IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : August 29, 2011 Crl. A. No. 128-SB of 2008 Randhir and others ..... Appellants Versus State of Haryana .... Respondent Crl. A. No. 1-SB of 2008 Jiya Lal and others ..... Appellants Versus State of Haryana .... Respondent Crl. Revision No. 614 of 2008 Jangir Singh ..... Petitioner Versus State of Haryana and others .... Respondents CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL. Present:- Mr. Raj Mohan Singh, Advocate, for the appellants. (in Crl. A. No. 128-SB of 2008 and Crl. A. No. 1-SB of 2008). Mr. Kshitij Sharma, Assistant Advocate General, Haryana, for the respondent-State. Mr. J.P. Dhull, Advocate, for the petitioner. (in Crl. Revision No. 614 of 2008). 1. To be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest ? Yes. CRA No. 128-SB of 2008 and other connected cases -2- M. JEYAPAUL, J. (ORAL) Totally nine accused faced the trial for the offences under Sections 147, 148, 323, 302 and 506 read with Section 149 of the Indian Penal Code (in short 'IPC'). The trial Court having acquitted the accused Ram Niwas and accused Naresh alias Nishu convicted accused Randhir, Dilbag and Satpal for the offences under Sections 304 Part II and 506 IPC. The trial Court also convicted accused Jiya Lal, Balwan Singh, Satyawan and Gurdev for the offences under Sections 323 and 506 IPC. Accused Randhir, Dilbag and Satpal have preferred Crl. Appeal No. 128-SB of 2008 and the other accused who were convicted under Sections 323 and 506 IPC have preferred Crl. Appeal No. 1-SB of 2008. Sunil is the person who succumbed to the injuries sustained by him in the occurrence. His father Jangir Singh has come forward with Crl. Revision No. 614 of 2008. 2. The brief case of the prosecution is that on 9.8.2006 on account of a petty episode in connection with putting the dirt collected on the street by Raj Bala, the aunt of PW8 Vinod and wife of PW9 Zile Singh, accused Satpal and Dilbag delivered gandasi blows on the head of Sunil, accused Randhir delivered a lathi blow on the head of Sunil, accused Balwan delivered a gandasi blow on the left leg of Sunil, accused Satyawan delivered a brick bat blow on the left shoulder of Sunil and a lathi blow on the little right hand finger of PW9, accused Jiya Lal delivered a gandasi blow on the left side head of PW9, accused Gurdev delivered gandasi blow on the right side head of PW9, accused Randhir delivered a lathi blow on the right shoulder of PW9, accused Jiya Lal delivered a gandasi blow on the left side head of PW8 Vinod, accused Gurdev delivered a brick bat blow on the left knee of PW8 and accused Balwan delivered a brick bat blow on the head of PW8. PW8, PW9 CRA No. 128-SB of 2008 and other connected cases -3- and the other prosecution witnesses climbed up their house and they also threw brick bats from the upstairs of the house. Thereafter, the accused sped away from the scene of occurrence. 3. PW15 Dr. Lalit Kumar medico legally examined PW8, PW9 and the deceased Sunil. He noted down only three head injuries on the person of injured Sunil. He also noted down four simple injuries on the person of PW9 Zile Singh and three simple injuries on the person on PW8 Vinod. 4. The injured Sunil passed away as the medical treatment was proved unsuccessful on 12.8.2006 at 2:25 pm. PW6 Dr. Arvind Kumar conducted post mortem examination on the dead body of Sunil on 13.8.2006. He noted down as many as 13 injuries including the three head injuries as pointed out by PW15 on the person of Sunil. It is his opinion that the deceased would have died due to the head injuries he sustained. PW 17 ASI Ram Niwas having registered the case based on the statement given by PW8 Vinod completed the investigation and laid final report as against all the accused. It is to be noted that MLR Ex. DB relating to four simple injuries sustained by accused Satpal, MLR Ex. DC relating to one simple injury sustained by accused Dilbag and MLR Ex. DD relating to three simple injuries sustained by accused Naresh were also produced. But unfortunately, no case was registered as against the prosecution party based on the complaint given by A8 Satpal. 5. The trial Court having heavily relied upon the ocular testimony of the injured witnesses PW8 Vinod and PW9 Zile Singh in the background of medical evidence available on record returned a verdict of conviction as against accused as stated supra. CRA No. 128-SB of 2008 and other connected cases -4- 6. The learned counsel appearing for the appellants would vehemently submit that the investigating official failed to register a case based on the statement given by A8 Satpal. Nor had he registered a case earlier based on the statement given by PW9 Zile Singh. PW 15 Dr. Lalit Kumar had originally noted down only three head injuries on the person of Sunil. But quite unfortunately the prosecution has come out with as many as five injuries on the person of Sunil. The said version is also contradicted by the post mortem doctor. The trial Court failed to note that the gandasi which was recovered did not disclose any blood stains thereon. The injuries sustained by the accused were not seriously taken into account by the trial Court. No acceptable explanation was also forthcoming from the side of the prosecution witnesses. It is his further submission that there is material contradiction in the testimony of the alleged injured ocular witnesses PW8 and PW9. It is his last submission that the delay of about 48 hours in registering the case by the investigating official has given a room for embellishment. Therefore, he submits that the accused are entitled to acquittal. 7. Per contra, the learned Assistant Advocate General appearing for the State would submit that the testimony of the injured witnesses PW8 and PW9 cannot be simply ignored. The medical evidence also lends corroboration to the case of the prosecution. It is his further submission that though, PW15 had not noted down the minor abrasions and bruises found on the person of Sunil, the post mortem doctor had noted down meticulously those injuries also. Therefore, it is his submission that the trial Court has rightly returned a verdict of conviction as against all these accused. 8. The learned counsel appearing for the revision petitioner in Crl. Revision No. 614 of 2008 would submit that there was a motive for the CRA No. 128-SB of 2008 and other connected cases -5- murder of Sunil by the accused, inasmuch as there was an earlier attack launched by the deceased Sunil on A2 Randhir. It is his further submission that the trial Court should have recorded conviction under Section 302 IPC at least against the main accused Satpal, Dilbag and Randhir as they had consciously chosen the head of Sunil to deliver attacks. Referring to the medical evidence he would submit that those three head injuries had taken away the precious life of the only son of the petitioner herein. Therefore, it is his submission that the accused shall be convicted for the offence under Section 302 IPC. 9. PW8 Vinod and PW9 Zile Singh have graphically deposed that accused Satpal and Dilbag delivered gandasi blows on the head of Sunil and A2 Randhir delivered a lathi blow on the head of Sunil. They have also deposed that accused Satyawan, accused Jiya Lal, accused Gurdev and accused Randhir delivered lathi blows on PW9 Zile Singh. It is their further version that accused Jiya Lal, Gurdev and Balwan Singh caused injury on the person of PW8 with gandasi and brick bats respectively. 10. In my considered opinion, the testimony of Dr. Lalit Kumar who was examined as PW15, materially corroborates the ocular testimony of PW8 and PW9. True it is that he had not noted down an abrasion on the left leg of Sunil and a bruise on the left shoulder of Sunil alleged to have been caused by accused Balwan and Satyawan respectively. Quite probably PW15 would have missed those two injuries as it were found to be abrasion and bruise on unimportant part of the body of Sunil, while noting down lethal injuries found on the head of the injured Sunil. But at any rate it is found that PW6 Dr. Arvind Kumar who conducted post mortem examination had accounted not only three head injuries sustained by Sunil but also the abrasion and bruise CRA No. 128-SB of 2008 and other connected cases -6- found on the person of Sunil. Of course, he has come out with as many as 13 injuries on the person of Sunil. But the fact remains that Sunil had been under extensive treatment in various hospitals. No wonder he might have encountered some injuries on account of operation undertaken by the doctors while making an attempt to save the life of the only son of the petitioner in Crl. Revision No. 614 of 2008. At any rate, it is found that the material injuries found on the person of Sunil have been cogently spoken to not only by PW15 but also by PW16. The said evidence of PW15 and PW16 lend corroboration to the evidence of ocular testimony available on record. 11. As rightly pointed out by the learned counsel appearing for the appellants, the gandasi which was recovered at the instance of accused Satpal, Dilbag, Balwan and Jiya Lal did not contain any blood to enable the Forensic Science Laboratory (in short 'FSL') to test group of blood. At this stage, the learned Assistant Advocate General appearing for the State would bring to the notice of this Court that the material object namely gandasi was sent to FSL only after a delay of about 40 days. As rightly pointed out by the learned Assistant Advocate General appearing for the State, the blood stains on the gandasi would have vanished on account of elapse of time. But at any rate, the absence of blood stains on the gandasi cannot be a ground to discard the ocular testimony of the injured witnesses which received full support from the medical testimony. 12. As pointed out by the learned counsel appearing for the appellants, there is some lapse on the part of the investigating official to register the case based on the statement given by A8 Satpal. It appears that A8 Satpal had lodged a complaint as early as on 9.8.2006 at 2:25 pm itself immediately after the occurrence. No reason has been assigned by the investigating official as to CRA No. 128-SB of 2008 and other connected cases -7- why the statement of A8 Satpal was not registered as First Information Report. In this context, it is to be noted that the accused had produced MLRs Exs.DB, DC and DD to establish that not only accused Satpal but also accused Dilbag and Naresh sustained injuries in the occurrence. I fail to understand as to why the investigating official totally ignored the complaint given by A8 Satpal. 13. At least the investigating official should have registered the formal First Information Report (in short 'FIR') based on the statement Ex.PK given on the very same day of occurrence at 3:15 pm. But unfortunately the investigating official, for the reasons best known to him, had not chosen to take cognizance of such a statement given by PW9 Zile Singh. 