Criminal Appeal No. 827-SB of 1997 1 In the High Court of Punjab and Haryana, Chandigarh. Criminal Appeal No. 827-SB of 1997 Date of Decision: 23.5.2008. Kishore alias Nand Kishore …Appellant Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.S.Bhatia and Mr. Naresh Katyal, Advocates for the appellant. Mr. Sunil Nehra, Assistant Advocate General, Haryana, for the respondent-State. Kanwaljit Singh Ahluwalia, J. The present appeal has been filed by Kishore alias Nand Kishore son of Roop Singh, resident of village Karnera, Tehsil Ballabhgarh, District Faridabad. He has been convicted by the Court of learned Sessions Judge, Faridabad, under Section 304 Part-II IPC and has been sentenced to seven years rigorous imprisonment. Appellant was nominated as accused in case FIR No. 241 dated 24.10.1992 registered at Police Station Sadar, Ballabhgarh, under Sections 148, 149, 302 & 323 IPC along with nine other persons. Learned Sessions Judge held that the prosecution has failed to bring home the guilty of accused Roop Singh, Ram Singh, Chattar Criminal Appeal No. 827-SB of 1997 2 Singh, Vijay, Devi Ram, Rughan, Hatia, Bhagwan Dass and Parkash and they were acquitted. No appeal against acquittal has been filed against the acquittal of acquitted accused. In the present case, FIR has been lodged at the instance of Daya Krishan son of Nand Lal, resident of village Karnera. He stated in the FIR that Ram Singh, Roop Singh, both sons of Udmi, caste Jhimar, residents of his village have been illegally cultivating the land of Gram Panchayat measuring 79 kanals 4 marlas. Panchayat of village had filed a suit in the Civil Court and it had succeeded. Ram Singh and others had obtained a stay from the High Court against the Panchayat. On 14.7.1992 at the instance of Panchayat stay was vacated in respect of land measuring 48 kanals 4 marlas. Panchayat gave this land on lease to Daya Nand son of Desh Raj Tyagi. Possession was decided by the Court in favour of the Panchayat and on receipt of the order of the Court, Sub Divisional Magistrate, Ballabhgarh, Lehna Singh, Block Development Officer, Hari Shankar, Patwari, and Ram Narain, Gram Secretary came to village Karnera in a Government Jeep No. HR-29- 01158 driven by driver Tej Pal and accompanied by Narain Singh, Assistant Sub Inspector, Mahender Singh, Head Constable, Lal Chand, Head Constable, Mange Ram Constable, Chander Bhan Constable and Sada Ram Constable for taking possession of the land. After delivery of possession of land under the orders of Sub Divisional Magistrate, Ballabhgarh, complainant party was returning back. Then at about 11.45 A.M. Devi Ram, Rughan, & Haria, all sons of Ram Singh, Chatro, Vijay Pal, Bhagwan Dass & Kishore, all sons of Roop Singh, Ram Singh & Criminal Appeal No. 827-SB of 1997 3 Roop Singh, both sons of Udmi Jhimar, residents of village Karnera and Parkash Jhimar resident of Fatehpur Tagga came from the jawar fields armed with lathies and encircled Rishi Raj son of Pat Ram, Ishwar son of Rewti Parshad, and Vijay Ram son of Kunka. At that time Ishwar son of Pat Ram, caste Tyagi, resident of village Karnera was also present. The accused with common intention caused injuries with lathies to Rishi Raj, Ishwar and Vijay Ram. Kishore son of Roop Singh gave lathi blows to Ishwar son of Pat Ram on his waist, shoulders and head. On noise raised by the complainant party to save, Tek Chand son of Hukam Singh and Hari Singh son of Ram Chander Tyagi of the village were attracted at the spot. On their intervention, the accused ran towards the fields. Injured were brought to the Government Hospital, Ballabhgarh for treatment. Ishwar, on the way to the hospital, expired due to serious injuries suffered. The above said FIR was investigated. Report under Section 173 Cr.P.C. was submitted. Case was committed and accused were charged on 8.1.1993 by learned Additional Sessions Judge, Faridabad. All the accused were charged that on 24.10.1992 at 11.45 A.M. they constituted unlawful assembly armed with deadly weapons and caused injuries to Vijay Kumar, Rishi Raj, Ishwar son of Rewti and Ishwar son of Pat Ram and they committed offence under Section 148 IPC. Accused Kishore son of Roop Singh was substantively charged under Section 302 IPC for having caused death of Ishwar son of Pat Ram, whereas other accused were charged with the aid of Section 149 IPC. Furthermore, all the accused were charged for causing simple Criminal Appeal No. 827-SB of 1997 4 hurt to Vijay Ram, Rishi Raj and Ishwar son of Rewti for offence under Section 323 read with Section 149 IPC. Prosecution examined Dr. A.K.Gupta, Medical Officer as PW.1. He deposed that he along with Dr. P.S.Yadav, jointly conducted autopsy