Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1- Crl. Appeal No.D-574-DB of 2005 Date of Decision : 16. 09.2011 Raj Pal and others ... Appellants Versus State of Haryana .... Respondent 2- Crl.Revn. No.1029 of 2006 Date of Decision : 16.09.2011 Rattan Chand ... Revision petitioner/complainant Versus Ram Avtar and others .... Respondents - CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK ....... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Vinod Ghai, Advocate, for the appellants. Mr. Saurabh Mohunta, DAG,Haryana, for the respondent-State. Mr. Atul Lakhanpal, Sr. Advocate with Mr.Arjan Lakhanpal, Advocate for the revision petitioner/complainant. Mr. J.S. Bedi, Advocate for the respondents in revision-petition. Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --2-- -- Vijender Singh Malik, J. Raj Pal, Dharambir and Mahabir, appellants have preferred Criminal Appeal No. 574-DB of 2005 challenging the judgment of their conviction dated 30.07.2005 whereby they have been held guilty for an offence punishable under sections 148, 302, 325 read with section 149 of the Indian Penal Code by learned Additional Sessions Judge, Bhiwani and the order of sentence dated 02.08.2005, vide which the following sentences have been awarded to them :- Name of the accused(now appellants) The offence for which conviction was recorded. Sentence awarded Raj Pal, Dharambir and Mahabir U/S.148 IPC Rigorous imprisonment for one year each. Raj Pal, Dharambir and Mahabir U/S 302/149 IPC Life imprisonment and fine of Rs.2000/- each. Raj Pal, Dharambir and Mahabir U/S 325/149 IPC Rigorous imprisonment for two years each. Fine of Rs.500/- each. In default of payment of fine to undergo rigorous imprisonment for four months each. The substantive sentences were ordered to run concurrently. Rattan Singh, complainant has brought Criminal Revision No. 1029 of 2006 challenging the acquittal of Ram Avtar, Randhir and Devender in the said case, vide the aforesaid judgment. The case set up against the appellants Rajpal, Dharambir and Mahabir and respondents Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --3-- Ram Avtar, Randhir and Devender by Police Station, City Bhiwani is as under:- On 21.05.2001 at about 7.30 AM, Jaibir son of Ram Sarup, cousin brother of Rattan Singh, complainant was coming from the fields to the village on his motorcycle with his children. Bhupinder son of Rajender and Rajesh son of Randhir were going to their fields on their tractors at that time. As Bhupinder and Rajesh caused obstruction in the way of the motorcycle, there took place a verbal duel between them. Thereafter, Jaibir came to the village on his motorcycle and Bhupinder went to the fields on his tractor. Rajesh, however, returned to the village with his tractor. After sometime, Bhupinder came from the fields and Rajesh came from the village. They had many persons with them on their tractors. They came to the house of the complainant and started quarreling with the complainant and others. They caused injuries to Dalbir, brother of the complainant as also to Kamla d/o Ram Sarup, Shanti w/o Dalbir and Jaibir s/o Ram Sarup. In defence, the complainant and others had also caused injuries to the other party. Then Rattan Singh, complainant alongwith Dalbir, Kamla, Shanti, Jaibir and Suraj Bhan s/o Zile Singh and Meer Singh s/o Sheokaran, came to General Hospital, Bhiwani. At about 7.30 PM, on the same day, Dalbir asked him to be taken to the toilet. The complainant alongwith Jaibir and Suraj Bhan brought him to the gate of emergency. In the meanwhile, Dharambir son of Ude Chand, Mahavir son of Hukam Chand, Devender son of Shish Ram, Randhir son of Shish Pal, Ram Avtar son of Shish Pal Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --4-- and Rajpal son of Subhash, residents of Ladawas alongwith 7 or 8 unknown persons came there with lathis and iron rods. They came there from the back side of the hospital. They raised lalkara for attacking the complainant and others and teaching them a lesson for the quarrel that took place in the day. At this, Dharambir gave a blow with lathi held by him on the right eye of Dalbir, Devender and Ram Avtar gave lathi blows on the head of Dalbir, Randhir gave a blow with iron rod on the left ear of Dalbir, Rajpal gave a lathi blow to Dalbir and Mahabir gave a blow with iron rod to Dalbir, which had hit him on his left leg just above the ankle joint. Seeing Dalbir under attack, Suraj Bhan alongwith the complainant and others tried to rescue him. However, Dharambir gave a lathi blow