Crl.A.No.511-DB of 1998 -1 - IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl.A.No.511-DB of 1998 Date of Decision : 12.12.2008 Duli Chand and others ..Appellants. Versus State of Haryana ..Respondent. CORAM : HON'BLE MR.JUSTICE S.S.SARON HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Arshvinder Singh, Advocate for the appellants. Mr.H.S.Sran, Addl.AG Haryana. RAKESH KUMAR JAIN, J. The learned Additional Sessions Judge, Faridabad vide impugned judgment dated 13.10.98 held appellant No.1 Duli Chand son of Ranvir Singh guilty for the offences punishable under Sections 148, 302, 323 read with Section 149 Indian Penal Code (“IPC” - for short) whereas the appellants namely Jagdish, Mukesh, Pat Ram, Azad, Gian Chand and Samey Singh were held guilty for the offences punishable under Sections 148, 325, 323 read with Section 149 IPC. By a subsequent order dated 21.10.1998, appellant No.1 Duli Chand was sentenced to undergo imprisonment for life for offence punishable under Section 302 IPC besides to pay a fine of Rs.30,000/-. He was also sentenced to undergo rigorous Crl.A.No.511-DB of 1998 -2 - imprisonment (“RI” - for short) for a period of one year for the offence punishable under Section 148 IPC and RI for a period of 6 months for the offence punishable under Section 323 IPC. In default of payment of fine for the offence punishable under Section 302 IPC, he was ordered to undergo further RI for a period of one year. The substantive sentences were ordered to run concurrently. The other appellants namely Jagdish, Mukesh, Pat Ram, Azad, Gian Chand and Samey Singh were awarded RI for a period of one year for the offence punishable under Section 148 IPC, six months RI for the offence punishable under Section 323 IPC and RI for a period of two years and to pay a fine to the tune of Rs.10,000/- each for the offence under Section 325 IPC. In default of payment of fine qua the offence under Section 325 IPC, the defaulting-convict was ordered to undergo RI for a period of 6 months. It was further ordered that the substantive sentences will, however, run concurrently. It was also ordered that the period of imprisonment already undergone by the convicts during the investigation, enquiry and trial, shall be set off against the terms of imprisonment imposed on them on their conviction. It was maintained that the total amount of fine of Rs.90,000/- which is to be collected by way of fine from all the accused, be diverted as compensation to the widow of the deceased. The prosecution case as unfolded in the FIR (Ex. PC/2) lodged by Rajinder (PW2) son of Cheti is that he is a resident of village Dhatir and is an agriculturist. On 13.11.1995 at 10 A.M. when he had gone to his fields in a 'Jhotta Buggi' (Ox Cart) to village Ghurera, his brother Tej Pal and uncle Sukhi were already working there. He parked his 'Jhota Buggi' (Ox Cart) along the path adjoining the fields. Duli Chand (appellant No.1) son of Crl.A.No.511-DB of 1998 -3 - Ranvir Singh removed his 'Jhotta Buggi' (Ox Cart) from there. The complainant (PW2) asked Duli Chand (appellant No.1) as to why he had removed the 'Jhotta Buggi' (Ox Cart) on which Duli Chand (appellant No.1) lost his cool and said that he would teach him a lesson. Thereafter, Duli Chand (appellant No.1) went to his house and brought his brother Mukesh, father Ranbir, uncle (Chacha) Jagdish, Gian Chand, Samey Singh, Pat Ram and Azad and they with a common intention carrying lathi and an axe came in a tractor towards their fields and raised a 'lalkara' that these persons be encircled and be taught a lesson for parking the 'Jhotta Buggi' (Ox Cart) in the way. On this, Gian Chand gave a lathi blow on the back of Rajinder Singh-complainant, Mukesh gave a lathi blow on his right shoulder and Duli Chand (appellant No.1) gave an axe blow on his head. His brother Tejpal and uncle Sukhi tried to save him, then Ranbir caught hold of Tejpal and Duli Chand (appellant No.1) gave an axe blow on his head, as a result of which Tejpal fell on the ground and while he lay on the ground, Samey Singh gave a lathi blow on his right hand, Pat Ram gave a lathi blow on his back, Azad gave a 'jelly' blow near the right temple, Jagdish gave a lathi blow on his left shoulder and Gian Chand gave a lathi blow on his right shoulder. Pat Ram gave a lathi blow to Sukhi as a result of which he fell down. Pat Ram caught hold of him and Samey gave a lathi blow on his right foot. Ranbir gave a lathi blow on his neck on which the complainant side raised an alarm of `Bachao Bachao' (save,save). Then Lakhi son of Ramji Lal, Dev Rattan son of Ram Rattan of the same village reached there and saved them from the assailants otherwise they would have given them more beatings. After that the assailants ran away from the spot in the tractor along Crl.A.No.511-DB of 1998 -4 - with their weapons. His brother Tejpal became unconscious at the spot and his uncle Sukhi and Veer Singh son of Harjiwan resident of the same village, brought Tejpal to the Civil Hospital, Palwal for treatment. The doctor declared his brother Tejpal as dead. It is mentioned in the FIR that the incident occurred at 1 P.M. The statement (Ex.PC) was attested by Bhagat Singh SI/SHO Police Station Sadar, Palwal. From the aforesaid statement, offences punishable under Sections 148, 149, 323 and 302 IPC it was observed were made out and a writing in this regard was sent to the Police Station through Constable Ram Kumar No.1694 for the registration of a case (FIR). Its number was asked to be intimated and special reports were also asked to be sent to the higher officers. The FIR was registered by Jai Shree, ASI, Police Station Sadar Palwal for the offences punishable under Sections 148, 149, 302 and 323 IPC. Copies of FIR and special reports were prepared and the same were sent to the concerned officer through Constable Jai Chand C.No.1390. The Investigating Officer SI/SHO Bhagat Singh, who appeared as PW7, received a ruqa (Ex.PH) from General Hospital, Palwal intimating that one Tejpal had been brought dead besides Rajender and Sukhi had been brought in injured condition. The ruqa was received at 2.25 p.m. In pursuance to that, he went to General Hospital, Palwal at 3 p.m. and moved an application (Ex.PI) to the doctor seeking his opinion as to whether Sukhi was fit to make a statement on which opinion (Ex.PI/1) was given by the doctor that he was fit to make a statement. Similarly, an application (Ex.PJ) was moved before the doctor to ascertain the condition of Rajender for Crl.A.No.511-DB of 1998 -5 - making a statement and it was opined by the doctor vide opinion (Ex.PJ/1) that he was fit to make a statement. Thereafter, Rajender made a statement (Ex.PC) which was recorded and read over to him and was endorsed vide endorsement Ex.PC/1 by SI/SHO Bhagat Singh (PW7) - the Investigating Officer and was forwarded by him through Constable Ram Kumar for registration of a case on which formal FIR (Ex.PC/2) was recorded at Police Station, Sadar Palwal at 3.50 p.m. on the same day. Inquest proceedings (Ex.PB/2) were prepared in respect of the dead body of Tejpal. A request was made for conducting post mortem examination of the dead body of Tejpal through HC Ramesh Chand vide letter Ex.PK. The Investigating Officer (PW7) then went to the place of occurrence and prepared a rough site plan Ex.PL and lifted blood stained earth from the spot vide memo Ex.PF. HC Ramesh Chand produced a packet containing the clothes that the deceased was wearing and another vial containing sample of blood alongwith sample seal which were seized vide memo Ex.PM. Accused Duli Chand, Ranbir, Jagdish, Pat Ram, Azad and Gian Chand were arrested on 14.11.1995, besides, accused Mukesh and Samey Singh were arrested on 16.11.1995. The accused Azad while in custody, was interrogated in the presence of HC Ramesh Chand who suffered a disclosure statement Ex.PN and inter alia stated that he had kept concealed a 'Jelly' near the 'ganda-nala' (sewage drain) of village Dhatir and that he could get the same recovered. Similarly accused Ranbir suffered a disclosure statement Ex.PO and inter alia stated that a four pronged 'Jelly' had been kept concealed by him in the 'Kikkar' trees of village Dhatir and that he could get the same recovered. Accused Jagdish suffered disclosure statement Ex.PP to the effect that he Crl.A.No.511-DB of 1998 -6 - had kept concealed a lathi near the ganda-nala of village Dhatir under the 'Kikkar' trees and that the same could be got recovered. Accused Gian Chand suffered a disclosure statement Ex.PQ in which he stated that he had kept concealed a lathi under the 'Kikkar' trees near the ganda-nala of village Dhatir and the same could be got recovered. Likewise the accused persons Pat Ram made a disclosure statement Ex.PR, Duli Chand (appellant No.1) made a disclosure statement Ex.PS, Samey Singh made a disclosure statement Ex.PT and Mukesh made a disclosure statement Ex.PU in respect of their respective weapons of the offence. On 17.11.1995, the accused Pat Ram got recovered a lathi from the place as disclosed in the presence of witnesses Girraj and Sukhbir, which was seized vide memo Ex.PR/1; accused Jagdish got recovered a lathi, which was seized under memo Ex.PP/1, Samey Singh got recovered a lathi, which was seized under memo Ex.PT/1, Mukesh got recovered a lathi, which was seized under memo Ex.PU/1, Gian Chand got recovered a lathi which was seized under memo Ex.PQ/1, Azad got recovered a four prong 'Jelly', which was seized under memo Ex.PN/1, Ranbir got recovered a four prong 'Jelly', which was seized under memo Ex.PO/1, Duli Chand got recovered an axe which was seized under memo Ex.PS/1. Rough sketch of the axe Ex.PH/2 and rough site plan depicting the places of these recoveries were also prepared. Scaled site plan was also prepared by Girraj, Patwari Halqa on or about 22.12.1995. After completion of the investigation, the challan in terms of Section 173 Code of Criminal Procedure (“Cr.P.C.” - for short) was prepared on 1.1.1996 and was filed in the Court of the learned Judicial Magistrate Ist Class, Palwal, who vide his order dated 19.2.1996 observed that the offence Crl.A.No.511-DB of 1998 -7 - under Section 302 IPC was exclusively triable by the Court of Session, therefore, the case was committed to the said Court. The learned Sessions Judge framed charges against the aforesaid accused vide order dated 25.3.1996. It was alleged that on 13.11.1995 in the area of village Dhatir, the accused-appellants formed an unlawful assembly armed with deadly weapons like lathi, kulhari etc. and in prosecution of the common object, committed the murder of Tejpal and caused injuries to PWs Rajender, Sukhi and Sukhbir. The contents of the charge-sheet were read over and explained to the accused persons in simple Hindi, which was understood by them but they pleaded not guilty to charges and claimed trial. In order to prove its case, the prosecution examined nine witnesses and also tendered documents in evidence. The statements of the accused were recorded in terms of Section 313 Cr.P.C. in which the occurrence was admitted but it was, however, stated that PW Rajender had parked his 'Jhotta Buggi' (Ox Cart) on the passage and when an attempt was made to be get it removed then Rajender, Tejpal and Sukhi started beating Duli Chand (appellant No.1) by giving fist blows and slaps. At that time, co- accused Ranbir had come there after unloading the fodder and he made an attempt to rescue the accused persons but he was also beaten by them, then they had to retaliate in their defence. No evidence in defence was produced. The learned trial Court after considering the entire evidence on record, found accused-appellant Duli Chand (appellant No.1) to be guilty of committing an offence punishable under Section 302 IPC and convicted him under Sections 148, 302, 323, 325 IPC whereas the other accused Jagdish, Mukesh, Pat Ram, Azad, Gian Chand and Samey Singh were found Crl.A.No.511-DB of 1998 -8 - to be guilty for offences punishable under Sections 148, 323, 325 read with Section 149 IPC and were accordingly convicted. Hence they all have come up in appeal against the judgment and order of conviction and sentence passed against them by the trial Court. The only argument that has been raised by the learned counsel for the appellants is that in the facts and circumstances of the present case, the offence committed by the appellant Duli Chand (appellant No.1) cannot be said to be such so as to make out a case in terms of Section 302 IPC and has submitted that same would at the most make out an offence under Section 304 Part-II IPC. In response, learned counsel appering for the State has submitted that the facts and circumstances of the case clearly make out a case for the offence under Section 302 IPC. It is submitted that the appellants formed an unlawful assembly and in the furtherance of their common object committed the murder of Tejpal. It is submitted that fatal injuries have been attributed by the appellants on the person of the deceased which were in furtherance of their common intention. He has also submitted that the accused persons have collectively caused injuries not only to the deceased but also to the witnesses. It is also submitted that even witness Sukhbir had suffered the skull injury, which was muscle deep, however, it is admitted that injury caused to PW Sukhbir is not attributed to appellant Duli Chand and the injuries which have been caused to PW Rajender, were found to be simple in nature. We have heard learned counsel for the parties and have perused the record with their assistance. Crl.A.No.511-DB of 1998 -9 - It may be noticed that Duli Chand (appellant No.1) has been held guilty for the offence punishable under Sections 148, 302 and 323 read with Section 149 IPC. The other appellants namely Jagdish, Mukesh, Pat Ram, Azad, Gian Chand and Samey Singh have been held guilty for the offences under Sections 148, 325 and 323 read with Section 149 IPC. The substantive offence of Section 302 IPC is attributed only to Duli Chand (appellant No.1). The complainant Rajinder (PW2) while appearing in Court has reiterated his statement (Ex.PC) on the basis of which FIR (Ex.PC/2) was registered. The complainant Rajinder (PW2) states that on 13.11.1995 at 10.00 a.m. he had gone to his fields in village Ghurera. His uncle Sukhi and brother Tejpal (deceased) were already working in the fields. Rajinder (PW2) parked his 'Buggi' (Cart) by the side of the fields. Duli Chand (appellant No.1) came there and asked him to remove his 'Buggi' (Cart) from there. It is stated that in fact Duli Chand (appellant No.1) himself drove aside his 'Jhotta Buggi' (Ox Cart); on this Rajinder (PW2) protested as to why he had done so. Duli Chand (appellant No.1) then retorted that they were in high airs these days and he would teach him a lesson. Saying this, he went to his house. At about 12.30/12.45 p.m. Duli Chand (appellant No.1), Mukesh, Ranbir, Jagdish, Azad, Gian Chand, Patram and Samey Singh came there in a tractor armed with lathis, jellys and kulharis. Coming near the complainant, they shouted to encircle them and teach a lesson for parking the 'Jhotta Buggi' (Ox Cart) by the side of the path. Thereafter, Gian Chand gave a 'lathi' blow on the back of the complainant Rajinder (PW2), Mukesh gave a lathi blow on the right shoulder of the complainant Rajinder (PW2), while Duli Chand (appellant Crl.A.No.511-DB of 1998 -10 - No.1) gave a 'kulhari' blow from its blunt side on the head of the complainant Rajinder (PW2). Tejpal and Sukhi tried to rescue the complainant Rajinder (PW2). Tejpal caught hold of Ranbir, while Duli Chand (appellant No.1) gave a 'kulhari' blow from its blunt side on the head of Tejpal and he fell on the ground. Samey Singh gave a lathi blow on his right hand. Pat Ram gave a lathi blow on his back. Azad gave a lathi blow with 'jelly' on his temple. Jagdish gave a lathi blow on his left hand and Gian Chand gave a lathi blow on the right shoulder of Tejpal. Throwing his lathi on the ground, Pat Ram caught hold of Sukhi and threw him on the ground. Samey Singh gave a lathi blow on the right leg of Sukhi while Jagdish gave a lathi blow on his neck. Then the complainant side raised an alarm and Lakhi and Dev Rattan intervened. After the occurrence, the accused person went away on their tractor along with their weapons. Tejpal was unconscious and was removed to the General Hospital, Palwal where he was declared dead. In order to appreciate the nature of injuries, a reference may be made to the statement of Dr.Raj Kumar Sharma, who appeared as PW1 and conducted post mortem on the dead body of Tejpal. The doctor found the following injuries on the dead body of Tejpal. “1) Lacerated wound 1” x 1/2” x 1 over the middle of parietal region of skull. Bone deep and underlying bone was fractured in multiple pieces with oozing of blood through the gap of wound and also CSF and also CSF oozing through the gap of wound. 2) Two parallel reddish contusion marks 5” x 1” over the let supra scapular region of shoulder joint transversely placed. Crl.A.No.511-DB of 1998 -11 - 3) Two parallel reddish contusion marks 8” x 1” over the middle of back of chest transversely placed. 4) Lacerated wound 1/2” x 1/2” over the upper 1/3rd and 2” below the right elbow joint of right forearm posteriorly placed muscle deep. 5) Reddish abrasion mark 2” x 1” over the right scapular region of shoulder joint. There was a celebral haemotoma 5” x 3 ½” over the both cerebral hemispheres with clotted blood was present under the caranial wallt.” The doctor submitted that the cause of death in this case was due to shock and haemorrhage as a result of injuries, which were all ante mortem in nature. In the cross examination, it is submitted by the doctor (PW1) that injury No.1 on the dead body of Tejpal could well have been caused by lathi. Injury No.2 it is stated was possible by a weapon having two parallel prongs, or by one lathi. Similar was his reply with regard to injury No.3. Injury No.4 was in the circular region which can be caused by variety of reasons, just like this particular portion getting rubbed after falling on the ground. Injury No.5 was found to be superficial injury, which can be possible if the seat of injury gets rubbed by some rough surface. It is stated injury No.1 was by some blunt weapon. It was thus, opined that except for injury