IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.285-DB of 2002 Date of decision: 28.01.2008 Mohinder and others. -----Appellants. Vs. The State of Haryana. -----Respondent. AND Criminal Appeal No.603-SB of 2002 Lal Singh and others.. -----Appellants. Vs. The State of Haryana. -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S.D. ANAND Present: Mr. Vinod Ghai, Advocate (In Crl.A.No.285-DB of 2002) & Mr. Pawan Malik, Advocate (In Crl.A.No.603-SB of 2002) for the appellants. Mr. Kulvir Narwal, Addl.A.G., Haryana. ----- Adarsh Kumar Goel, J. This order will dispose of Criminal Appeal No.285-DB of 2002 filed by Mohinder, Sultan, Balbir Singh and Samey Singh and Criminal Appeal No.603-SB of 2002 filed by Lal Singh, Deep Chand, Nanak Chand and Satbir. Criminal Appeal No.285-DB of 2002 & Criminal Appeal No.603 -SB of 2002 The appellants in Criminal Appeal No.285-DB of 2002 are aggrieved by their conviction, inter-alia, under Section 302 IPC, for which they have been sentenced to undergo life imprisonment. FIR was lodged by Satbir Singh (PW-5) nephew of deceased Duli Chand. According to him, followers of accused Balbir Singh used to occupy part of the school building causing inconvenience to the students, to which the deceased had raised objection. According to Satbir (PW-5), on 29.7.1996 at 10-00 A.M., Balbir Singh accused, who used to give discourse, came alongwith Mohinder, Sultan and Samey Singh co-accused armed with lathies and in pursuance of their common intention, they assaulted Duli Chand. Balbir Singh gave lathi blow on the head above the left eye of deceased Duli Chand, Sultan gave lathi blow on the chin of Duli Chand, Mohinder gave lathi blow on the head of deceased, Samey Singh gave lathi blow on the head of Satbir Singh. Lal Chand (PW-4) and Nanak Chand came to rescue the injured, on which the accused ran away. Duli Chand was taken to the hospital. Statement of Satbir Singh was recorded by Lal Singh, SI (PW-7) at Safdarjang Hospital, Delhi. Lal Singh went to the spot and prepared site plan and sought opinion of the Doctor about fitness of Duli Chand to make statement. Duli Chand was not fit to make statement. PW-8 Siri Niwas conducted further investigation and on receiving information that Duli Chand died on 25.9.1996, he prepared inquest report and got post-mortem examination conducted. The post-mortem examination was 2 Criminal Appeal No.285-DB of 2002 & Criminal Appeal No.603 -SB of 2002 conducted by Dr. Allexender F. Khaka (PW-6) on 26.9.1996. He found following ante mortem injuries “1. Swelling on the right side top of head vertically placed with a depressed area on palpation. 2. Healing lacerated wound on the left upper corner of forehead. Size 1.5 cm x 2.2 cm x.2 cm. 3. Healing lacerated wound on the chin area of left side of face. Size 1.5 cm x. 2 cm x. 2 cm. According to him, death was due to cranio cerebral injuries caused by blunt force impact with a hard and blunt weapon/object. Injury No.1 was sufficient to cause death in the ordinary course of nature. All the above mentioned injuries were ante mortem in nature and caused by blunt and hard object. After investigation, the appellants except Balbir Singh alongwith one co-accused Lal Ram were sent up for trial. Balbir Singh was later on summoned under Section 319 Cr.P.C. Lal Ram was acquitted but the appellants were convicted. The prosecution examined PW-1 Ved Parkash, ASI, PW-2 Dr. Pardeep Sharma, PW-3 Sugan Singh, HC, PW-4 Lal Chand, PW-5 Satbir, PW-6 Dr. Allexender F. Khaka, PW-7 Lal Singh, SI and PW-8 Siri Niwas, ASI. The accused denied the prosecution allegations. The reasons given by the trial Court can be summed up as under:- (i) Since name of Lal Ram was not mentioned in the FIR, his linking to unnamed person was not free from doubt, 3 Criminal Appeal No.285-DB of 2002 & Criminal Appeal No.603 -SB of 2002 particularly when role attributed to Lal Ram was not corroborated by medical evidence. (ii) Version given by PW-4 Lal Chand and PW-5 Satbir was reliable and natural. It was proved that Mohinder and Balbir caused lathi blows to Duli Chand, Sultan caused lathi blow on the chin of Duli Chand and Samey Singh caused lathi blow on the head of Satbir. They had common intention. Death of Duli Chand, though after two months, was as a result of injuries caused. The accused fully knew the result of their acts. (iii) Though in his statement, PW-5 Satbir mentioned that members of complainant party also caused injuries to the accused party, precise information was withheld. Injuries on accused were not explained. However, non-explanation of the said injuries did not affect the veracity of version given by PW-4 Lal Chand and PW-5 Satbir. We may notice that Lal Chand, Deep Chand, Nanak Chand and Satbir were tried in cross case simultaneously and by separate judgment of the same date, they have been convicted under Section 325/323/34 IPC and awarded sentence of 2½ years apart from other sentences, giving rise to Criminal Appeal No.603-SB of 2002. Separate trial was taken up on the statement of Balbir Singh, who appeared as PW-2, to the effect that on 29.7.1996, Lal 4 Criminal Appeal No.285-DB of 2002 & Criminal Appeal No.603 -SB of 2002 Chand asked disciples of Balbir Singh to go out of the premises of the school. Mohinder (PW-3) asked Lal Chand not to abuse people and after 2-3 days, the complainant will shift the seat of his temple. Lal Chand armed with a lathi, Deep Chand armed with an axe, Duli Chand, Nanak Chand, Satbir and Mohan