to Suraj Bhan on his nose. Mahabir gave a blow with iron rod on left eyebrow of Suraj Bhan. Rajpal gave a lathi blow on the face of Suraj Bhan, on account of which, he lost his teeth. They raised alarm, on account of which, the assailants left the place with their respective weapons. The complainant with the help of Suraj Bhan and Jaibir picked up Dalbir and shifted him to emergency, where the doctor told them that Dalbir had died. Hearing the commotion, Surender son of Dalbir, resident of Ladawas also came there and saw the occurrence. Om Parkash, SI posted at Police Station City Bhiwani, received a wireless message at Krishna Colony Chowk. Receiving the message, he went to the emergency ward of General Hospital, Bhiwani, where Niranjan Singh, EHC had handed over a ruqa to him regarding death of Dalbir. Another ruqa and MLR of Suraj Bhan were also handed Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --5-- over to him by the doctor there. Om Parkash, SI recorded the statement of Rattan Singh and making his endorsement thereon, had sent the same to Police Station, City Bhiwani through Neki Ram, Constable, on which Nand Lal, SI recorded the formal FIR. He then conducted inquest proceedings regarding the death of Dalbir. He also recorded the statement of Surender. He made an application to the doctor about the fitness of Suraj Bhan and his statement was recorded under section 161 of the Code of Criminal Procedure on 22.5.2001 on the doctor declaring him fit to make statement. Photographer had been summoned from Police Lines Bhiwani. The place of occurrence was got photographed. Inspecting the place of occurrence, a rough site plan thereof was prepared. Om Parkash, SI took into possession blood stained earth from the place of occurrence and took the same into possession after converting the same into a sealed parcel. Statements of the witnesses were recorded. The dead body of Dalbir was handed over to Neki Ram, Constable and Zile Singh, Head Constable for post-mortem examination. Dr. R.P. Sharma, PW-3 conducted post-mortem examination on the dead body of Dalbir on 22.5.2001. He noticed eight injuries on the person of the deceased, apart from the internal injuries found by him. In his opinion, the cause of death was shock and haemorrhage, as a result of head injuries, which were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The doctor had handed over a parcel containing clothing of the deceased, which was taken into possession by Om Parkash, SI. Reaching the police station, the case Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --6-- property was handed over to the MHC. The investigation was thereafter entrusted to Ram Mehar Inspector, who had arrested Rajpal, Dharambir, Mahabir, Ram Avtar, Randhir and Devender, accused on 30.05.2001. The accused were interrogated and they disclosed about keeping concealed the weapons of offence. Their disclosure statements were recorded and in pursuance of those statements, they got recovered the different weapons, which were taken into possession separately after preparing sketches thereof and giving them the shape of sealed parcels. The investigation then remained with Partap Singh, S.I. also. He had recorded the statements of some witnesses. He had obtained opinion of the doctor regarding the injuries of Suraj Bhan. The doctor had opined that Suraj Bhan had suffered fracture of nasal bone, which was declared grievous. On this opinion, section 325 of the Indian Penal Code was added to the case. On completion of investigation, challan against the accused was prepared. Charge against the accused was framed for an offence punishable under sections 148, 302, 325 read with section 149 of the Indian Penal Code, vide order dated 24.08.2001. The accused pleaded not guilty to the charge and claimed trial. The prosecution has examined fourteen witnesses in all at the trial. Giving up some witnesses as unnecessary while tendering reports of Forensic Science Laboratory, the prosecution evidence came to a close. The accused were examined thereafter in terms of section 313 of the Code of Criminal Procedure. They have denied the truth of the Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --7-- prosecution evidence put to them in the shape of questions. Rajpal accused has claimed himself to be innocent and to have been falsely involved in this case at the instance of the complainant party due to party rivalry in the village. According to him, no such occurrence as alleged by the prosecution had taken place at the time and place given by the