No.1, other injuries were simple in nature and but for injury No.1, the patient would not have died. Learned Counsel for the appellants submits that PW2 Rajinder has stated that Duli Chand (appellant No.1) had given a blow with an axe on the person of Tejpal (deceased) from Crl.A.No.511-DB of 1998 -12 - its reverse side. Similarly another eye witness namely PW3 Lakhi also stated that Duli Chand (appellant No.1) gave a blow with an axe from its reverse side on the head of Tejpal deceased. Therefore, it is contended that in the post-mortem report the doctor had opined that the fatal injury was caused by a blunt weapon and in the statement of the eye witnesses, it has been alleged that Tejpal (deceased) was inflicted an axe blow from its reverse side by appellant No.1 Duli Chand. Therefore, it is quite evident that he had no intention to kill. It is also contended on behalf of the appellants that the appellant No.1 Duli Chand has not repeated the blow on the head of the deceased, besides, the other injuries were found to be simple in nature. The other injuries indeed were not sufficient to cause death as has been stated by Dr. Raj Kumar Sharma (PW2). Therefore, it has been vehemently contended by the learned counsel for the appellants that the case is one that falls under Section 304 Part-II IPC instead of Section 302 IPC. The learned counsel for the appellants has relied upon Virsa Singh Vs. State of Punjab AIR 1958 SC 465; Surinder Kumar Vs. Union Territory, Chandigarh AIR 1989 SC 1094; Rulda Vs. State of Punjab 1992(1) RCR 331; Rajinder Singh Vs. State of Haryana 1994(2) RCR 68; Sukhdev Singh Vs. Delhi State (Govt. of NCT of Delhi) AIR 2003 SC 3716; Manke Ram Vs. State of Haryana AIR 2003 SC 4147; Shivappa Buddappa Kolkar alias Buddappagol Vs. State of Karnataka and others AIR 2004 SC 5047 and Dayanand Vs. State of Haryana 2008 Crl.L.J. 2975 (SC). From the perusal of the aforesaid authorities relied upon by the learned counsel for the appellant, four requirements are to be satisfied in Crl.A.No.511-DB of 1998 -13 - order to attract Exception 4 to Section 300 IPC that are: (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in the heat of passion; and (iv) the offender had not taken any undue advantage or acted in a cruel or unusal manner. The present is a case of sudden fight on a trivial issue. The complainant Rajinder (PW2) had parked his 'Jhotta Buggi' on the side of the fields. This was objected to by Duli Chand (appellant No.1) as according to him it was on the way. He then went away and called others and caused injuries to the complainant side and out of them Tejpal unfortunately died. Therefore, there was no premeditation and in the heat of passion, injuries were inflicted upon the deceased by Duli Chand (appellant No.1) from the reverse side of an axe that he was carrying. Therefore, the appellant had not taken any undue advantage or acted in a cruel manner at the time when the injuries were inflicted. The number of wounds caused during the incident, is not the determining factor nor can it be said that Duli Chand (appellant No.1) had the intention to cause the death of Tejpal. Besides, Duli Chand (appellant No.1) did not repeat the blow. In these circumstances, considering the evidence on record, the inevitable conclusion is that Exception 4 to Section 300 IPC is attracted and the conviction of Duli Chand (appellant No.1) under Section 302 IPC would not be proper and the same is liable to be modified to that under Section 304 Part II IPC. The conviction of Duli Chand (appellant No.1) is, therefore, liable to be altered to that under Section 304 Part II IPC and keeping in view the facts and circumstances of the present case, appellant No.1 Duli Chand is liable to be sentenced to undergo imprisonment for 7 years instead of life Crl.A.No.511-DB of 1998 -14 - imprisonment. Insofar as the other accused-appellants are concerned who have been awarded maximum two years rigorous imprisonment under Section 325 IPC, a prayer has been made on their behalf for extending them the benefit of probation in terms of Section 360 Cr.P.C. It has been submitted by the learned counsel for the appellants that there has been a long incarceration of the said appellants in the present case which had started about 10 years back, Therefore, instead of sending them to jail at this stage, they may be released on probation. We have given our thoughtful consideration to the submissions made by the learned counsel for the appellants. The object of penalisation is reformative in nature. Efforts are to be made as far as possible not to allow the first offenders