IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 312-SB of 2003 Date of decision: 29th January, 2010 Mohinder and another … Appellants Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. S.S. Narula, Advocate for the appellants. Ms. Hem Lata Balhara, Assistant Advocate General, Haryana for the State. Mr. Rahul Rathore, Advocate for the complainant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) This judgment shall decide three cases viz. (1) Criminal Appeal No.312-SB of 2003 titled ‘Mohinder and another v. State of Haryana’ (2) Criminal Appeal No.329-SB of 2003 titled ‘Om Parkash and another v. State of Haryana’ and (3) Criminal Revision No.1156 of 2003 titled ‘Subhash v. State of Haryana and others’. Case FIR No.316 dated 24.04.1998 was registered at Police Station Sadar Karnal under Sections 323, 324, 326, 452, 148 and 149 IPC. Offence under Section 307 IPC was added during the investigation. This FIR was lodged by Subhash PW-1. FIR is Ex.PU. A little background as to how the FIR came into existence is required to be noticed. Criminal Appeal No.312-SB of 2003 ASI Mohinder Singh, Incharge, Police Post Kunjpura falling within the jurisdiction of Police Station Sadar Karnal, on 24th April, 1998 received a ruqa from the Doctor of Govt. Hospital Karnal accompanied by medico legal report of Randhir Singh, Rampal, Sanjeev Kumar and Subhash. On receipt of ruqa, Mohinder Singh ASI reached Govt. Hospital, Karnal and recorded the statement of Subhash PW-1 on 24th April, 1998 at 7.15 p.m., on the basis of which, formal FIR was registered at Police Station Sadar Karnal on the same day at 7.30 p.m. In the FIR, nine persons, namely (1) Mohinder Singh (2) Om Parkash (3) Billa (Balwinder Singh, who was sent for trial to Juvenile Justice Board) sons of Balbir Singh, (4) Balbir Singh (5) Hari Singh sons of Surata Ram, (6) Ram Kumar son of Hari Singh (7) Om Pal son of Jai Singh (8) Karam Singh and (9) Hari Ram were named as accused. Complainant Subhash stated that he was resident of village Mundri falling within the jurisdiction of Police Post Kunjpura and was doing work of agriculture. His uncle’s daughter Kamla Devi was married to Darshan Singh son of Hari Singh about 20/21 years ago. Darshan Singh had expired after 1 ½ years of marriage. After the death of Darshan Singh, Kamla Devi gave birth to a female child and thereafter a Kareva marriage of Kamla Devi was performed with Ram Kumar. A male child was born to Kamla Devi from the loins of Ram Kumar. At the time of occurrence, the male child was aged nine years. One year before the occurrence, Ram Kumar remarried Kiran Bala and deserted Kamla Devi. Kamla Devi was living alone in village Mehmadpur. She was deprived of the land and maintenance. Kamla Devi field a suit for maintenance against Ram Kumar and her father-in-law Hari Singh. On 24th April, 1998 marriage of Kamla Devi’s daughter Sudesh was to be solemnized. Complainant Subhash accompanied by Isham Singh, Sanjeev Kumar, Rampal, Versa Singh, Kuldeep Singh and Randhir Singh reached at village Mehmadpur for 2 Criminal Appeal No.312-SB of 2003 handing over Bhat (customary gifts from maternal side) at 10.00 a.m. When they were sitting in the house of Kamla Devi, at that time, accused Mohinder Singh, Om Parkash and Billa armed with swords, Balbir Singh armed with Barchi, Hari Singh armed with Jelly, Ram Kumar armed with sword, Om Pal armed with Barchi, Karam Singh and Hari Ram armed with Lathis came at the house of Kamla Devi. They were accompanied by 3/4 more persons, who were also having Lathis in their hands. On arrival, the accused raised lalkara to teach lesson to the persons who had arrived from village Mundri for filing the case (regarding maintenance). The family members of the complainant ran towards the Baithak to hide themselves. The accused broke the door of the Baithak by pushing the same. Mohinder Singh gave a sword blow to Subhash, which hit on the palm of complainant’s left hand and Om Parkash gave sword blow on the palm of complainant’s right hand. Thereafter, Billa gave a sword blow straight on the right side of head of the complainant and Ram Kumar gave a sword blow on his right ankle. Ram Kumar gave another blow which hit on the right leg of complainant and Hari Singh gave a reverse blow from his Jelly on right thigh and another blow to the left leg of the complainant. Karam Singh gave two blows with Lathi, which hit on the right thigh and waist of complainant Subhash. Other