, Dalip gave two blows of chhavi, one on the right eye and other on the right side of forehead. Krishan gave a blow on his nose. Om Parkash gave a jailey blow like a lathi on his right hand. It is further stated that while the loaded double barrel gun was snatched, trigger was pressed and two shots were fired. Rameshwar gave a chhavi blow to Kuldip on his head from back side. Ram Murti Criminal Revision No. 453 of 1993 3 gave two jailey blows like a lathi which hit on the hand and palm of Kuldip. Then Om Parkash gave a jailey blow like a lathi to Kuldip which hit on the thumb of his left hand. Krishan also gave a jailey blow like a lathi on the leg below the knee of Kuldip. Accused Ram Murti gave blow, to, Ram Sarup, which hit on his right hand and another blow on his right hand thumb by using jailey like lathi. Accused Om Parkash gave two jailey blows like a lathi to Ram Sarup, which hit on his left foot and chest. Krishan gave a jailey blow like a lathi on the head of Ram Sarup. It is submitted that Phusa Ram and Rameshwar, who were working with the complainant, on coming of the accused, ran away. It is further stated that Rameshwar took the rifle of the complainant and ran towards his house. In a jeep, he along with Om Parkash, Kuldip and Ram Sarup, was brought to the Civil Hospital, Hisar. The FIR was investigated. Report under Section 173 Cr.P.C.. was submitted. Petitioners were charged for constituting an unlawful assembly under Section 148 IPC. They were also charged for an offence under Section 326 read with Section 149 IPC for causing grievous injuries. They were also charged for an offence under Section 325 read with Section 149 IPC for causing injuries to Ram Dhan, Ram Sarup and Kuldeep. They were also charged with an offence under Section 324 read with Section 149 IPC for causing injuries to Ram Dhan and Kuldeep. They were also charged under Section 323 read with Section 149 IPC for causing injuries to Ram Dhan, Ram Sarup, Kuldeep and Om Parkash. Prosecution examined PW.1 Dr.D.R.Chugh who was working as Radiologist. He radiologically examined Kuldeep and found a fracture base of fifth metacarpal bone of left hand. He also found a fracture on Criminal Revision No. 453 of 1993 4 the shaft of right forearm. He also radiologically examined Ram Sarup son of Lakha Ram and found fracture of lower end of right radius bone. There was also fracture of sixth rib of left side arm. Om Parkash son of Ram Rakh was also examined but no fracture was found. Complainant Ram Dhan was also radiologically examined and fracture of nasal bone was found . PW.2 Sarni Ram and PW.3 Ram Parkash were formal witnesses. Injured Kuldip Singh appeared as PW.4, Om Parkash as PW.5, Ram Dhan complainant as PW.6, and Phusa Ram appeared as PW.7. Dr. S.K.Batta, appeared as PW.8 and found following injuries on the persons of injured:- “ Injuries on the person of Ram Dhan 1. An incised wound transversely placed on front of lower 1/4th of right leg size 5” X 1½” wide underlying bones were cut and muscles were also cut. Bones ends were projecting out. 2. An incised wound ½” X 1/10” above right eye brow obliquely placed. 3. An incised wound 1¼ “ X 1/8” X bone deep obliquely placed on right forehead 1½ “ above eye brow. 4. An incised wound 2” X 1/8” X bone deep on interior portion of occipital region on Criminal Revision No. 453 of 1993 5 right side. 5. Diffuse painful tender swelling on nose. 6. Pink diffuse swelling on right elbow on outer side ½” X ½”. Injuries on the person of Kuldeep 1. Diffuse painful swelling on middle of right forearm more on the radial side. X-ray right forearm was advised. 2. Diffuse painful swelling on dorsum of right hand more on the radial side. X-ray right hand was advised. 3. Diffuse painful swelling on dorsum of left hand. More on the ulnar side. X-ray left hand was advised. 4. An incised wound on right side of occipital region 1½ “ X. 1/8” X bone deep. X-ray skull advised. 5. Pink diffuse contusion ¾” X. ¾” on front of right knee. Injuries on the person of Ram Sarup 1. Diffused painful swelling on ulnar side of right forearm on lower part. X-ray right forearm advised. 2. Diffuse painful tender swelling on right thumb. X-ray advised. 3. A lacerated wound vertical shape 1¼ “ X Criminal Revision No. 453 of 1993 6 ½” muscle deep on front of middle of left leg. Clotted blood was present. 4. A pink contusion ½” X ½” on left side of chest near mid line. X-ray chest was advised. 5. A pink contusion 4” X ½” on right side of chest”. Injuries on the person of Om Parkash 1. An incised wound 1¼ “ X 1/8” X bone deep obliquely placed on occipital region. 