IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.134-DB of 2007 Date of Decision: 12.11.2009 Paras Ram and others Appellants Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.J.S.Bedi, Advocate for the appellants in Criminal Appeal No.134-DB of 2007 Ms.Pratiba Yadav, Advocate for the appellants in Criminal Appeal No.196 -SB of 2007 Mr.R.S.Rai, Senior Advocate with Mr.D.S.Brar, Advocate for the complainant Mr.Ajay Kumar Gupta, Additional Advocate General, Haryana for the respondent …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.134-DB of 2007 titled as Paras Ram and others v. State of Haryana, Criminal Appeal No.196-SB of 2007 titled as Ishwar and another v. State of Haryana and Criminal Revision No.2263 of 2007 titled as Dhan Pal v. Paras Ram and others, arising out of the same judgment and order. For facility of reference, facts are being taken from Criminal Appeal No.134-DB of 2007. Appellant Nos.1 to 6 were sent to face trial on an allegation that they on 16.12.2004, caused injuries to Vijay Pal and others. Vijay Pal Criminal Appeal No.134-DB of 2007 succumbed to his injuries on 17.12.2004. In the final report, name of the appellant No.7 Braham and name of the appellants in Criminal Appeal No.196-SB of 2007 i.e. Ishwar and Arvind were put in column No.2. However, during trial, on an application moved under Section 319 Cr.P.C., they were also summoned, as additional accused, to face trial. By filing this appeal, the appellants have laid challenge to the judgment dated 20.1.2007, vide which, all the nine accused were found guilty for commission of offences under Sections 148, 323, 325, 304 Part I IPC read with Section 149 IPC. Hans Raj (A3), Inder Singh (A4), Balraj (A5), Abhey Singh (A6), Braham (A7) in this appeal and appellant Nos.1 and 2, namely, Ishwar and Arvind in Criminal Appeal No.196-SB of 2007 were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.3000/- only under Section 304 Part I IPC read with Section 149 IPC with a default clause. They were also convicted under Section 325 read with Section 149 IPC and were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/- only with a default clause. They were also found guilty and convicted for commission of offences under Section 323 IPC read with Section 149 IPC and sentenced to undergo rigorous imprisonment for a period of one year. Under Sections 148/149 IPC. Similarly, regarding Anil Kumar (A2) and Paras Ram (A1), following sentence was passed by the trial Court:- “Now considering the sentence to be awarded to Paras Ram and Anil accused it may be mentioned that Anil is a young man of 24 years of age and is a graduate. He is not a previous convict so a lenient view is taken against Anil accused. He is convicted u/s 304 part-I IPC read with Section 149 IPC and is sentenced to R.I. for ten years and to a fine of Rs.5,000/- 2 Criminal Appeal No.134-DB of 2007 (Rs.five thousand only), in default of payment of fine he shall further undergo R.I. for two years. Paras Ram accused is convicted u/s 304 Part-I IPC and is sentenced to R.I. for life and to a fine of Rs.5,000/- (Rs.Five thousand only), in default of payment of fine he shall further undergo R.I. for two years. Both Paras Ram and Anil accused are also convicted u/s 325 IPC read with Section 149 IPC are sentenced to R.I. for two years and to a fine of Rs.2,000/- (Rs.Two thousand only), in default of payment of fine they shall further undergo R.I. for six months. These accused namely Paras Ram and Anil are also convicted u/s 323 IPC read with Section 149 IPC and are sentenced to R.I. for one year. Both these accused namely Paras Ram and Anil are also convicted u/s 148 IPC read with Section 149 IPC and sentenced to R.I. for one year.” All the sentences were ordered to run concurrently. Hence these appeals. Criminal Revision has been filed for enhancement of sentence awarded to the appellants, named above. It is necessary to mention here that occurrence is not in dispute in this case, as the same is admitted by both the parties. It is only to be seen as to who was the aggressor or whether injuries were received in a sudden/ free fight between the parties. Case of the prosecution, as noted by the trial Court in paragraph No.2 of the judgment under challenge, is as under:- “Prosecution case in brief is that on receipt of medical ruqa dated 16.12.2004 Hawa Singh ASI alongwith Ved Parkash constable reached Civil Hospital Gurgaon, on 17.12.2004 and after obtaining the copy of the MLR, he 3 Criminal Appeal No.134-DB of 2007 recorded the statement of Dhanpal complainant who stated to