persons also caused injuries with sword, Barchi, Lathi and Jelly. Injuries were also caused to Randhir Singh and his little finger was amputated. The family of the complainant raised noise of ‘Bachao Bachao’. Upon hearing, several persons attracted there and the accused decamped from the spot along with their weapons. Isham Singh arranged a vehicle and brought the injured to Govt. Hospital, Karnal, where they were admitted. In the above said FIR, accused were tried by the Court of Additional Sessions Judge (Adhoc), Karnal, who acquitted Hari Singh, Balbir, Hari Ram and Karam Singh, and other accused were found guilty of 3 Criminal Appeal No.312-SB of 2003 offence and they were sentenced by the trial Court. For ready reference, the table drawn by the trial Court, awarding sentence to the accused, can be reproduced as under: Name of accused Offence u/s Sentence awarded Mohinder 148 I.P.C. Rigorous imprisonment for 2 years 307 read with Section 149 I.P.C. R.I. for 3 ½ years and a fine of Rs.3,500/- and for non-payment of fine to undergo further R.I. for one and a half year. 326 read with Section 149 I.P.C. R.I. for 4 years and a fine of Rs.3500/- and for non-payment of fine to undergo further R.I. for one and half years. 325 read with Section 149 I.P.C. R.I. for 2 years and a fine of Rs.1000/- and for non-payment of fine to undergo further R.I. six months. 324 read with Section 149 I.P.C. R.I. for 1 year. 323 read with Section 149 I.P.C. R.I. for six months. Om Parkash 148 I.P.C. R.I. for two years 307 read with Section 149 I.P.C. R.I. for 5 years and a fine of Rs.3,500/- and for non-payment of fine to undergo further R.I. for one and a half year. 326 read with Section 149 I.P.C. R.I. for 3 years and a fine of Rs.3500/- and for non-payment of fine to undergo further R.I. for one and half years. 325 read with Section 149 I.P.C. R.I. for 2 years and a fine of Rs.1000/- and for non-payment of fine to undergo further R.I. for six months. 324 read with Section 149 I.P.C. R.I. for one year. 323 read with Section 149 I.P.C. R.I. for six months. Ram Kumar 148 I.P.C. R.I. for two years 4 Criminal Appeal No.312-SB of 2003 307 read with Section 149 I.P.C. R.I. for three and a half years and fine of Rs.3,500/- and for non- payment of fine to undergo further R.I. for one and a half year. 326 read with Section 149 I.P.C. R.I. for three years and a fine of Rs.3500/- and for non-payment of fine to undergo further R.I. for one and a half year. 325 read with Section 149 I.P.C. R.I. for two years and a fine of Rs.1000/- and for non-payment of fine to undergo further R.I. for six months. 324 read with Section 149 I.P.C. R.I. for one year. 323 read with Section 149 I.P.C. R.I. for six months. Om Pal @ Om Parkash 148 I.P.C. R.I. for two years 307 read with Section 149 I.P.C. R.I. for three and a half years and fine of Rs.3,500/- and for non- payment of fine to undergo further R.I. for one and a half year. 326 read with Section 149 I.P.C. R.I. for three years and a fine of Rs.3500/- and for non-payment of fine to undergo further R.I. for one and a half year. 325 read with Section 149 I.P.C. R.I. for two years and a fine of Rs.1000/- and for non-payment of fine to undergo further R.I. for six months. 324 read with Section 149 I.P.C. R.I. for one year. 323 read with Section 149 I.P.C. R.I. for six months. Mr. S.S. Narula, appearing for the appellants, has very fairly stated that in the present case, occurrence had taken place on 24th April, 1998. Prosecution had examined Dr.S.L. Verma, Medical Officer, Govt. Hospital, Karnal as PW-6. He examined Randhir Singh aged 25 years on 24th April, 1998 and found following injuries on his person: 5 Criminal Appeal No.312-SB of 2003 1. An incised wound 10 cm x 3 cm obliquely placed on the upper part of occipital region. Wound was bone deep and fresh bleeding was present. Bone was cut along the wound line obliquely. 2. There was an incised wound half circular in appearance 3 cm x 0.8 cm with flap hanging downwards. It was bone deep, present just below injury No.1. Fresh bleeding was present. X-ray of skull was advised for injuries No.1 and 2. 3. There was sharp cut amputation of right little finger at the level of middle of Ist phalanx. Clotted blood was present. 4. There was an incised wound of 2 cm x 0.5 cm obliquely placed over the ventral aspect of proximal interphalangeal joint of right middle finger. 5. There was an incised elliptical wound 1 cm x 0.5 cm on left antero superior iliac supine region. 6. There was a linear abrasion 5 cm x 0.3 cm obliquely placed on the lateral aspect of right deltoid region. 7. There was red contusion of size 20 cm x 1 cm present on the right side of mid line of the upper part of the back. 8. There was a linear abrasion 8 cm x 0.3 cm obliquely placed over the right lumber region. 9. An incised wound 1 cm x 0.5 cm on antero medial aspect of upper part of the right thigh. 6 Criminal Appeal No.312-SB of 2003 This witness had declared injury No.3 as grievous and after X- ray report, injury No.1 and 2 were also declared dangerous to life, as according to Dr.Sham Wadhwa, Radiologist PW-7, there was a fracture of parietal and occipital bones of skull on the right side. Dr. S.L. Verma PW- 6 also examined Rampal and found following injuries on his person: 1. There was two red contusions on the back over left scapular region (i) 10 cm x 1 cm (ii) abrasion 12 cm x 1 cm. These were parallel to each other. X-ray of the left shoulder with scapula was advised. 2. There was a linear abrasion of red colour of size 2 cm x 0.2 cm on the left shoulder joint. 3. There was red contusion with abrasion 5 cm x 1 cm over right scapular region. X-ray of right scapula was advised. 4. There was incised wound, elliptical in shape, horizontally placed over the junction upper 2/3 and lower 1/3rd of the right arm. The wound was muscle deep and clotted blood was present. 5. There was a linear abrasion of size 1 cm x 0.3 cm over ventral aspect of metacarpophalangeal joint of little finger of left hand. 6. An abrasion red in colour of size 2 cm x 1.5 cm on the lateral aspect of right knee joint. 7 Criminal Appeal No.312-SB of 2003 PW-7 Dr.Sham Wadhwa conducted X-ray examination of injury No.1 and 3 of Rampal and had found no fracture qua the injuries. Dr.S.L. Verma PW-6 also examined Sanjeev Kumar and found following four injuries on his person: 1. There was an irregular lacerated punctured wound 3 cm x 1 cm in the middle of upper half of left pinna, cartilage was exposed and fresh bleeding was present. 2. There was a painful swelling 3 cm x 3 cm over tip of left shoulder joint. 3. There was a reddish contusion of size 7 cm x 3 cm on dorsolateral aspect of middle of left forearm with abrasion 1 cm x 1 cm on lateral part with minimum bleeding present. X-ray of the left forearm was advised. 4. There were two red contusions of size 10 cm x 3 cm each present on the front of middle of left thigh making a sign of ‘V’. Injury No.3 was subjected to X-ray report. Dr.S.L. Chandna appeared as PW-8. He had examined Subhash on 24th April, 1998 at 12.10 p.m. and found following injuries on his person: 1. Incised wound on the palmer aspect of the left hand 11 cm x 1.5 cm x bone deep fresh blood was coming. Wound was obliquely placed from the wrist joint to the little finger. X-ray left hand and ortheo opinion was advised. 8 Criminal Appeal No.312-SB of 2003 2. Incised wound on the palmer aspect of right hand extending from the web of the first space to the middle of the pal, size 5 cm x .5 cm into muscle deep fresh blood was coming from the wound. X-ray right hand was advised. 3. Incised wound on the right side of the skull on the parieto occipital region 3 cm x .5 cm into muscle deep. Fresh blood was coming. X-ray skull was advised. 4. Incised wound on the back of right elbow joint size 5 cm x .5 cm into muscle deep. Fresh blood coming on wound. X-ray right elbow was joint. 5. Incised wound on the front of the right leg size 3 cm x .5 cm x skin deep. Fresh blood was coming. X-ray right leg was advised. 6. A bruise on the front of left thigh size 12 cm x 2.5 cm colour was red. 7. A bruise on the back of the right thigh size 10 cm x 2 cm colour was red. A bruise on the back of the left leg 6 cm x 2 cm. The colour was red. 8. Three bruises of variable size on the back side 5 cm x 3 cm. Colour red. The opinion regarding injury No.1 to 5 was deferred, as X-ray examination was advised. This witness also examined Kuldeep Singh and had found following nine injuries on his person: 9 Criminal Appeal No.312-SB of 2003 1. Incised wound on the anterior lateral aspect of right thigh size 3.5 cm x .5 cm into muscle deep. Fresh blood was coming. X-ray right thigh was advised. 2. Incised wound on the back of right upper arm size 4 cm x .5 cm into muscle deep. Fresh blood was coming on the wound. X- ray right upper arm was advised. 