complainant. Same is the stand of the other accused. Accused Mahabir tendered in evidence a copy of order dated 30.01.2002 passed by this court in Criminal Miscellaneous No. 48544 of 2001 and closed his evidence. The other accused did not lead any evidence in their defence and closed the same. Hearing learned public prosecutor for the State, assisted by learned counsel for the complainant, and learned counsel representing the accused, learned trial court held the appellants Rajpal, Dharambir and Mahabir guilty for the offence punishable under sections 148, 302, 325 read with section 149 of the Indian Penal Code vide judgment dated 30.07.2005. Learned trial court, however, found the prosecution to have failed to bring home the guilt of Ram Avtar, Randhir and Devender, accused beyond reasonable doubt and, therefore, they were acquitted of the charge. Hearing on quantum of sentence was given on 02.08.2005 and the sentence detailed as above had been awarded to the appellants. Aggrieved by the aforesaid judgment of their conviction and the order of sentence passed by learned trial court, the appellants/convicts have brought this appeal while Rattan Singh, Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --8-- complainant has brought the above mentioned revision petition. We have heard Mr.Vinod Ghai, Advocate for the appellants, Mr.Saurabh Mohunta, DAG, Haryana, for the respondent-State, Mr. Atul Lakhanpal, Sr. Advocate with Mr. Arjan Lakhanpal, Advocate for the complainant/revision-petitioner, and Mr. J.S. Bedi, Advocate for the respondents of the revision-petition and have gone through the record of the case with their assistance. After giving us the facts at length, learned counsel for the appellants has submitted that post-mortem examination conducted by Dr. R.P. Sharma, PW-3 revealed eight injuries on the person of deceased Dalbir. According to him, as is evident from the facts of this case, the occurrence alleged to have taken place at 7.30 PM on 21.05.2001 at General Hospital, Bhiwani, is stated to be a consequence of the earlier occurrence that took place in the day. He has submitted that at about 3.30 PM on 21.5.2001 Dr. J.B. Sharma, PW-4 conducted medicolegal examination of Dalbir and had noticed five injuries on his person. He has submitted that in the occurrence that took place at 7.30 PM, one injury each on the head of Dalbir has been attributed to Devender and Ram Avtar, accused. He has submitted that the injury on the left foot has been attributed to Mahabir, on right eyebrow to Dharambir while on the left ear to Randhir. He has submitted that the version contained in the FIR is silent about the seat of injury alleged to have been caused by Rajpal to Dalbir. He has submitted that it is only stated therein that Rajpal also caused injury to Dalbir. Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --9-- Attempting a comparative study of the injuries noticed in the MLR prepared at 3.30 PM on 21.5.201 by Dr. J.B. Sharma, Ex.PG and the injuries noticed by Dr. R.P. Sharma, on the dead body of Dalbir, PW-3, vide post-mortem report Ex.PB, learned counsel for the appellants has submitted that the two injuries on the head are also there in the MLR as injuries no. 1 and 2. According to him, the injuries mentioned at Sr. Nos.6 to 8 in the post-mortem report are there in the MLR as injuries no. 3 to 5. According to him, only three injuries i.e. injuries no. 3 to 5 are left which can be said to have been suffered by Dalbir after the occurrence of the day on 21.5.2001 had taken place. He has submitted that injury no.3 is bleeding present from nostril, left ear and mouth and this bleeding could be a result of injuries no. 1 and 2 and it cannot be said to be an independent injury. He has submitted that injury no.4 is swelling present in left occipito parietal region. He has submitted that this swelling could also be a consequence of injuries no. 1 and 2. He has submitted that injury no.5 is another swelling present in right eyebrow. According to him, there was no external mark for injury no.5. Learned counsel for the appellants has referred us to the statement of Dr.R.P. Sharma, PW-3 in his cross-examination where he has stated that except swelling no mark of injury was found on the right eye-brow. He has submitted that this swelling could also the result of injuries no. 1 and 2. He has submitted that the frontal bone which was Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --10-- found to be fractured is a very thin bone and it could be fractured merely on fall of Dalbir on receipt