2. An incised wound 1½” X 1/8” X bone deep on left side of scalp 4” above pinna of the left ear. 3. An abrasion red colour ¼” X ¼” on front of middle of the right leg”. Chunni Lal appeared as PW.9, and L.A. Kumar, Assistant Director, Forensic Science Laboratory, Madhuban, appeared as PW.10. The accused were examined under Section 313 Cr.P.C. and all incriminating evidence was put to them. The statement under Section 313 Cr.P.C. of accused and defence evidence of accused was noticed in para 5 of the judgment and the same reads as under:- “5. In their statement under Section 313 Cr.P.C. the accused have totally denied the prosecution allegations levelled against them and have taken the plea that it was the complainant who Criminal Revision No. 453 of 1993 7 picked up a quarrel with them and who started causing injuries to them while they were simply exercising their right of self-defence. The accused party has taken the defence that the complainant party used to cross their fields through the watercourse, to which the accused party objected, at this the complainant party got enraged, and they started causing injuries to them with deadly weapons. The accused party has also examined Ramphal, Ziledar, as DW1, Dr. R.P.Dahiya as DW2 and Shri Madan Lal as DW3. Ram Phal Ziledar has deposed that there was no water in the Mirka Minor on 4.1.81 but there was a minor leakage. Dr. R.P.Dahiya DW2 has deposed about the injuries found on the person of the accused. According to him eight injuries were found on the person of Atma Ram, two injuries were found on the person of Ram Murti while six injuries were found on the person of Dalip. But according to him all the injuries were of simple nature. Madan Lal, DW3, has also deposed that there was no water in the Mirkan Minor watercourse on 4.1.81 but he has admitted that there was minor leakage in it. No other witness was examined by the accused in their defence”. Learned trial Court stated that the Court has to determine as out of accused and complainant party, which party was aggressor. After Criminal Revision No. 453 of 1993 8 analysing the evidence, trial Court had come to the conclusion that the accused party was aggressor and convicted and sentenced them as under:- “...I, therefore, sentence the accused to undergo rigorous imprisonment for one year for the commission of offence punishable under Section 148 IPC, to undergo rigorous imprisonment of six months for the commission of offence punishable under Section 323 IPC; to undergo RI for one year for the commission of offence punishable under Section 324 IPC; to undergo RI for 2 years punishable under Section 325 IPC and to pay a fine of Rs.500/- each in default of payment of fine they shall undergo further RI for six months and to undergo RI for three years for the commission of offence punishable under Section 326 IPC and to pay a fine of Rs.500/- each. In default of payment of fine they shall undergo further RI for six months. All the sentences shall run concurrently. Since the complainant Ramdhan has been made permanently handicapped by the accused party, so an amount of Rs.5000- out of the total fine realised be paid to the injured Ramdhan as compensation” Aggrieved against the same, accused filed two appeals in the Court of learned Additional Sessions Judge, Hisar. One appeal was filed by Atma Ram and Ram Murti and the second appeal was filed by rest of Criminal Revision No. 453 of 1993 9 the accused. Learned lower Appellate Court posed the following questions:- “6. It is a case where both the sides were in receipt of injuries. If number of the injuries is said to be relevant for any purpose, they were 19 on the side of complainant and 16 on the side of the accused. From the facts narrated above, it is quite clear that neither the place of occurrence is in dispute nor the occurrence itself is disputed. The time of occurrence is also not in dispute. In such cases, it has to be found out as a fact as to which of the two were aggressors and which caused injuries in exercise of their rights of self-defence”. Learned lower Appellate Court affirmed the findings of trial Court and held that the accused party was aggressor and they had no right of self defence. Mr. Baldev Singh, learned senior counsel appearing for the appellants, stated that this is a case of free fight, therefore, the petitioners are responsible for their individual liability and the circumstances speak that Atma Ram had caused no injury. I have perused the evidence and the findings recorded by the two Courts below. In the revisional jurisdiction, I am hesitant to differ with the findings recorded by the two Courts below. They have appreciated the evidence and their findings regarding the fact that all the accused constituted an unlawful assembly and caused injuries to the complainant party cannot be differed with. Criminal Revision No. 453 of 1993 10 Mr. Baldev Singh, learned senior counsel for the petitioners stated that in the present case, occurrence had taken place on 4.1.1981. A period of more than 27 years is going to elapse. A perusal of the charge sheet revealed that at the time of framing of charge Atma Ram was aged 30 years, Rameshwar was also aged 30 years and Om Parkash was aged 18 years. In the last 27 years, petitioners have suffered not only protracted trial but have also fastened themselves with the added responsibilities of the family. Therefore, it will not be appropriate to send petitioners behind the bars. A perusal of record reveal that Atma Ram and Ramshwar, petitioners, were arrested on 11.1.1981. They were granted bail by the Court of learned Additional Sessions Judge, Hisar, on 12.5.1990. They had undergone about four months as undertrial. Taking into account protracted trial ;and the fact that the appellants had undergone four months of their actual sentence and have advanced in the age of last 27 years, ends of justice will be met fully in case their sentence is reduced to already undergone. However, sentence of fine is enhanced qua each petitioner to Rs.10,000/-. The amount of fine so recovered shall be disbursed to the injured proportionately. With these observations, present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge May 29, 2008 “DK”