on the dead body of Ishwar son of Pat Ram. He found the following injuries on the person of Ishwar son of Pat Ram:- “A contusion over scalp, reddish, over right parieto-occipital junction, 2.5 cm in diameter. On further dissection blood was present underneath skin of scalp. Contusion as described earlier was dissected. There was depressed fracture over the right parieto-occipital junction of skull bone and there was tear of the parietal layer of cerebrum where there was huge collection of haematoma extending upto base of brain.” As per opinion of doctors, cause of death was shock and hemorrhage due to due to injury to brain, which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. In cross-examination, PW.1 Dr. A.K.Gupta stated that he found no possible mark of injuries on the neck and back. The injury on the head was not linear but was circular. He further stated in the cross-examination that there is every possibility of this injury as having been inflicted as a result of strike by a brick bat. In normal course, such like injury is not possible by lathi blow. He further stated in cross-examination that there was every possibility that the Criminal Appeal No. 827-SB of 1997 5 injured having remained unattended for sufficient long time. PW.2 Dr. S.K.Sharma, Medical Officer, on 24.10.1992 at 12.05 noon, examined Vijay Ram son of Kunka, aged 60 years and found following injuries on his person:- “1) Lacerated wound 6 cm X ½ cm placed on the right parietal region. Fresh bleeding was present (Advised X-ray skull); 2) He complaint of pain on the lumber region – back side. There was, however, no external injury and there was also no loss of function. (Advised X-ray), 3) He also complained of pain in the anterior aspect of right elbow. No external injury was visible. Movements of right elbow were normal. (Advised X-ray)”. He opined that the injuries were caused with blunt weapon. On the same day at 1.25 P.M. he examined Rishi Ram and following injuries were found on his person:- “1) Bruise size 9 cm X 2 cm placed on the entrolateral aspect of lower half of right thigh. It was red in colour (Advised X-ray). 2) Bruise size 3.5 cm X 2 cm placed on the superior aspect of left shoulder. It was red in colour (Advised X-ray)”. Regarding these injuries, he also opined that they were caused by blunt weapon. Thereafter on 24.10.1992 at 1.40 P.M., he Criminal Appeal No. 827-SB of 1997 6 examined Ishwar son of Rewti and found following injuries on his person:- “1) Abrasion with swelling size 6.5 cm X 1 cm placed on the posterior aspect of middle one third of left forearm. Reddish in colour. (Advised X-ray). 2) Abrasion size 1.5 cm X 1 cm placed on the lateral aspect of distal half of left middle finger. Red in colour. (Advised X- ray). 3) He complaint of pain in the left leg. No mark of external injury was seen (Advised X-ray)”. Regarding these injuries, he also opined that they were caused by blunt weapon. In cross-examination, PW.2 Dr. S.K.Sharma stated that all the injured persons were fully conscious. Abrasions are superficial injuries and can be inflicted in the normal course during agricultural pursuits. Learned Public Prosecutor tendered affidavits of Lal Chand Constable as Ex.PG, Sada Ram Constable as Ex.PH and Mam Chand Constable as PJ. Their affidavits were tendered to prove link evidence. PW.3 Hukam Singh was Halqa Patwari who had prepared the site plan Ex.PK. PW.4 Lehna Singh was Block Development and Panchayat Officer, who had gone on the day of occurrence to village Karnera for delivery of possession. He stated that on 24.10.1992, proceedings Criminal Appeal No. 827-SB of 1997 7 regarding delivery of possession of land in village Karnera to the Sarpanch of Gram Panchayat were conducted under his supervision and the proceedings were conducted under the directions of Sub Divisional Magistrate, Ballabhgarh. He further stated that when the officials had just left the place after delivery of possession, the members of accused party headed by Roop Singh and Ram Singh attacked upon Ishwar Singh son of Rewti, Ishwar son of Pat Ram, Rishi son of Pat Ram and Vijay. They had inflicted injuries to them. The injured persons were removed to the hospital at Ballabhgarh after necessary arrangements were made. He further requisitioned police aid, he had addressed communication dated 23.10.1992 to the Station House Officer, Police Station, Ballabhgarh, which is Ex.PL. He admitted in cross-examination that no warrants of possession was issued by any Court or by some other authority in this matter. He further admitted that no proceedings were recorded at the spot by him or by some other officials. In cross-examination he further stated that