In the High Court of Punjab and Haryana at Chandigarh ...... (1) Criminal Appeal No.316-DB of 1998 ..... Date of decision:21.7.2008 Rumal son of Likhi and others ...Appellants v. State of Haryana ...Respondent Coram: Hon'ble Mr. Justice S.S. Saron Hon'ble Mr. Justice K.C. Puri Present: Mr. R.S. Cheema, Senior Advocate with Mr. Jasdev Singh Mehndiratta, Advocate for the appellants. Mr. H.S. Sran, Additional Advocate General, Haryana for the respondent-State. Mrs. Baljit Mann, Advocate for the complainant. ...... (2) Criminal Revision No.809 of 1998 ..... Sanjay ...Petitioner v. Rumal son of Likhi and others ...Respondents Present: Mrs. Baljit Mann, Advocate for the petitioner. Mr. R.S. Cheema, Senior Advocate with Mr. Jasdev Singh Mehndiratta, Advocate for the respondents. ...... S.S. Saron, J. This order will dispose of Criminal Appeal No.316-DB of 1998 Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [2] and Criminal Revision No.809 of 1998 as both arise out of the same judgment and order dated 11.6.1998 whereby the appellants have been convicted and the order dated 12.6.1998 whereby they have been sentenced to life imprisonment. The appellants in the criminal appeal have prayed for setting aside the impugned judgment of conviction and order of sentence that has been passed against them by the learned trial Court. In the revision petition a prayer has been made by the complainant for enhancement of the sentence of life imprisonment to that of capital punishment. A further prayer is made for adequately enhancing the amount of fine and on its recovery it be paid to the complainant as compensation. The FIR (Ex.PJ/2) has been registered in the case on the statement of the complainant Sanjay (PW-3). It is stated by him that he is a resident of Tigaon, Police Station Chhainsa. He had come to Village Pali four-five days ago to meet his maternal uncle and maternal grand-father. His maternal uncle Bhup Singh (deceased) owned a mine in the Pali hillock. Rumal (appellant No.1) also owned a mine adjacent to the mine of Bhup Singh (deceased). The maternal uncle of the complainant, namely, Bhup Singh (deceased) used to visit the mine daily in the morning for the purpose of quarrying stones. On the day of the occurrence i.e. 14.4.1997 as usual at about 7.00 a.m. the maternal uncle-Bhup Singh of the complainant had gone to his mine. The complainant along with his other maternal uncle-Hukam Singh (PW-4) at about 9.00 a.m. had also gone there. When they reached, Rumal, Ram Dhan son of Rumal, Rewati, his son Bijji, Kishan Pal, Ram Rattan and Shyambir (appellants) armed with iron rods and lathis were Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [3] beating Bhup Singh, the maternal uncle of the complainant. When the complainant and his other maternal uncle Hukam Singh (PW-4) reached the mine, then Bijji (Vijay Pal-appellant) gave a blow with the rod that he was carrying on the head of Bhup Singh. Ram Dhan and Ram Rattan (appellants) gave lathi blows on his hands. The accused seeing the complainant and Hukam Singh (PW-4) coming raised a `Lalkara' to kill him (complainant) and not to spare him. When the complainant rushed to rescue his uncle Bhup Singh, Rewati, Kishan Pal and Shyambir (appellants) gave lathi blows on the waist and feet of Bhup Singh. When the complainant intervened, then Bijji (Vijay Pal-appellant) gave a blow with the iron rod on the left side of his (complainant's) head. Ram Rattan gave a lathi blow on the left hand of the complainant and Kishan Pal gave a lathi blow on his right knee. Hukam Singh (PW-4), the maternal uncle of the complainant raised an alarm for help. On the alarm raised by them, the accused ran away. A day earlier to the occurrence Bhup Singh, the maternal uncle of the complainant had asked Rumal, Bijji (Vijay Pal-appellant) etc. not to operate the mining operations in the area towards his mine. Due to this grudge the accused in collusion with one another caused injuries to Bhup Singh. When they were to take Bhup Singh to B.K. Hospital for treatment he died at the spot. On the statement of Sanjay (PW-3)-complainant the criminal proceedings were initiated. Sat Narain, SI/SHO (PW-7) recorded that on receipt of telephonic message from B.K. Hospital, Faridabad, he along with other Police officials reached there in a Government van. After obtaining opinion of the doctor, the statement of Sanjay-complainant (PW-3) was recorded Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [4] which was read over to him who after admitting the same to be correct signed it in English. In terms of the said statement, offences under Sections 148, 149, 323 and 302 Indian Penal Code (`IPC' – for short) were found to be made out. The writing was sent through Constable Sube Singh No.510 to Police Station for registration of a case. After registration the case number, it was submitted, be informed. The SI/SHO proceeded to B.K. Hospital for conducting the investigation. Special reports it was recorded be sent to the concerned officers. The Police investigated the case and filed the charge-report (challan) in the Court of learned Judicial Magistrate Ist Class, Faridabad on 16.7.1997. The learned Magistrate keeping in view the fact that an offence under Section 302 IPC had also been alleged, vide order 22.7.1997 committed the case for trial to the Court of learned Sessions Judge, Faridabad. The case on commitment was listed for consideration of charge on 5.8.1997. On the said date, the learned Sessions Judge, Faridabad