3. A bruise on the back of the left fore arm size 10 cm x 7 cm. The colour was red in the centre of the bruise. There was a lacerated wound on the size of .5 x .5 cm into skin deep. Fresh blood was coming. X- ray left forearm was advised. 4. Incised wound on the front of the left forearm size 1.5 cm x .5 cm into skin deep. Fresh blood was coming. 5. Incised wound on the back of left thumb 2 cm x .5 cm into muscle deep. Fresh blood was coming. 6. Abrasion area on the palmer aspect of the left palm in line with the little finger. Size 2 cm x 1.5 cm. Fresh blood was oozing. 7. Incised wound below the left knee joint 4 cm x .5 cm. Fresh blood was coming. 8. A bruise on the anterior lateral aspect of the left thigh 5 cm x 2.5 cm colour red. X- ray left thigh was advised. 10 Criminal Appeal No.312-SB of 2003 9. A bruise on the postero lateral aspect of the right leg below the knee size 8 cm x 2 cm. To take overall view, it will be pertinent to mention here that accused Mohinder had also suffered two injuries and he was examined on 24th April, 1998 at 7.30 p.m. by DW-1 Dr.Sunil Kumar Midda. Mohinder had suffered following injuries: 1. Incised wound with clean cut margins on the left palm at the base of middle finger measuring 3 x .2 cm and muscle deep wound was tailing off towards the palm clotted blood was present. 2. Incised wound 3 x .5 cm in the first web space of the left hand it was muscle deep and clotted blood was present. Both the injuries were simple in nature of within 25 hours duration and were caused by sharp edged weapon. Om Parkash son of Balbir Singh had suffered seven injuries. He was examined by Dr.Babu Ram Tanwar who appeared as DW-2, on 24th April, 1998 at Primary Health Centre, Kunjpura. Subhash injured appeared as PW-1 and reiterated what was stated in the FIR. Randhir and Kuldeep Singh appeared as PW-2 and PW-3 respectively and corroborated the testimony of Subhash PW-1. Hukam Singh ASI appeared as PW-4. At the relevant time, he was posted as Head Constable at Police Post Kunjpura. The concerned doctor had handed over two parcels to him regarding clothes of the 11 Criminal Appeal No.312-SB of 2003 injured. SI Karta Ram PW-5 had arrested the accused Balbir on 16th October, 1998. Baljit Singh SI PW-9 proved formal FIR Ex.PU, which was registered on the basis of statement Ex.PA made by Subhash PW-1. Satish Kumar ASI PW-10 had arrested Om Lal on 22nd July, 1998. The accused, at the time of arrest, had handed over Barcha, which was taken into possession vide memo Ex.PX/1. Mohinder Inspector PW-11 was the Investigating Officer. He proved various aspects of the investigation. Statement of the accused under Section 313 Cr.P.C. was recorded. According to Mr.S.S. Narula, appearing for the appellants, Mohinder and Om Parkash have raised plea of self defence and other accused pleaded innocence and stated that they were falsely implicated. In defence, besides two doctors, who have been mentioned above, accused examined DW-3 Dharam Singh and DW-4 Karambir. They had lend support to the defence version. Mr.S.S. Narula has stated that prosecution has not explained the injuries on the person of Mohinder and Om Parkash accused, therefore, the prosecution has not divulged the origin and genesis of the occurrence. Learned counsel has urged that on the day of occurrence, marriage of Kamla Devi’s daughter was fixed, festivities and celebrations were going on. In all probability, some words may have been exchanged and without any premeditation, on the spur of the moment, the occurrence had ensued. Counsel has submitted that since there was no previous litigation and invitation was also sent to the complainant party, therefore, common object of assembly or common intention of the accused cannot be construed as an offence falling under Section 307 IPC, but offence if any, will fall within the ambit of section 308 IPC. According to counsel as the occurrence was sudden affair, each accused can be convicted for individual liability. To state that the relations between the parties were 12 Criminal Appeal No.312-SB of 2003 cordial, Mr.Narula has drawn my attention to cross examination of Subhash, which reads as under: “It is correct that the expenditure was incurred for the marriage of Sudesh by Hari Singh. Prior to the marriage of Sudesh we were pressing upon Hari Singh and Balbir Singh to mutate land of the share of Darshan in the name of Kamla. It is correct that Hari Singh and Balbir Singh were saying that they are maintaining Kamla and her daughter Sudesh and they are