they reached the village at 9.00 A.M.. They remained at the spot till about 12.00 Noon. They were still present in that very field when the quarrel had ensued. He further stated that till the proceedings regarding delivery of possession, he along with some persons of that village remained present. He further stated that occurrence lasted for about ten minutes. No official had sustained injuries in the occurrence. The police officials had not physically intervened but they asked the assailants not to assault. He denied the suggestion that there was a huge crowd at the place and there were several tractors at the place of occurrence. Daya Krishan, complainant, appeared as PW.5. He reiterated Criminal Appeal No. 827-SB of 1997 8 the facts revealed in the FIR and further stated that proceedings regarding delivery of possession of that land were taken by the officials and Ishwar son of Pat Ram had ploughed the land with the help of tractor on behalf of Panchayat as part of the execution proceedings. He has further stated that at 11.45 A.M. when the officials were about to leave the field then Ram Singh accused and other members of his family attacked upon the persons present there in connection with the proceedings regarding delivery of possession. He stated that Kishore, accused, had inflicted injuries with lathi to Ishwar son of Pat Ram on his back, shoulder, head and other parts of his body. They had raised alarm. He has further stated that the hospital authorities had informed the police and then Narain Singh, Assistant Sub Inspector, of Police Station Ballabhgarh came to the hospital. He recorded his statement Ex.PM on basis of which FIR had been recorded. In cross-examination, he stated that he, deceased Ishwar son of Pat Ram and the injured belong to Tyagi community, whereas accused belong to Jhimar community. He further stated that accused were in possession of the land for more than 20 years. In cross-examination, he stated that he had not seen the warrants of possession. He stated that his signatures were not obtained on proceedings recorded by the Block Development & Panchayat Officer. He further stated that Hukam Singh, Revenue Patwari of the village, was not present at that time. In cross- examination he admitted that Narain Singh, Assistant Sub Inspector, who recorded his statement in the hospital was present at the time of delivery of possession and he had not recorded the statement of witnesses at the spot. In cross-examination, he further stated that no Criminal Appeal No. 827-SB of 1997 9 other person except Kishore had attacked upon Ishwar son of Pat Ram. He further stated that Rishi Raj, Ishwar son of Rewti and Vijay Ram were inflicted injuries when they intervened to rescue Ishwar son of Pat Ram and Kishore had opened the attack on Ishwar son of Pat Ram. Rishi Ram injured appeared as PW.6. He stated that when the proceedings regarding delivery of possession had taken place, all the accused opened an assault. He was caused lathi blow by Roop Chand accused and another blow was given to him by Rughan accused. He corroborated Daya Krishan PW.5 on other aspects of prosecution case. To similar effect is the statement of another injured Ishwar son of Rewti PW.7. Tek Chand, PW.8, appeared as independent witness. He stated that accused persons were hiding themselves in the jawar fields and they suddenly appeared, after, Ishwar had ploughed the tractor for short while. On the rest of matter, he corroborated the prosecution witnesses. Rajender Singh, Ex-Sarpanch, appeared as PW.9. He stated that Panchayat had filed a suit and families of Ram Singh and Roop Singh were not in authorized possession. Daya Nand son of Desh Raj appeared as PW.10 and stated that he had taken on lease the land of Panchayat and copy of resolution passed by Panchayat on 25.5.1992 is Ex.PN. Rest of the witnesses had been given up as unnecessary. Niadar Singh, Inspector, appeared as PW.11. He has stated that he had partly investigated the case and on his interrogation on Criminal Appeal No. 827-SB of 1997 10 29.10.1992 Roop Singh, Kishore, Devi Ram, Rughan accused, got recovered lathi each at their instance. Narain Singh, Assistant Sub Inspector, PW.12 is the Investigating Officer. He gave the details of the investigation. In cross- examination, he admitted that he was present at the spot and rendered assistance to the Block Development & Panchayat Officer under the written orders of Sub Divisional Magistrate. He admitted that he was armed with service revolver, whereas three Constables were armed with Rifles. He has further stated that the police party did not think proper to make use of fire arm in order to prevent the crime of murder but they