the effect that he has got three sons namely Shiv Charan, Ram Charan, Vijay Pal and three daughters namely Dhanesh, Suresh and Munish. All his children are married. It is further alleged that on 16.12.2004 at about 8.30 PM, dog belonging to Paras Ram accused started barking on seeing the children of the complainant in the street. Consequently, Bhateri sister-in- law of the complainant asked Paras Ram as to why he has left the dog free in the street and he should have tied the same. On hearing this Paras Ram accused abused Bhateri. In the meantime, Dhan Pal complainant reached there and asked Paras Ram not to call bad names. At this Paras Ram accused who was holding Farsa in his hand hit the same on the head of the complainant. Thereafter, Braham, Balraj, Inder, Abhey, Hans Raj, Ishwar, Arvind and Anil came in the street on the spot armed with iron rods and lathis. They caused injuries to the complainant. It is further alleged that Balraj accused gave a lathi blow on the head of Batheri. Inder accused gave a pipe blow on the right shoulder whereas Brahm gave a lathi blow on the right shoulder of the complainant. When Ram Charan and Vijay Pal intervened and tried to rescue the complainant etc., then Abhey gave a lathi blow on the head of Ram Charan, Ishwar gave Jelly blow on the left hand, Hans Raj gave a lathi blow on the teeth, Arvind gave a lathi blow on the right shoulder and Paras Ram gave a farsa blow on the head of Vijay Pal. Anil also caused injuries on the head of Vijay Pal. Shiv Charan was also caused injuries on head and shoulder. 4 Criminal Appeal No.134-DB of 2007 On hearing the alarm Mukesh son of Raghbir and Rameshwar son of Balram came to the spot and rescued the complainant party from the clutches of the accused.” It is further case of the prosecution that when running away from the spot, the accused party threatened to kill the complainant and the others. In the FIR, it was stated at the end that the complainant has also caused injuries to the accused in self defence. Process of criminal law was set at motion on a statement made by Dhanpal (Ex.PJ), on the basis of which, formal FIR (Ex.PM) was recorded under Section 308 IPC etc. at 2.25 PM on 17.12.2004. Special report reached the Ilaqa Magistrate at 10.00 am on 18.12.2004. Defence version has also come on record, in DDR No.43 dated 16.12.2004 (Ex.DX), which was recorded at 9.30 PM, in the police station, at the instance of Paras Ram (A1). Relevant portion of the above said document reads thus:- Sr.No . Name of Informer Date 43 Paras Ram s/o Kishan Lal caste Ahir r/o Khoh aged 50 years Information about quarrel 16.12.2004 Time 10.30 PM registered. Column No.2 along with Arvind Kumar s/o Lekh Ram. Inder Singh s/o Siri Chand, Balraj s/o Sada Nand, Abhey Singh s/o Siri Chand came in police station and got registered the statement that I am a resident of above address and running a readymade shop at Manesar. Today I went to our village at Khoh after closing our shop. We have a pet dog. The dog was away in out side the street then Santosh w/o Siri Chand hit stone upon the pet 5 Criminal Appeal No.134-DB of 2007 dog. Time was about 8.30 PM I object it and said why hit the stone upon the dog then they started abusing on coming Har Pal s/o Bal Ram gave lathi blow on my right hand and another gave lathi blow on my left elbow when Arvind s/o Lekh Ram came there then Har Pal gave lathi blow on his head. Har Pal gave lathi blow on the hand of Inder s/o Siri Chand. Dhan Pal came there having rod in his hand who had caused injuries under the left eye of Inder Singh then Shiv Charan s/o Dhan Pal came there having jelly who had hit jelly blow on the back of Inder Singh then Balraj s/o Sada Nand came there on hearing the noise then Devinder s/o Har Pal gave lathi blow on hit left hand. Davinder gave lathi blow on the right thigh of Abhey Singh s/o Siri Chand. Sat Pal s/o Har Pal gave lathi blow on the right side body of Abhey Singh then Anil s/o Ramanand came there for rescuing then Ramu s/o Dhan Pal gave lathi blow on the fingers of his left hand. We raised alarm “Mar Diya Mar Diya” then Ram Mehar s/o Ghamandi caste Ahir r/o Khoh and Kamal Singh s/o Raj Singh came on the spot. They rescued us from the culprits otherwise they have given more injuries to us. They run away from the spot with their weapons lathies, rod etc. We also inflicted injuries upon them in our safety. I came to police station with the company of Arvind Kumar, Inder Singh, Balraj, Abhey Singh, Anil Kumar. Action will be taken.” It has also come on record that the constable took some of the appellants named above, for medical examination. 