also spending on the education of Sudesh and will bear the expenses of her marriage.” Counsel has submitted that it has come in the cross examination of Subhash PW-1 that when Kareva marriage of Kamla Devi was performed with Ram Kumar he was aged 5 years and there was a difference of about 15/16 years of age between Kamla Devi and Ram Kumar. Thus, it is stated that Hari Singh had no control over Ram Kumar, who had performed second marriage according to his own accord. As the marriage was incompatible, Hari Singh was looking after the family of Kamla Devi, therefore, the argument advanced that occurrence was a sudden affair, from the admissions of Subhash, noticed above is probable. Counsel has very fairly stated that since two of the accused have raised plea of self defence, there can be no denial that occurrence had taken place. As Subhash, Sanjeev, Kuldeep and Randhir had suffered injuries, therefore, their presence at the spot is stamped and cannot be doubted. It is contended that in case, taking into consideration the nature of injuries on the person of Mohinder and Om Parkash, this Court comes to the conclusion that no right of self defence has occurred to the accused party, then accused ought to be granted benefit of Exception 4 to Section 300 IPC, and paramateria, offence has to be construed under Section 308 IPC and not under Section 307 IPC, as in case where death has not occurred 13 Criminal Appeal No.312-SB of 2003 section 307 is lesser offence of 302 IPC and section 308 is lesser offence of 304 IPC. To controvert this argument, Mr.Rahul Rathore, appearing for the complainant, has stated that nature and number of injuries suffered by the complainant party conclusively prove that no right of self defence can be granted in favour of the accused. Counsel has further stated that the medical evidence corroborates the ocular version. Counsel for the complainant, referring to Exception 4 to Section 300 IPC, has stated that number of injuries suffered by the complainant party shows that accused party had taken undue advantage and therefore, the offence will not fall under Section 308 IPC. Ms. Hem Lata Balhara, Assistant Advocate General, Haryana, has contended that the testimony of PW-1 Subhash, PW-2 Randhir and PW-3 Kuldeep, aspires confidence and implicit reliance should be placed upon the same. I have given my thoughtful consideration to the rival submissions made by counsel for the parties. I am in agreement with the submissions made by Mr.Rahul Rathore, counsel for the complainant. Subhash, Randhir and Kuldeep, PW-1, PW-2 and PW-3 respectively, including Sanjeev and Rampal had suffered injuries. They arrived in the village of the accused. Their presence at the spot is stamped. They will be the last persons to falsely implicate the accused. The trial Court had already given benefit of doubt to four acquitted accused. Five persons from the complainant party were injured in the occurrence, whereas, on the side of accused only two persons Mohinder and Om Parkash were injured. A perusal of the injuries suffered by Mohinder and Om Parkash suggests that complainant party was under no legal obligation to explain these injuries. The injuries are abrasion, complain of pain and are simple in nature. The seat of injury is also on the non-vital parts of the body. 14 Criminal Appeal No.312-SB of 2003 Accused are not entitled to right of self defence. From number and nature of injuries, offence under Section 307 IPC is made out. At this stage, Mr. S.S. Narula, appearing for the appellants, has stated that Kamla Devi is still residing at Mehmadpur and she is being maintained by Hari Singh and his family. Even expenses of the marriage of Sudesh, daughter of Kamla Devi were borne by Hari Singh and his family. It is submitted that the occurrence, in the present case, is about 12 years old. The appellants have suffered mental agony and pain of protracted trial. There is complete peace prevailing in the village. After the present occurrence, no incident has taken place. The parties are living in complete amity, harmony and cordial relations are prevailing. Mr.Rahul Rathore, appearing for the complainant, has stated that even though no other incident has taken place, he is not in a position to vouchsafe the fact, whether the parties are maintaining cordial relations. However, the counsel has not denied that sending the appellants behind the bars may disturb the prevailing peace. This Court, while determining