Lal armed with lathies came, on which the complainant party proceeded towards their house. The accused opened attack. Deep Chand gave lathi blow on the little finger of left hand and another blow on the right knee of Balbir. Samey Singh came to rescue him. In exercise of right of private defence, they caused injuries to the accused party. Dr. Pardeep Sharma (PW-4) examined the injured Sultan Singh, Balbir Singh and Mohinder. Lal Singh (PW-5) recorded statement of Balbir Singh at Primary Health Centre, Tauru. After investigation of cross-case, the accused were challaned. In support of the cross-case, the prosecution examined PW-1 Ram Chander SI, a formal witness, PW-2 Balbir Singh, PW-3 Mohinder Singh, PW-4 Dr. Pardeep Sharma, who medically examined the injured, PW-5 Lal Singh, Investigating Officer and PW-6 Jaibir Singh, Investigating Officer, apart from other evidence. The injuries found on the person of Sultan Singh, Balbir Singh and Mohinder Singh were as under:- Injuries on the person of Sultan Singh:- “1) An abrasion on the mild portion of the top of skull on left side. Size being 2 cm x 1.5 cm. X-ray of the skull was advised. 2) A horizontally placed tram-track pinkish contusion on the back of right shoulder 6 cm x ½ cm in size. 5 Criminal Appeal No.285-DB of 2002 & Criminal Appeal No.603 -SB of 2002 3) A horizontally placed tram-track contusion on the outer back side of trunk on right side 10 cm x ½ cm in size and ½ cm apart. The part showed defused swelling. X-ray of the chest was advised.” Injuries on the person of Balbir Singh:- 1) A lacerated wound on the top of left little finger 1.5 cm x ¼ cm x ¼ cm in size. He digit shows dis- figerment. X-ray of the part was advised. 2) A horizontally placed pinkish contusion on the front of right knee joint 6 cm x 1.5 cm in size.” Injury No.1 was declared to be grievous. Injuries on the person of Mohinder Singh:- 1) An obliquely placed lacerated wound 1.5 cm x ½ cm x ¼ cm on the top of middle of fore-head. 2) A small abrasion on the back of knukle of right middle finger. The part showed defused swelling and x-ray was advised. 3) A horizontally placed lacerated wound 1 cm x ½ cm x ¼ cm on the outer side of lower part of left forearm.” The trial Court accepted the version of PW-2 Balbir Singh and PW-3 Mohinder Singh and held that Deep Chand was proved to have caused two injuries to Balbir Singh and Lal Singh, Satbir and Nanak were proved to have caused one simple each to PW-3 Mohinder, while Mohan Lal was not proved to have caused any injury. 6 Criminal Appeal No.285-DB of 2002 & Criminal Appeal No.603 -SB of 2002 The prosecution failed to explain injuries to Duli Chand deceased. The trial Court concluded:- “...The members of both the parties caused injuries to each other and the prosecution has not been able to prove that the accused persons were the aggressors. In the same way the defence has not been able to prove that the members of the accused party caused the injuries to members of the complainant party, in self defence...” We have heard learned counsel for the parties and perused the record. Learned counsel for the appellants in Criminal Appeal No.285-DB of 2002 filed by Mohinder Singh etc., submitted that since both the parties participated in the occurrence which took place all of a sudden on account of alleged encroachment by followers of Balbir Singh who used to come and sit in a part of school premises to hear his discourse, there was no prior plan or pre-meditation and both the parties had caused injuries to each other. In these circumstances, it was not possible to ascertain which party was the aggressor. Exception 4 of Section 300 IPC will be attracted and all the accused will be responsible for their individual acts. Since exception 4 will be attracted, the offence on account of death of Duli Chand will be of culpable homicide not amounting to murder, for which responsibility will be of the person who caused fatal injury i.e. Mohinder Singh son of Raghbir. In absence of common intention, Balbir, Sultan and Samey Singh will not be liable for the death of Duli Chand and will be liable only for the injuries caused by them. It was stated that Balbir 7 Criminal Appeal No.285-DB of 2002 & Criminal Appeal No.603 -SB of 2002 Singh was declared innocent during investigation and has remained in custody for about 4½ years, Sultan Singh remained in custody for about five years. We find merit in the contention. It is clear that it was a case of sudden fight where both the parties participated and it was not possible to hold as to which party was aggressor. In these circumstances, all the accused will be responsible for their individual role. Accordingly, we partly allow Criminal Appeal No.285-DB of 2002 and alter conviction of appellant Mohinder to Section 304-I IPC and sentence him to undergo RI for ten years and to pay compensation of Rs. 2 lacs to the heirs of deceased Duli Chand. We set-aside the conviction of appellants Sultan, Balbir Singh and Samey Singh for murder of Duli Chand under Section 302/34 IPC but uphold their conviction and sentence under Section 323/34 IPC. We also uphold conviction of the appellants in Criminal Appeal No.603-SB of 2002 i.e. Lal Singh, Deep Chand, Nanak Chand and Satbir, but reduce their sentence to the period of sentence already undergone by them. In all other respects, the judgment of the trial Court is affirmed. The appeals are disposed of. ( ADARSH KUMAR GOEL ) JUDGE January 28, 2008 ( S. D. ANAND ) ashwani JUDGE 8