passed an order to the effect that the accused Sombir (sic. Shyambir), Ram Dhan and Rewati had not been challaned and had been mentioned in column No.2 of the report submitted by the Police under Section 173 of the Code of Criminal Procedure (`Cr.P.C.' - for short) although their names figured in the FIR. It was, therefore, ordered to issue notices to them also through bailable warrants in the sum of Rs.2,000/- each to know whether a prima facie case of murder was also made out against them or not. The learned Sessions Judge, Faridabad thereafter vide order dated 3.12.1997 found that a prima facie case for the offence under Section 302 IPC was made out against accused Vijay Pal and under Sections 148, 302, 325 and 149 IPC Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [5] against all the accused. They were charged accordingly. The prosecution in order to prove its case examined Dr. C. Paul (PW-1), who conducted post- mortem examination of Bhup Singh (deceased), Dr. Prem Kumar Maghu, B.K. Hospital, Faridabad (PW-2), who examined the complainant Sanjay (PW-3). Sanjay-complainant was examined as PW-3. Hukam Singh, the maternal uncle of the complainant was examined as PW-4. Neeraj Kumar Patwari who had prepared the site plan Ex.PO according to Aks Shizra was examined as PW-5. Ram Avtar, ASI (PW-6) was examined being a member of the Police party headed by SI Sat Narain (PW-7). Sat Narain, SI/SHO (PW-7) was also examined. Besides, the examination of the witnesses, documents were also tendered in evidence. The statements of the accused were recorded in terms of Section 313 Cr.P.C. in which the substance of the evidence appearing against them were put to them. The accused stated that they were innocent and had been falsely implicated. The learned trial Court after considering the evidence and material on record held that the accused Rumal, Kishan Pal, Vijay Pal, Ram Dhan, Shyambir, Rewati and Ram Rattan on 14.4.1997 at 9.00 a.m. in the area of Village Pali were members of an unlawful assembly and were armed with various deadly weapons like iron rods etc. They in furtherance of their common intention of their unlawful assembly committed the murder of Bhup Singh and also caused simple injuries to Sanjay-complainant. It was held that Vijay Pal accused was also charged for the offence under Section 302 IPC but there was no medical evidence on the file to show that Bhup Singh had died only due to the head injuries. It had been alleged that Vijay Pal accused had caused head injury to Bhup Singh with an iron rod. Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [6] According to Dr. C. Paul (PW-1) the injuries to the brain and lungs were, it was observed, the main injuries which led to the death of Bhup Singh. Therefore, it was observed that Vijay Pal has to be held to be guilty with the aid of Section 149 IPC and not under Section 302 IPC alone. Accordingly, the accused (appellants) were held guilty and convicted for the offences under Sections 148, 302 and 149 IPC and also Sections 323 and 149 IPC. The accused were sentenced to undergo one year rigorous imprisonment for the offence under Section 148 IPC and to life imprisonment and fine of Rs.1,000/- each for the offences under Sections 302 and 149 IPC. In default of payment of fine the defaulters were to further undergo one year rigorous imprisonment. The accused were sentenced to undergo six months rigorous imprisonment for the offences under Sections 323 and 149 IPC. However, all the sentences were ordered to run concurrently. Shri R.S. Cheema, learned Senior Advocate appearing with Shri Jasdev Singh Mehndiratta, Advocate for the appellants has contended that there is considerable delay in the lodging the FIR, inasmuch as, the occurrence, it has been alleged, was at 9.00 a.m. on 14.4.1997; whereas the statement (Ex.PJ) of Sanjay-complainant (PW-3) was recorded at 3.30 p.m. Thereafter, the FIR was recorded at 3.50 p.m. The special report reached the Illaqa Magistrate at 1.00 p.m. on 15.4.1997 i.e. on the next day. This according to the learned senior counsel gave sufficient time to the prosecution to deliberate and exaggerate the case by falsely implicating some of the accused. It is further contended that the delay in the case is not innocuous as the first version of Hukam Singh (PW-4) was recorded at 10.00/10.30 a.m. on 14.4.1997 and this is so mentioned in his deposition Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [7] while appearing as PW-4. The same, it is contended, has wrongly been discarded. It is further contended that in any case keeping in view the nature of injuries that had been caused, the offence would not be one which can be said to be made out under Section 302 IPC. This is moreso for the reason that no intention of guilt can be attributed to the accused. It is submitted that the injuries are such which would at the most make out an offence of a lesser degree than that under Section 302 IPC. It is contended that with a view to rope in more persons from the side of the accused the FIR was left open by mentioning that a day earlier to the occurrence it has been alleged that Bhup Singh had allegedly asked Rumal, Bijji etc. not to operate towards his mine. The use of `etc.' is for the purpose of naming as many persons as possible as accused. It is further contended that Shyambir, Ram Dhan and Rewati (appellants) were not challaned by the prosecution and were kept in column No.2 of the charge-report (challan) filed by the Police. In any