IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Criminal Appeal No. 203-DB of 2000 Dated of Decision:- April 17, 2009 Tayyab and others ....APPELLANTS VERSUS The State of Haryana ....RESPONDENT 2) Criminal Revision No.714 of 2000 Smt. Ahmedi ....PETITIONER VERSUS Tayyab and others ....RESPONDENTS 3) Criminal Appeal No. 590-DBA of 2000 State of Haryana ....APPELLANT VERSUS Hasham and others ....RESPONDENTS 2 Criminal Appeal No. 203-DB of 2000, Criminal Revision No.714 of 2000 & Criminal Appeal No. 590-DBA of 2000 CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Sh. R.S.Rai, Senior Advocate with Sh. Deepinder Brar, Advocate for the appellants. Sh. Kulvir Narwal, Addl. Advocate General Haryana assisted by Sudeep Singh Mann, Advocate ------ MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.203-DB of 2000, Criminal Revision No. 714 of 2000 and Criminal Appeal No.590-DBA of 2000 by a common order/judgment, as they arise of the same order. The learned Addl. Sessions Judge, Gurgaon vide his judgment/order dated 8.2.2000/12.2.2000 convicted Tayyab son of Chhutmal, Wahid son of Chhutmal and Rashid son of Chhutmal under Sections 302/34 IPC and sentenced them to undergo R.I. for life. They were also directed to pay a fine of Rs.1000/-, in default of payment of fine to further undergo R.I. for six months. The learned trial Court acquitted Hasham son of Rashid, Mauj Khan son of Dhan Singh and Majid son of Dhan Singh. State has filed Crl. Appeal No.590-DBA of 2000 against their acquittal. The case of the prosecution is unfolded by the statement Ex.PD of Smt. Ahmadi w/o Hanif. 3 Criminal Appeal No. 203-DB of 2000, Criminal Revision No.714 of 2000 & Criminal Appeal No. 590-DBA of 2000 Smt. Hanif stated, that she is a resident of Village Bhond and is a Member Panchayat. A dispute is going on about a vacant plot between her husband and Tayyab, Rashid and Wahid sons of Chhutmal. There is a Pipal tree in this plot. On 6.2.1997 at about 4.00 p.m., Ahmadi’s husband Hanif was cutting the branches of the Pipal tree with an axe. She was collecting the wood, which was falling from these branches. Tayyab, Rashid, Wahid sons of Chhutmal, Moj Khan, Majid sons of Dhan Singh and Hashim son of Rashid armed with lathis came there. Tayyab abused Hanif in the names of his mother and sister and said that they would not allow the Pipal tree to be cut. Hanif came down. Yasin and Isaq sons of Fateh Nasib and Mohru son of Shamsher were also present there. Tayyab snatched the axe from the hands of Hanif and gave him an injury on his head from the sharp side. As a result, Hanif fell down on the ground and thereafter Rashid, Wahid, Moj Khan, Majid and Hashim gave lathis blows on both the shoulders and buttocks of Hanif. Ahmadi along with Yashin, Mohru and Isaq intervened and rescued Hanif. Thereafter a tractor trolley was arranged and Hanif was taken to Civil Hospital, Ferozepur Jhirka. On the basis of this statement, FIR Ex.PD/2 was recorded on 6.2.1997 at 6.25 p.m. at Police Station Ferozepur Jhirka and the special report reached the Ilaqa Magistrate on the same day at 7.30 p.m. The prosecution to prove its case brought into the witness box, Dr. Santosh Jain PW1, HC Jag Ram PW2, Constable Phool Singh PW3, Dr. M.S.Ranga PW4, Naresh Kumar Draftsman PW5, Constable Phool Singh PW6, Jagminder Singh HC PW7, Constable Dharambir Singh PW8, 4 Criminal Appeal No. 203-DB of 2000, Criminal Revision No.714 of 2000 & Criminal Appeal No. 590-DBA of 2000 Constable Suresh Kumar PW9, Smt. Ahmadi PW10, Ishak PW11, Jagram HC PW12 and Bhoop Singh PW13. In defence, Dr. B.B.Aggarwal DW1, Neeraj Kumar Addl Ahlmad of SDJM, Ferozepur Jhirka DW2, Gian Chand DW3 and Kulbhushan Yadav, Store Keeper, Civil Hospital, Gurgaon DW4 were examined. Learned counsel for the appellants has argued, that the place of occurrence has been shifted and the prosecution has tried to suppress the genesis of the occurrence. The place of occurrence was under the Pipal tree. It has come in evidence of Smt. Ahmadi PW10, that the Pipal tree was in the land of Rashid. The pond (chhappar) on the side of the Pipal tree belonged to appellant Rashid. Appellants had a right to protect his property and it was in exercise of this right to protect his property, a fight ensued. Deceased Hanif had trespassed on the land of Rashid appellant. The motive for the commission of the offence was the Pipal tree. In fact appellants have been falsely implicated, so that the complainant party could take over the land on which the Pipal tree was standing. Injuries on the person of appellant Wahid, have not been explained by the prosecution. He had five injuries on his person. Learned counsel for the State has argued, that the place of occurrence was under the Pipal tree. It was on the common land and deceased had the right to take wood from it. Both the site plans, one prepared by Naresh Kumar PW5 Ex.PC and other site plan Ex.PE prepared by SI Bhoop Singh PW13 show the Pipal tree to be in the land of Hanif. 