14. Only on the basis of statement given by PW8 Vinod on 10.8.2006 at about 2:50 pm, the FIR Ex.PH/1 was registered. As rightly pointed out by the learned counsel appearing for the appellants, Ex.PH/1 the formal FIR registered by PW17 Ram Niwas, is directly hit by the embargo found under Section 162 Code of Criminal Procedure (in short 'Cr.P.C.'). In view of the above, the FIR Ex.PH/1 cannot be referred to as part of evidence in this case as it is directly hit by the provision of Section 162 Cr.P.C. Just because the FIR is hit by the provision of Section 162 Cr.P.C, the entire edifice built by the prosecution based on the statements of the injured ocular witnesses in this case cannot be thrown over-board. The injured witnesses had infact no role to play in the matter of registration of the case by the police official concerned. Therefore, in my view, dehors the lapse on the part of the police official in not registering the case based on the earlier statement given by PW9 Zile Singh and registration of the FIR based on the subsequent statement given by PW8 Vinod which was hit by the provision of Section 162 Cr.P.C., the case of the prosecution still survives as there is credible and trustworthy CRA No. 128-SB of 2008 and other connected cases -8- material from the injured ocular witnesses and medical testimony to clinch the charge as against the accused. 15. It is not as if the prosecution has completely failed to explain the injuries found on the person of accused Satpal, accused Dilbag and accused Naresh, inspite of the fact that the investigating official failed to register a case based on the statement given by accused Satpal. Firstly, those injuries sustained by the accused are found to be simple in nature. Secondly, PW8 and PW9 have come out with an acceptable version that they retaliated after climbing up their house the attack launched by the accused and as a result of which the accused would have sustained brick bat injuries. MLRs Ex.DB, Ex.DC and Ex.DD would go to show that they had received only simple injuries which could have been caused in the opinion of the doctor who issued those certificates on account of brick bats. Therefore, in my considered opinion, the injuries sustained by the accused also were explained by the prosecution. 16. As regards the attack launched by the accused on the person of PW8, PW9 and the deceased Sunil, I do not find there is any material contradiction in the testimony of PW8 and PW9. It is true that there is a delay of about 48 hours in registering the FIR. It is also true that there is some lapse on the part of the investigating official in not registering the case in earlier point of time based on the statement given by PW9 Zile Singh. At any rate, I find that the delay in registering the case by the investigating official would not falsify the ocular account of the injured witnesses supported by the medical testimony in this case. 17. It appears that a quarrel had erupted all of a sudden on account of a petty episode. It is also on record that the gandasi was not used with its CRA No. 128-SB of 2008 and other connected cases -9- sharp edged side to launch attack on the injured persons. The accused party had also sustained injuries in the occurrence. Therefore, I find that the trial Court has rightly held the accused Randhir, Dilbag and Satpal guilty for the offence under Section 304 Part II IPC and the accused Jiya Lal, Balwan Singh, Satyawan and Gurdev for the offence under Section 323 IPC and all the aforesaid accused for the offence under Section 506 IPC. But in my considered view, the sentence of five years rigorous imprisonment for the offence under Section 304 Part II IPC and six months rigorous imprisonment for the offences under Sections 323 and 506 IPC, of course, with the fine and the default sentence imposed by the trial Court would meet the ends of justice. 18. In the result, the judgment of conviction recorded by the trial Court as against these accused is upheld. But the sentence of seven years rigorous imprisonment for the offence under Section 304 Part II IPC is reduced to five years rigorous imprisonment, the sentence of one year rigorous imprisonment for the offence under Section 323 IPC is reduced to six months rigorous imprisonment and the sentence of two years rigorous imprisonment for the offence under Section 506 IPC is reduced to six months rigorous imprisonment. The fine and default sentence imposed for the aforesaid offences as against the accused by the trial Court stand upheld. With the above modification in the matter of sentence, both the appeals filed by the accused as well as the criminal revision filed by the petitioner stand dismissed. Accused Jiya Lal, Balwan Singh, Satyawan and Gurdev are found to be on bail. They shall surrender before the Chief Judicial Magistrate concerned within fifteen days from the date of judgment. On their failure to surrender as directed by this Court, the Chief Judicial Magistrate concerned shall issue non bailable warrants against all the accused. On surrender or on CRA No. 128-SB of 2008 and other connected cases -10- production, the accused shall be sent to jail to undergo the unexpired portion of sentence. (M. JEYAPAUL) JUDGE August 29, 2011 sjks