6 Criminal Appeal No.134-DB of 2007 It is necessary to mention here that in the meantime, at about 9.30 pm on 16.12.2004, the complainant party reached the hospital and they were examined by Dr.Subhash Sindhu (PW1), Medical Officer, Government Hospital, Gurgaon, who found the following injuries on the person of Vijay Pal:- “1. A lacerated wound 2 c.m. x 0.5 cm on right side of skull in mid part right to the mid line. 2. Second lacerated wound 1.5 cm x 0.5 cm right to injury no.1 X-ray skull advised. Alongwith surgeon’s opinion.” Injuries were the result of blunt weapon. Taking note of serious condition of the patient, he was referred to Safdarjang Hospital at Delhi for further treatment. Thereafter, Dhanpal complainant was examined and following injuries were found at his person:- “1. A lacerated wound of 4.5 cm x 0.5 cm on the right side of mid-line in mid part of skull. Advised x-ray skull and advised surgeon’s opinion. 2. Pain in right shoulder. Advised x-ray right shoulder.” Dr.B.B.Aggarwal (PW2) conducted X-ray examination on Dhanpal and found fracture of outer end of clavicle and fracture of acromion process of scapula. Injuries were the result of blunt weapon. Bhateri was also medico legally examined and following injuries were found at her person:- “1. A lacerated wound of 2.5 cm x 0.5 cm on the right side of skull on scalp in front of parietal area with fresh bleeding.” The injury was found caused by a blunt weapon. 7 Criminal Appeal No.134-DB of 2007 Ram Charan son of Dhanpal was also medico legally examined. It was found that he was conscious with foul smell coming from his mouth. Following injury was found at his person:- “1. A lacerated wound of 3.5 cm x 0.5 cm on skull and scalp. With fresh bleeding on right side of mid line in parciatal area of skull. Advised x-ray. Advised surgeon’s opinion. 2. A lacerated wound of 1 cm x 0.2 cm on left thumb on dorsal aspect with bleeding. 3. Lower two inciser teeth were missings with solets raw and no injury on lower lip, upper inciser was also painful. Advised dental surgeon’s opinion. 4. Pain right shoulder. Advised x-ray right shoulder.” Dr.B.B.Aggarwal (PW2) conducted X-ray examination on Ram Charan and found fracture of outer end of right clavicle. To this witness also, injuries were stated to have been caused by a blunt weapon. This witness was also examined by Dr.Varinder Singh (PW9), a dental surgeon and it was found that lower right and left central incisors were missing from two sockets and the gum margins were lacerated and swollen. As per evidence on record, the appellant party was also medico-legally examined by above named witness in the midnight at about 12.05 pm on 17.12.2004. On the person of Balraj (A5), following injuries were found:- “1. Abrasion on left wrist on ulner side dorsul aspect of 3 cm x 0.5 cm reddish in colouration.” 8 Criminal Appeal No.134-DB of 2007 Injury was declared simple. Arvind appellant No.2 in Criminal Appeal No.196-SB of 2007 was medico-legally examined and following injuries were found at his person:- “1. Patient came with history of assault. A lacerated wound of 2.5 cm x 0.5 cm on scalp on left two mid line in parciatal area in central part with fresh bleeding and advised x-ray skull and surgeon’s opinion.” Upon Inder Singh (A4), following injury was found by PW1:- “1. A lacerated wound of 2.5 cm x 0.5 cm on left who mid line in mid part in parciatal area. Advised x-ray skull and surgeon opinion. 2. An abrasion of 6 cm x 0.1 cm on right side of lumber area of back, reddish in colouration.” Injuries were the result of blunt weapon. Paras Ram (A1) was also Medico-legally examined and following injuries were noted at his person:- “1. Two abrasions on right hand postedierly above little finger on metacarpal. Second abrasion was 1 cm x 1 cm just below the above injury, reddish in colouration. Inj. No.2: Swelling on left elbow on lateral aspect.” On the person of Anil Kumar (A2), following injury was found:- 1. Abrassion 0.5 cm x 0.5 cm on left hand knuckle of middle finger reddish in colouration.” Abhey Singh (A6) was also medico-legally examined. He complained of pain in right thigh and leg with no external injury mark 9 Criminal Appeal No.134-DB of 2007 thereon. Injury was declared simple in nature and was the result of blunt weapon. It has come on record that when post-mortem examination was conducted on the dead body of Vijay Pal, besides the injuries mentioned earlier, more injuries were found, however, the trial Court has discarded those injuries, in