5 Criminal Appeal No. 203-DB of 2000, Criminal Revision No.714 of 2000 & Criminal Appeal No. 590-DBA of 2000 FIR Ex.PD/2 is prompt, wherein names of the appellants have been stated and weapons of offence have also been given, specific injuries have also been attributed. Learned trial Court has wrongly acquitted Hasham, Mauj Khan and Majid. Both the eye witnesses Ahmadi PW10 and Ishak PW11 have named them and the roles have been attributed to them. We have heard the learned counsel for the parties and perused the record with their assistance. The place of occurrence as to where the occurrence had taken place is very crucial in this case. Ahmadi PW10 has stated in her testimony, that occurrence had taken place under the Pipal tree on a vacant piece of plot. Her husband, deceased Hanif, was cutting the branches of the Pipal tree and she was collecting the branches. Accused Tayyab, Rashid, Wahid, Mauj Khan, Majid and Hasham came there. Tayyab snatched the axe from the hands of Hanif and hit him on his head. Others also gave lathis blows to Hanif, while he had fallen on the ground. Ahmadi PW10 has admitted in her cross-examination, that the Pipal tree is standing on the plot of accused Rashid. She has further admitted, that the chhappar (pond) of Rashid is in the plot where the Pipal tree is standing. She has also admitted, that the dispute between the appellants and the deceased was regarding the shamlat land of deceased Hanif and accused Rashid. It comes out from her statement, that deceased Hanif was injured by the appellants under the Pipal tree, which was on the land of appellant Rashid next to the chhappar (pond). 6 Criminal Appeal No. 203-DB of 2000, Criminal Revision No.714 of 2000 & Criminal Appeal No. 590-DBA of 2000 The Investigating Officer Bhoop Singh SI PW13 in his testimony before the Court has stated regarding this occurrence he recorded the statement of appellant (accused) Wahid and filed a separate challan under Section 325 IPC etc. against Jan Mohd., Farid Khan, Jalis Khan, Yasin and Samay Mohd., all belonging to the complainant party. He has further stated, that he reached Village Bhond at about 8.30 p.m. He prepared site plan Ex.PE on the information given to him by Ishak PW11. He has further stated, that points A, D and C in site plan Ex.PE are located in front of the chhappar of Wahid. Going through both the site plans, one prepared by Naresh Kumar PW5 Draftsman Ex.PC and the other site plan Ex.PE prepared by the Investigating Officer Bhoop Singh SI PW13, it comes out that the fight did not take place as has been put by the prosecution witnesses Ahmadi PW10 and Ishak PW11. The Pipal tree is at quite a distance from Points A, D and C in Site Plan Ex.PE. Site Plan Ex.PC is same as Site Plan Ex.PE. In fact the fight had taken place at Points A, D and C where appellant Wahid got injured and thereafter deceased Hanif was pulled into the house of appellant Tayyab and appellant Tayyab then gave him the axe blow. A suggestion has been put in this regard to Ahmadi PW10, wherein she has replied as under: - “It is wrong to suggest that the fight took place in the house of Wahid and Wahid was given injuries and in self defence accused Wahid had caused injuries to Hanif”. 7 Criminal Appeal No. 203-DB of 2000, Criminal Revision No.714 of 2000 & Criminal Appeal No. 590-DBA of 2000 Both appellants Tayyab and Wahid are the sons of Chhutmal. They live in the same house. From the evidence it is clear, that appellant Tayyab son of Chhutmal pulled Hanif into his house, which was very close by, there he gave him an axe blow on his head after snatching it from Hanif, which proved fatal. Appellants Wahid and Rashid have been roped in and did not have any role to play. Similarly Mauj Khan, Majid and Hasham the acquitted accused also did not have any role to play. Learned counsel for the appellants has rightly argued, that the injuries on the person of appellant Wahid have not been explained by the prosecution. He had five injuries on his person. Dr. B.B.Aggarwal DW1 after examining Wahid radiologically on 7.2.1997 found a fracture on the middle phalynx of middle finger and a fracture on distal phalynx of ring finger of the left hand. Sh. Neeraj Kumar, Additional Ahlmad of the Court of Sh. Balbir Singh, ADJM, Feorzepur Jhirka DW2 has brought the case file titled State Vs. Farid Khan etc. in FIR No.47, dated 6.2.1997 under Sections 325/323/34 IPC Police Station Ferozepur Jhirka. FIR Ex.PD/2 is also No.47, dated 6.2.1997 Police Station Ferozepur Jhirka. It is clear that both the cases i.e. FIR Ex.PD/2 and what has been stated by Neeraj Kumar DW2 arise out of the same occurrence. We have no hesitation in coming to the conclusion, that it is appellant Tayyab son of Chhutmal, who pulled Hanif into his house as already suggested to Ahmadi PW10 and it is thereafter that he gave an axe 8 Criminal Appeal No. 203-DB of 2000, Criminal Revision No.714 of 2000 & Criminal Appeal No. 590-DBA of 2000 blow on Hanif’s head, which proved fatal. The place of occurrence in fact is the house of appellant Tayyab. Appellants Wahid son of Chhutmal and Rashid son of Chhutmal have been falsely roped in. They are given the benefit of doubt and are acquitted of the charges. Crl.Appeal No.203-DB of 2000 qua appellant Tayyab is dismissed and Crl. Appeal No.203-DB of 2000 qua appellants Wahid and Rashid is allowed. Wahid and Rashid appellants are acquitted of the charges. Crl. Appeal No.590-DBA of 2000 filed by the State against the acquittal of Hasham son of Rashid, Mauj Khan son of Dhan Singh and Majid son of Dhan Singh is dismissed. Crl. Revision No. 714 of 2000 is also dismissed. (MEHTAB S.GILL) JUDGE (DAYA CHAUDHARY) April 17, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO