IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal S-46-SB of 2007 Date of Decision : February 22, 2011 Ranbir and others .....Appellants Versus State of Haryana ....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Rahul Vats, Advocate Mr. Raja Sharma, Asstt. Advocate General, Haryana. T.P.S. MANN, J. The appellants, alongwith five others, were tried for offences under Section 148 IPC and Sections 307/323/325/427 read with Section 149 IPC. Vide judgment and order dated 21/23.12.2006, Additional Sessions Judge, Fast Track Court, Bhiwani acquitted the co-accused of the appellants. The appellants were convicted and sentenced as follows ;- Ranbir : Under Section 325 IPC : to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one month. Crl. Appeal S-46-SB of 2007 -2- Gaurav : Under Section 285 IPC : to undergo rigorous imprisonment for three months and to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for fifteen days. Anurag : Under Section 323 IPC : to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for fifteen days. According to the prosecution, PW Vikas made statement Ex.PJ before ASI Ashok Kumar on 22.7.2004 stating that he was resident of M.C. Colony, Charkhi Dadri and was a Contractor. Rajesh son of Dharampal and Sukhbir son of Bnhagwan Singh had entered into an agreement with Umed son of Ram Dayal and others on 21.7.2004 for purchasing 2820 sq. yards of land and on the following day, they started raising a wall. At about 4.30 P.M. a telephonic message was received from Kuldeep, Personal Assistant of local M.L.A. asking them to reach the residence of Kapoor Singh son of Phool Singh. Accordingly, Vikas, alongwith Mukhpal and other persons, left for the house of Crl. Appeal S-46-SB of 2007 -3- Kapoor Singh. When they reached there, Ranbir, Dharam Singh, Pappal, Billu and Lilla sons of Phool Singh, Gaurav son of Ranbir and Tinu son of Dharam Singh alongwith 7/8 persons also arrived there on a Mahindra Tractor, to which trolley was attached and in one Maruti car and told them that they would have a talk with them. Soon thereafter, Gaurav fired two shots in air, whereas Ranbir gave lathi blow to Vikas on his left hand wrist. Lilla Ram gave a lathi blow on his right shoulder. Tinu gave a lathi blow on the right thigh of Mukhpal. They also caused damage to their Maruti car. The assailants then fled from the spot on their tractor and car. The complainant further stated that the occurrence had taken place at 4.40/4.45 P.M. on account of dispute regarding purchase of the plot. Statement Ex.PJ made by complainant Vikas was, thereafter, sent to the Police Station. On its basis no separate FIR was registered as a case pertaining to the same occurrence had already been registered vide FIR No.116 dated 22.7.2004 at Police Station City Dadri, on the basis of statement made by the other party. DDR was, however, recorded regarding the occurrence. Both Vikas and Mukhpal were medically examined. During investigation, tractor belonging to accused Sukhbir was taken into possession. Statements of the witnesses were recorded. Upon completion of investigation, report under Section 173 Cr.P.C. was submitted against the appellants and their co- Crl. Appeal S-46-SB of 2007 -4- accused for offences under Sections 323/325/307/148/149 IPC and 25 of the Arms Act. Subsequent to commitment of the case, all the accused were charged for the offences under Section 148 IPC and Sections 307/325/323/427/149 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution examined PW1 Hawa Singh, PW2 HC Sajjan Singh, PW3 Dr.U.S. Disodia, PW4 ASI Mahander Singh, PW5 SI Kuldip Singh, PW6 Mukhpal, PW7 Vikas, PW8 ASI Ashok Kumar, PW9 Dr. Anil Sharma and PW10 Dr. R.S. Punia. When examined under Section 313 Cr.P.C., all the accused denied the prosecution allegations and pleaded innocence. According to them, on the day of incident, complainant party was wrongfully erecting a wall after encroaching upon their land. They called the police at the spot and in the presence of police as well, it was found that complainant had encroached upon their land. Despite instruction by the police, they continued raising construction. A telephonic message was received on the mobile phone of Vikas and both the parties were called to assemble at the residence of local MLA Ranbir Singh Mandola, by his Personal Assistant Kuldeep Singh. Both the parties went there and when they reached near the house of Kapoor Singh then Kapoor and Rajiv caught hold of Sukhbir whereas Vikas fired a shot from his pistol at Sukhbir with Crl. Appeal S-46-SB of 2007 -5- intention to kill him. The bullet hit Sukhbir on his private part and went through and through. The second shot fired by Vikas did not hit anyone. Mukhpal also fired 5/6 shots from his pistol but those did not hit anybody. It was pleaded that the accused party was totally unarmed and did not cause any injury to anybody and that police was in league with the complainant party and challaned only two of them for lighter offence and wrongly charge sheeted them. When called upon to enter into their defence, the accused did not lead any oral evidence. However, accused Gulab Singh tendered documents Ex.D1 to Ex.D29 in his defence. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court convicted and sentenced the appellants, as mentioned above, whereas their co-accused were acquitted of all the charges. In support of the ocular account, the prosecution examined PW6 Mukhpal, who testified that he was a Contractor with B&R Department. A piece of land measuring 2820 sq. yards was purchased by Rajesh and Sukhbir from Umed son of Ram Dayal on 21.7.2004. On 22.7.2004 at about 2.30 P.M. Rajesh and others were constructing boundary wall and Dharam Singh came there with the police and asked Rajesh and others not to Crl. Appeal S-46-SB of 2007 -6- construct the wall whereupon Rajesh said that they had measured their land and he could satisfy himself by getting the same measured at his own level. Dharam Singh measured the land and stated that 10-15 feet of land was encroached upon on his side, whereupon Rajesh asked him to get it remeasured from the Patwari. He further stated that upon receiving telephonic call from Kuldeep, Personal Assistant to Ranbir Singh Mandola, he and Vikas went to the house of Ranbir Singh in a car bearing No.DL-2FK-0024, driven by Vikas. Accused Ranbir, Dharam Singh, Pappan, Lilla, Billu, Gaurav, Tinu, Sukhbir and 7-8 other persons alighted from a tractor No.HR-19-3083 and attacked them with lathies. Gaurav was having a country made pistol and fired two shots with intention to kill them but luckily they were saved. Ranbir gave lathi blow on the head of Vikas but Vikas warded off that blow with his right hand and sustained injury on right hand. Lilla gave lathi blow on the right shoulder of Vikas and Tinu gave lathi blow on his thigh. On their raising alarm, mother of Vikas and his uncle Satyawan arrived at the spot. Accused also broke window panes of their car with lathies. Vikas fired two shots from his licenced revolver, whereupon accused started fleeing away and in that process, Gaurav fired shot, which hit on his co-accused Sukhbir. He alongwith Vikas went to Police Station where Vikas made statement to the police and thereafter police got him and Vikas medically examined from General Crl. Appeal S-46-SB of 2007 -7- Hospital, Bhiwani. Crl. Appeal S-46-SB of 2007 -8- The other injured person, namely, Vikas appeared before the trial Court as PW7 and stated that Rajesh and Sukhbir Singh had purchased 2820 sq. yards of land and had given advance on 21.7.2004. A boundary wall was to be raised on the next day i.e. 22.7.2004. On that day, i.e. 22.7.2004, at about 2.30 P.M., Dharam Singh came at the site of above said plot alongwith the police and remarked that the plot in question included 10 to 12 feet wide strip of their side upon which Rajesh told him to get the same measured from concerned Patwari. At about 4.30 P.M., a telephonic message from Personal Assistant to Ranbir Singh Mandola was received on the cell phone of Mukhpal and it was desired that Mukhpal should reach at the house of Kapoor Singh. He alongwith Mukhpal went in their Santro car bearing No.DL- 2FK-0024. When they reached near the house of Kapoor Singh, then Ranbir Singh son of Phool Singh, Gaurav son of Ranbir Singh, Dharam Singh son of Phool Singh, Tinu son of Dharam Singh, Gulab @ Billu, Papal and Lilla Ram accompanied by 7-8 other persons arrived there on a tractor-trolley bearing registration No.HR-19-3083 and a Maruti car. Accused Gaurav was armed with pistol while others were armed with lathies. The accused attacked them. Accused Gaurav fired two shots aiming towards him and Mukhpal with intention to kill them but they escaped. Ranbir gave lathi blow on his head with intention to kill him but he warded it off with his left hand. Accused Lilla gave lathi blow on Crl. Appeal S-46-SB of 2007 -9- his left shoulder. Tinu accused gave lathi blow on the right thigh of Mukhpal, while accused Ranbir, Tinu, Gulab @ Billu broke the glasses of the car. On his raising alarm, his mother Prem Kumari and his uncle Satyawan reached at the spot and witnessed the occurrence. He stated that he had also fired two shots with his licenced revolver in his self defence, upon which accused started running away and at that time accused Gaurav fired another shot at him with intention to kill him but the same hit on the person of Sukhbir, who was alongwith the accused person. He reported the matter to the police vide statement Ex.PJ. PW3 Dr. U.S. Disodia had medico legally examined Vikas on 22.7.2004 and found following injuries on his person :- 1. Contusion on left wrist joint on dorso lateral aspect, size 4 cm. x 3 cm. red in colour, obliquely placed, tenderness was present. Movement was restricted and painful. He was advised x-ray on left wrist joint with forearm and orthopaedician opinion. 2. Complaining of pain all over the body. Following injuries were noticed by the aforementioned doctor on the person of Mukhpal :- 1. Contusion on right thigh on anterior lateral aspect, size 3 cm. x 1 cm. red in colour, local temperature was raised Crl. Appeal S-46-SB of 2007 -10- and tenderness was present. 2. Contusion, left side infra-scapular region, size 3 cm. x 1.5 cm., red in colour. Local temperature was raised and tenderness was present. 3. Contusion in the lower part of back in midline, two parallel lines, size 3 cm x 1 cm and 2.5 cm. x 1 cm. Tenderness was present. 4. Abrasion, left leg lower part, size 1.5 cm x .5 cm. Clotted blood was present. The doctor gave opinion Ex.PE/1 that as fracture of left ulna bone was seen, injury on the person of Vikas was grievous in nature. During his cross-examination, the doctor specified the following injuries which he had noticed on the person of Sukhbir appellant :- 1. Lacerated wound on right gluteal region 2 inch natal cleft size 2 cm. x 1.5 cm. everted margins. Oozing of blood was present. 2. Lacerated wound on the penis size 1 cm. x .5 cm. at the middle. Both the parties had admitted that the occurrence had taken place near the house of Kapoor Singh. The FIR regarding the occurrence was registered at the instance of accused Gulab Crl. Appeal S-46-SB of 2007 -11- Singh. Later on statement Ex.PJ of Vikas was recorded and on its basis a cross case was initiated against the appellants and their co-accused. From the medical evidence, it stands established that there were two injuries present on the person of Vikas and four on Mukhpal. All the injuries were caused by blunt weapon and within a probable duration of 24 hours. Similarly, accused Sukhbir Singh was found to have received fire arm injury on his person. None of the injuries of Vikas and Mukhpal, on the one hand, and of Sukhbir, on the other, could have been caused by a friendly hand. The injuries found on the person of accused Sukhbir have been explained by the prosecution in the manner that he had received those injuries at the hands of his co-accused Gaurav. This version had not been brought to the notice of the police when statement Ex.PJ was made by PW7 Vikas to ASI Ashok Kumar. The explanation of the prosecution for the injuries of accused Sukhbir was apparently an after thought and factually improbable. Similarly, the firing by Gaurav appellant while running away looks improbable. None of those shots hit any person from the complainant party. It was highly unlikely that he would have hit his own companion i.e. Sukhbir. In statement Ex.PJ, it was mentioned that he had fired two shots in the air and it was only thereafter that appellant Gaurav fired on shot while running away and it hit on the person of accused Sukhbir. So Crl. Appeal S-46-SB of 2007 -12- much so, name of accused Sukhbir did not find mention in the statement Ex.PJ. Both the competing version from both the sides were recorded by the police within two hours of the occurrence in which Vikas and Mukhpal, on the one hand, and Sukhbir, on the other, received injuries. The injured on both the sides were also medico legally examined within two hours of the occurrence. The manner in which the occurrence had taken place has not been clearly spelled out by the parties. Both the parties were initially present at the fields which Rajesh, a relative of PW Mukhpal had purchased. At that place, the accused had called the police and measurement was done. If the accused had any intention to fight and cause injuries to the complainant party, they would have done that there and then in the fields. From the evidence adduced by both the parties, it is apparent there that they assembled near the house of a local MLA in order to resolve their dispute. At that place, the parties indulged in fight without any pre-meditation. The free fight between the parties resulted in injuries being caused to Vikas and Mukhpal from the side of complainant party and accused Sukhbir on the other. The non- explanation of injuries on the person of accused was not fatal to the prosecution case as the parties received injuries in a free fight. The provisions of Section 149 IPC are also not applicable in such a case of free fight. Crl. Appeal S-46-SB of 2007 -13- Once it is held to be a case of free fight, the accused had to be held liable for their independent act. Ranbir appellant had caused lathi blow on the left wrist of PW Vikas causing grievous injury and, therefore, he was liable for offence under Section 325 IPC. Gaurav appellant had fired in the air and, therefore, responsible for the offence under Section 285 IPC. Similarly, Anurag appellant, who was referred to as Tinu in the statement Ex.PJ, had caused a lathi blow on the person of Mukhpal. The said injury was found to be simple in nature. Therefore, Anurag was liable for the offence under Section 323 IPC. In view of the above, no case is made out for any interference in the conviction of the appellants. None of the appellants is shown to be a previous convict. They have clean antecedents. There were injuries on both the sides. None of the offences for which the appellants stand convicted is punishable with imprisonment for more than seven years. They have been facing the agony of criminal prosecution for the last more than 6½ years. They remained on bail during the trial of the case. Their sentences of imprisonment were suspended by the trial Court so as to enable them to challenge the impugned judgment by filing the appeal. When the appellants were heard by the trial Court on the quantum of sentence, Ranbir had stated that there was none in his family to Crl. Appeal S-46-SB of 2007 -14- look after his ailing wife; Gaurav claimed that he was an Advocate since September 2006 while Anurag stated that he was a student and there was no one in his family to look after his aged parents. Taking into consideration the totality of the circumstances, the Court is of the view that it would be appropriate to set aside the sentences of imprisonment of the appellants and instead, release them on probation. Resultantly, the conviction of the appellants is maintained. Their sentences of imprisonment are set aside. Instead, they are ordered to be released on probation, subject to each one of them furnishing bonds in the sum of Rs.10,000/- with one surety of the like amount undertaking to keep peace and be of good behaviour for a period of one year and to receive sentence as and when called upon to do so. The amount of fine imposed upon the appellants by the trial Court, which had already been deposited by them be treated as costs of proceedings. The appeal is, accordingly, disposed of. ( T.P.S. MANN ) February 22, 2011 JUDGE satish