had physically intervened to pacify the situation. He stated that some crop either of Jawar or Sarson was standing at the land. He further stated that ruqa Ex.PF was handed over to him by the doctor in the premises of hospital. He admitted that the factum of his presence was not recorded in the ruqa Ex.PF. He denied that he had gone at the spot to forcibly take possession for which he was not authorized. Thereafter, prosecution concluded its evidence. Statements of accused under Section 313 Cr.P.C. were recorded and all incriminating evidence was put to them. Roop Singh, acquitted accused, in his statement recorded under Section 313 Cr.P.C. Stated as under:- “It is a false case. In fact, the complainant party had gone to the village to take forcible possession of the land which had been in the lawful possession of our family for the past over 50 years and in respect of which litigation is pending in the Criminal Appeal No. 827-SB of 1997 11 Hon'ble High Court even now. No warrant of possession had been issued by any authority. No revenue official accompanied them. No Munadi was made in the village. We were not called. A large number of persons had gathered there to grab the land. They had also brought tractors. There was a fight between them. The police ran away from the spot. The entire version has been concocted to implicate us. The witnesses are related to each other”. The present appellant stated that it is a false case. He is innocent and he was illegally detained by the police and had been involved in this case. Roop Singh, after his statement under Section 313 Cr.P.C. was recorded, tendered in evidence DA copy of pedigree table, Ex.DB copy of mutation of succession of Gopal, Ex.DC copy of mutation of succession of deceased Ishwar, Ex.DD copy of jamabandi for the period 1993-94, Ex.DE copy of application of surrender dated 29.12.1992 moved by Devi Ram & others, Ex.DF copy of application dated 29.10.1992 for surrender moved by Hatia & Others, Ex.DG copy of remand request dated 30.10.1992, Ex.DH copy of another remand request dated 30.10.1992, Mark DJ report of Patwari and Mark DK photocopy of certified copy of telegram and closed his defence evidence. Learned Sessions Judge held that the accused party was in a peaceful possession of the land, which came in existence for more than Criminal Appeal No. 827-SB of 1997 12 50 years. It was further held that orders of the High Court have not been proved or exhibited. However, from the photocopy on the file, from the orders of High Court, it was observed therein on 14.7.1992 the Panchayat had taken possession of the land measuring 48 kanals 4 marlas on 24.4.1992. This fact is also evident from the entry of Daily Diary of the Patwari. Learned Sessions Judge has further held that it is not the case of the prosecution that Panchayat had taken possession of the land measuring 48 kanals 4 marlas on 22.4.1992 and the accused had re-taken the possession. It was further stated by learned Sessions Judge that Daya Nand son of Desh Ram, PW.10, was given land on lease on 25.5.1992 vide resolution Ex.PM. PW.10 Daya Nand admitted in cross-examination that he was not delivered possession of the land by Panchayat and he was not associated in any proceedings of Panchayat regarding delivery of possession. It was further held that PW.5 Daya Krishan admitted that PW.10 Daya Nand had not agreed to take possession of the land and as such Ishwar son of Pat Ram was asked to take possession of the land on behalf of Panchayat. After holding a detailed discussion in para 23, learned Sessions Judge held as under:- “...Thus it can be safely concluded that there was no order for the delivery of possession and no warrant of possession was issued and further no notice was issued to the persons who were already in settled possession to vacate the land and further no proclamation by beat of drum was made in the village or at the spot that possession of 48 kanals 4 Criminal Appeal No. 827-SB of 1997 13 marlas would be delivered to the Panchayat or such and such date and at such time. It is admitted by PW12 A.S.I. Narain Singh that some crop either of Jawar or Sarsoon was standing on that land at that time. There is no evidence that any compensation of that land was assessed before delivery of possession to the representatives of the Panchayat. Instead of it, the crop was destroyed by running a tractor over it. If there had been warrant of possession issued by the competent authority then the Patwari Halqa Hukam Singh would have made entry in the roznamcha and would have accompanied the other officials to the spot for recording proceedings for delivery of possession. Panchayat Secretary or Hari Shankar Patwari