of other injuries. He has , thus, submitted that the occurrence alleged to have been taken place at 7.30 PM on 21.5.2001 is just a concoction and no conviction could be ordered with regard to that occurrence of any one. According to him, for the occurrence of day, another case with FIR No.79 dated 21.5.2001 was registered at Police Station Badhra, District Bhiwani for an offence punishable inter-alia under sections 147, 148, 149, 323, 324, 452, 325 and 506 of the Indian Penal Code. He has submitted that for the injuries suffered by Dalbir in the occurrence of the day, the appellants could not be held guilty on the false allegations that they have been caused in the occurrence that commenced at 7.30 PM on the same day. Arguing for the State, Mr. Sourabh Mohunta, learned Deputy Advocate General, Haryana, has submitted that Dalbir died on account of the injury caused by Dharambir on the right eyebrow, which led to fracture of frontal bone. According to him, had this injury not been caused, Dalbir could not have died in consequence of the injuries suffered in the day. He has submitted that the injury noticed at No.5 in the post-mortem report is a real injury and the fracture of the frontal bone, underlying the right eyebrow, cannot be a result of fall on the ground because the frontal bone is a very strong bone. According to him, appearance of external mark of injury for every blow is not a rule. According to him, sometimes external mark of injury does not appear and the impact of the blow is transmitted straight to the bone. Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --11-- Mr. Atul Lakhanpal, learned Senior counsel has also supported the submission of learned Deputy Advocate General in this regard. He has submitted that injury no.5 had caused corresponding fracture of frontal bone and that no external injury was necessary to appear at the skin covering the frontal bone. Injury no.1 on the dead body of Dalbir is described as a stitched wound, 6 cms in length, present in left occipito parietal region. Injury no.2 in the post-mortem report is another stitched wound on left parietal region. They are admitted by Dr. R.P. Sharma, PW-3 in his cross-examination to correspond to injuries no. 1 and 2 found by Dr. J.B. Sharma, PW-4 in the MLR Ex.PG. There is no evidence to the contrary to show that two blows each could have made those injuries or that another blow could have landed on the site of the previous injury and could not have caused any difference in the look of the same. Another important aspect, which can not be overlooked is that injury nos. 1 and 2 noticed in the MLR had been stitched soon after the examination of Dalbir. What Dr.J.B. Sharma, PW-4 states in this regard in the opening lines of his cross-examination is relevant. He says that injuries no. 1 and 2 described in MLR of Dalbir were stitched immediately after the MLR and this fact had been mentioned in the bed head ticket Ex.PH. If blows would have been given on the stitched wounds, it was not possible that they would have fallen in the same direction causing wounds of the same length and would not have caused distortions in the wounds. Such deformities have not been noticed by Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --12-- Dr. R.P. Sharma, PW-3.This circumstance is sufficient to infer that no fresh injury attributed to Devender and Ram Avtar had been caused to Dalbir in the occurrence that took place at 7.30 PM in the evening of 21.5.2001. Similarly injuries no. 3 to 5 mentioned in the MLR conducted by Dr. J.B. Sharma on Dalbir correspond to injuries no. 6 to 8 of the post-mortem report. Injuries that are left in the post-mortem report which have no corresponding injuries in the MLR are injuries no.3 to 5. Out of these three injuries, presence of bleeding per nostril, left ear and mouth mentioned at no.3, is not an injury. It is result of injuries no. 1 and 2 suffered on the head by Dalbir. The corresponding fractures and damage to the underlying tissues are causes of this bleeding. Swelling appears after sometime of the receipt of the injuries. There was no such swelling as is mentioned as injury no.4 in the post-mortem report when Dalbir was re-admitted after the second occurrence. Dr. J.B. Sharma, PW-4 had examined Dalbir again after the second occurrence and as is admitted by him, he did not find any fresh injury when he admitted him again. Even the measurement of this swelling is not given. This swelling is moreover stated to be in left occipito parietal region, the seat of injury no.1 of