view of that, it is not necessary to give further detail regarding that. The investigating officer ASI Hawa Singh (PW15), on receipt of intimation from the hospital, came into action. He moved an application (Ex.PU), seeking opinion of the doctor regarding fitness of Dhanpal (PW6), Ram Charan (PW8) and Bhateri (PW), to make the statement. They were declared fit to make the statement. In the meantime, Vijay Pal had already been sent to Safdarjang Hospital Delhi for further treatment. ASI Hawa Singh went there, however, on an application moved, Vijay Pal was declared unfit to make the statement. Shiv Charan, who was also referred to Safdarjang Hospital was not found at his bed. The investigating officer went to the spot, got prepared rough site plan (Ex.PY) at the spot with correct marginal notes. In the meantime, he received intimation regarding death of Vijay Pal. He went back to Safdarjang Hospital at Delhi, prepared inquest report of the dead body and sent it for post-mortem examination. He also added offence under Section 302 in the FIR. Some of the appellants were arrested on 21.12.2004. On disclosure statements made, weapon of offence i.e. sticks were recovered from some of the accused. Further investigation was undertaken by SI Sanjeev Kumar (PW14) and during investigation, he found Braham (A7) and appellants in Criminal Appeal No.196-SB of 2007 innocent. On 21.12.2004, he arrested Paras Ram (A1) and Anil Kumar (A2), Hans Raj 10 Criminal Appeal No.134-DB of 2007 (A3) and one more accused. On interrogation, weapon of offence i.e. Farsi and sticks etc. were recovered. This witness has also stated that during investigation three persons, mentioned earlier, were found innocent. To say so, reference was made to the statements made by Mukesh, the independent witness and other respectables of the village. On completion of investigation, charge sheet was presented against the six appellants. Names of three were put in column No.2, who were also subsequently summoned to face trial. Charge sheet was prepared against them, to which, they pleaded not guilty and claimed trial. The prosecution produced 16 witnesses and also brought on record documentary evidence to prove its case. The trial Court, on appraisal of evidence, convicted and sentenced the appellants/accused, as found mentioned in earlier part of this order. Counsel for the appellants has vehemently contended that occurrence had taken place in front of house of Paras Ram (A1). The complainant party was the aggressor, they came fully armed to cause injuries to the accused party and in self defence, injuries were caused to some members of the complainant party. One injury proved to be fatal, which led to death of Vijay Pal. In the alternative, he argued that at the maximum, it was case of a sudden fight between the parties. There is no question of any common intention/ object, as has been held by the trial Court, to cause injuries to the complainant party by the appellants. By making reference to the contents of FIR (Ex.PM), DDR No.43 (Ex.DX) and the special report, counsel argued that FIR was recorded at a belated stage and in the meantime, padding was done by the prosecution in its story. The appellants were falsely implicated. Counsel further argued that the prosecution has failed to explain injuries received by the appellants, benefit of which, should be given to them and they be acquitted of the charges 11 Criminal Appeal No.134-DB of 2007 framed against them. He further argued that the FIR was MLR oriented, specific injuries were attributed to all the appellants, with a view to frame them in this false case. Presence of Braham (A7) and Ishwar appellant in Criminal Appeal No.196-SB of 2007 at the spot was not proved at all. Arvind appellant in Criminal Appeal No.196-SB of 2007 was only an intervener and he also received injuries when he tried to separate the parties. He prayed that appeal be allowed, impugned judgment and order be set aside and the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by counsel for the complainant and also the State counsel. By making reference to the statements made by the prosecution witnesses, they argued that the appeals have no substance and be dismissed. It was further prayed that revision be allowed and punishment awarded to A2 to A7 be enhanced. It is a case where occurrence has been admitted by both the parties. Now, it is to be seen as to what was the genesis of occurrence. Whether it was pre-planned or a sudden fight. Contention of counsel for the appellants that the occurrence had taken place in front of house of the appellants, appears to be correct and justified. When we look into contents of rough site plan (Ex.PY) and scaled site plan (Ex.PH), it comes out that the occurrence had taken place in the street outside the house of Paras Ram (A1). It has also been so stated by SI Sanjeev Kumar (PW14), who has categorically stated that the occurrence had taken place in front of house of Paras Ram. It has also come on record that house of the complainant party is also situated nearby, say at a distance of about 50-70 yards. Admittedly, there was no existing enmity between the parties. No motive, to cause injuries to each other, is established on record. As per 12 Criminal Appeal No.134-DB of 2007 case of prosecution, occurrence had started when a dog belonging to Paras Ram (A1) started barking in the street, at the children of the complainant party. Some altercation took place, which led to opening of attack by the appellants upon the complainant party. It is also coming out that objection regarding presence of dog was the cause for fight between the parties. In view of above, it can be said that the attack by either of the parties, was not pre-planned. Contention of counsel for the appellants that there is a delay in recording the FIR also appears to be correct and justified. Occurrence had taken place at about 8.30 pm on 16.12.2004. Complainant party reached the hospital at about 9.30 pm. Vijay Pal deceased, after examination, was referred to Safdarjang Hospital Delhi for further treatment. On receipt of intimation, the investigating officer ASI Hawa Singh (PW15) also reached the hospital. The complainant and two injured were declared fit to make the statement, however, their statements were not recorded for reasons best known to the investigating officer. Their statements were recorded only on 17.12.2004 at 1.30 pm. Special report reached the concerned Magistrate on 18.12.2004 at 10.00 am. For late delivery of special report, explanation given by the investigating officer does not inspire confidence. To the contrary, accused party reached the police station at 9.30 and at the instance of Paras Ram (A1), DDR No.43 was recorded on 16.12.2004. They were sent for medical examination in the company of a constable and thereafter, they were medico-legally examined. The investigating officer has failed to give any reasonable explanation for delayed recording of FIR. Furthermore, the investigating officer ASI Hawa Singh (PW15) has admitted that when statement was recorded he had seen the medico legal reports of all the injured and had made reference to the same when 13 Criminal Appeal No.134-DB of 2007 recording the FIR. In view of above and for the reasons to be recorded later on, it can safely be said that the prosecution made additions in naming the alleged assailants and names of Braham, Ishwar, Arvind were added as accused, after consultation. Not only this, it is apparent from the record that injuries attributed to them were also attributed to the remaining appellant-accused. It has also come on record that during investigation, as per statements given by the independent witnesses, whose names found mentioned in the FIR, two were not present at the spot and third was only an intervener who made an attempt to separate the parties. Defence evidence also inspires confidence in that regard. In view of above, it can safely be said that participation of above named three accused was not proved on record. They were also declared innocent during investigation and their names were put in column No.2 of the final report. Thereafter on an application made by the Public Prosecutor, they were made to face trial and were convicted. In FIR, it was vaguely said that at the time of occurrence, injuries were received by the appellant-accused, however, during trial, it was said that to save themselves, the complainant party threw stones at the accused party. As per medical evidence on record, Ram Charan of the complainant party, was smelling alcohol when he was medico legally examined. Batheri and Ram Charan were not brought in the witness box. None of the independent witnesses was examined during trial. It has also come on record that weapons of offence were not sealed and were not sent to the Forensic Science Laboratory for examination to detect presence of human blood thereon. It has also come on record that the deceased Vijay Pal was got discharged from the hospital and when he was being taken to 14 Criminal Appeal No.134-DB of 2007 some other institute, may be a hospital, he died on the way and his body was brought back