of a different Halqa cannot be termed as revenue officials for the purpose of delivery of possession. Thus, the act of PW4 Lehna Singh, PW5 Daya Kishan and PW12 A.S.I. Narain Singh in helping the Panchayat in getting delivered possession of the land measuring 48 kanals 4 marlas forcibly from the accused to the representative of the Panchayat was illegal and the accused were justified in protecting their lawful possession or resisting the attempt made by the aforesaid officials to take forcible possession”. Criminal Appeal No. 827-SB of 1997 14 This Court has also perused the evidence and the documents with the aid of learned counsel for the appellant and learned counsel for the State. There is no hesitation on my part to accept the findings of learned Sessions Judge that the accused were in the peaceful settled possession of land and without any authority of law their possession was being taken by the complainant party forcibly. The findings of learned Sessions Judge in this regard are just and appropriate. Learned Sessions Judge has also returned the following findings:- “...It is further alleged that when the proceedings regarding delivery of the possession were over then the accused emerged from the standing crop and attacked Ishwar son of Pat Ram, now deceased, and also Ishwar son of Revti, Vijay son of Kunka and Rishi Raj son of Pat Ram and inflicted injuries. If PW.12 A.S.I. Narain Singh was present as alleged then the police party must have fired in the air to scare away the assistants. The very fact that they were not present at the spot”. XXX XXX XXX XXX XXX XX “...The very fact that the injured were taken to the hospital in a tractor proves that the presence of the police at the spot is doubtful or they were totally insensitive to the situation which had developed at the spot. PW.12 ASI Narain Singh had recorded the statement of PW5 Daya Kishan Ex.PN in the Criminal Appeal No. 827-SB of 1997 15 premises of General Hospital at Ballabhgarh and he had gone there on receipt of ruqa from the Doctor. If he had been present at the spot, then he must have gone straight to the hospital and would have recorded the statement of PW5 Daya Kishan. These unexplained facts only show that PW12 ASI Narain Singh was not present or if he was present, then he did not intentionally intervene as he was present there illegally i.e. without any authority”. Learned Sessions Judge further held that the statement of PW.1 Dr. A.K.Gupta that the injuries were caused by a brick bad cannot be believed and he had not relied upon the statement of doctor on the ground that he was prevailed upon by the accused party. To conclude, learned Sessions Judge acquitted other accused holding that they had a right to cause simple injuries to the witnesses PW.5 Daya Kishan, PW.6 Rishi Ram, PW.7 Ishwar son of Rewti and Vijay, as they were justified in protecting their possession over the land in question. Learned Sessions Judge further held that since the appellant had caused injuries, which were fatal, is guilty of offence under Section 304 Part-II IPC. I have heard learned counsel for the appellant. He has stated that no implicit reliance can be placed on the testimony of the witnesses. They have withheld the origin and genesis of the occurrence and they are not the truthful witnesses and they belonged to opposite section as there were caste clash in the village. Learned State counsel has stated that the appellant had used Criminal Appeal No. 827-SB of 1997 16 more force in causing injury and, therefore, he was rightly convicted under Section 304 Part-II IPC. Having heard learned counsel for the parties, after perusing the evidence and record, I am convinced that learned Sessions Judge committed grave error in convicting and sentencing the appellant under Section 304 Part-II IPC. Once learned Sessions Judge had rightly come to the conclusion that the accused party was in settled possession of the land for the last 50 years and without any authority of law complainant party had made an attempt to unlawfully and forcibly take possession of the accused party, accused were justified in causing simple injuries to the witnesses and the deceased, how can for solitary fatal injury right of self-defence can be denied to the appellant? How can he be convicted under Section 304 Part-II IPC? It has come in the evidence that Ishwar son of Pat Ram deceased started ploughing the land with the tractor. Right of self-defence cannot be weighed in the golden scales. There is only one injury on the person of Ishwar son of Pat Ram to say that while exercising the right of self-defence, reaction will be measured and accused would have acted in some other fashion will be demanding