the post-mortem report. Although, the swelling found on the right eyebrow could also not be said to have been there when Dalbir was re-admitted after the second occurrence of 21.5.2001 as is stated by Dr. J.B. Sharma, PW-4, Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --13-- swelling appears after sometime of the receipt of injury and it might have appeared after the second examination of Dalbir by Dr. J.B. Sharma. No text on medical jurisprudence is brought to our notice to claim that every injury resulting in fracture of the underlying bone would leave an external mark. Much would depend on the nature of the weapon, condition of its surface and ends as well as the manner of giving of the blow. Therefore, injury no.5 cannot be said to have been imaginary injury. Learned counsel for the appellants has also failed to bring to our notice any text or precedent to support his submission that frontal bone is a very thin or fragile bone, which could be fractured simply on fall with forehead touching the ground. This injury, therefore, cannot be described away as contre-coup injury as has been argued by learned counsel for the appellants. Therefore, it can be safely concluded that injury no.5 is real injury and this injury was sufficient to cause death in ordinary course of nature. However, this is the injury attributed to Dharambir, appellant. What the witnesses say about the role of the other two appellants named Rajpal and Mahabir is to be examined from the statements of Rattan Singh,PW-1 and Suraj Bhan, PW-2 , the only two eye witnesses of the occurrence examined at the trial. Rattan Singh, PW-1 has stated that the six accused facing trial alongwith 6 or 7 other persons appeared in the hospital. According to him, Dharambir gave a lathi blow on right eye of Dalbir. He has added that Ram Avtar gave a lathi blow on the head of Dalbir and Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --14-- Devender also gave a lathi blow on the head of Dalbir. Randhir is then stated to have given an iron rod blow on the left ear of Dalbir. Mahabir is stated to have given a blow with iron rod on the rear portion of left ankle of Dalbir and Rajpal is stated, now in improvement of the version from the FIR, to have given a lathi blow on the back of Dalbir. Suraj Bhan, PW-2 has also suffered injuries himself. He has stated that Dharambir gave a lathi blow on the right eye of Dalbir. Devender gave a lathi blow on the head of Dalbir. Ram Avtar gave a lathi blow on the head of Dalbir. Randhir gave a blow with iron rod on the left ear of Dalbir, Rajpal gave a lathi blow on the back of Dalbir. Mahabir gave an iron rod blow on the back side of left ankle of Dalbir. FIR is not an encyclopedia of an occurrence. The first informant is not required to give each detail to its minutes end. The complainant may fail to mention the receipt of injuries caused by one of the assailants in the FIR particularly when the attack is by several persons. In these circumstances, no serious note may be taken of the failure of Rattan Singh to have described the seat of injury on the person of Dalbir caused by Rajpal. However, looking to the medical evidence, coming in the statement of Dr. R.P. Sharma, PW-3, who had examined the dead body of Dalbir, no injury was found on the back of Dalbir. Similarly, Mahabir is stated to have given a saria blow on the back side of left ankle of Dalbir. There is no such injury found on the back side of left ankle of Dalbir. Injury no.7 found by Dr. R.P. Sharma, PW-3 in the post-mortem examination of Dalbir is moreover a diffused swelling with Crl. Appeal No.D-574-DB of 2005 & Crl.Revn. No. 1029 of 2006 --15-- underlying contusion in the right calf region and not on the left calf region. Even if this injury would have been on the left calf region, the calf region cannot be taken as the back side of left ankle. Therefore, the injury alleged to have been caused by Mahabir was also not found by Dr. R.B. Sharma in the post-mortem examination of Dalbir. Coming to the injuries of Suraj Bhan, he has said that Rajpal gave a lathi blow on his face, which resulted in falling of his two teeth. . According to him, Dharambir gave a lathi blow on his nose, while Mahabir gave a saria blow on his left eyebrow and Ram Avtar gave a lathi blow on the left side of his chest. The description of the blows suffered by Suraj Bhan appearing in the statement of Rattan Singh, PW-1 is that Dharambir gave a lathi blow on the nose of Suraj Bhan. Mahabir gave a saria blow on the left eye of Suraj Bhan. Rajpal gave a lathi