case, out of the said three persons who were kept in column No.2 of the challan, two of them, namely, Shyambir and Ram Dhan were juveniles at the time of the occurrence. Even though question regarding their being juveniles was not raised before the trial Court, it is submitted that the same can be raised before this Court in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (`Act' – for short). A reference has been made to Section 7-A of the Act as regards procedure to be followed when claim of juvenility is raised before any Court. In response, Mr. H.S. Sran, Additional Advocate General, Haryana, learned counsel appearing for the State and Mrs. Baljit Man, Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [8] Advocate, learned counsel appearing for the complainant have contended that the prosecution has proved its case in all material aspects and, therefore, no interference is called for in the appeal, which is liable to be dismissed. It is submitted that the question of delay in lodging the FIR is inconsequential in the facts and circumstances of the case; besides, no suggestion has been put to the Investigating Officer Sat Narain (PW-7) with regard to the alleged delay in lodging the FIR. It is also contended that Sanjay (PW-3) who is the complainant in the case is a stamped witness who received injuries in the occurrence and he has given an account of the circumstances as have occurred. Therefore, there is no ground to disbelieve his sworn testimony. Mrs. Baljit Mann, Advocate, learned counsel appearing for the complainant has further contended that the sentence of life imprisonment as imposed on the appellants in the appeal in the facts and circumstances of the case is inadequate and is liable to be enhanced to that of capital punishment and in any case the complainant is liable to be awarded compensation by enhancing the payment of fine and ordering payment of the same to the complainant. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the respective parties and with their assistance also perused the record. It may be noticed that Sanjay (PW-3) on whose statement the FIR was registered has reiterated the version as given by him in his statement (Ex.PJ) on the basis of which FIR (Ex.PJ/2) was registered. It is stated that when he along with his maternal uncle Hukam Singh (PW-4) on 14.4.1997 at 9.00 a.m. had gone to the mine of his uncle, they saw Rumal, Ram Dhan, Rewati, Bijji, Kishan Pal, Ram Rattan and Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [9] Shyambir were beating Bhup Singh, the maternal uncle of the complainant. They were armed with iron rods and lathis. Bijji (Vijay Pal-appellant) was armed with an iron rod which he hit on the head of Bhup Singh. Ram Rattan and Ram Dhan were armed with lathis and they gave lathi blows on the hands of Bhup Singh. Rumal exhorted his companions to kill him. Rewati, Kishan Pal and Shyambir were armed with lathis and gave lathi blows to Bhup Singh on his back and feet. When he tried to rescue him, then Bijji, who was armed with a rod, gave a blow on the left side of the head of the complainant Sanjay (PW-3). Ram Rattan gave a lathi blow on the wrist of his left hand and Kishan Pal gave a lathi blow on his right knee. When Hukam Singh (PW-4), the other maternal uncle of Sanjay (PW-3) raised an alarm then all the accused ran away. A day earlier to the occurrence Bhup Singh, the maternal uncle of the complainant, had told Rumal and Bijji not to extend their operational area of mining towards his mine. It is on account of the said reason that injuries were caused to Bhup Singh. Sanjay and Hukam Singh had tried to take Bhup Singh to the hospital but he succumbed to his injuries at the spot. The complainant- Sanjay was got admitted at the hospital. The Police had come to the hospital and he made his statement (Ex.PJ) which he signed after admitting the same to be correct. Sanjay (PW-3) was cross-examined at considerable length. He denied the suggestion that Rumal was empty handed and it was stated that he (Rumal) was armed with a lathi. Although Rumal had not inflicted any injury with his lathi as he was behind the other accused. The complainant-Sanjay (PW-3) could not tell the number of injuries caused by Bijji (Vijay Pal-appellant) with the iron rod. However, when the accused Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [10] were inflicting injuries to Bhup Singh, then Rumal raised a `Lalkara'. After causing the injuries the accused ran away. The Police had come to the hospital after some time. When they reached there, his statement was recorded in the hospital. The statement of Hukam Singh, it is stated, was not recorded in his presence. He denied the suggestion that the accused did not inflict any injury to Bhup Singh as alleged and he received injuries by a fall in the mine or that he was not present at the spot. Hukam Singh (PW- 4), who is elder brother of Bhup Singh (deceased) supported the prosecution version in all respects. It is stated that Bhup Singh (deceased) was his younger brother and he owned a mine of stones in the Pali hillock. The mine of Rumal-appellant was situated adjoining the mine of Bhup Singh. His brother Bhup Singh used to visit his mine daily at 7.00 a.m. in order to extract stones by mining. On 14.4.1997 Bhup Singh had gone to his mine at about 7.00 a.m. At about 9.00 a.m. Hukam Singh (PW-4) along with Sanjay (PW-3) went to the mine of Bhup Singh. There the appellants were inflicting injuries to Bhup Singh. When he raised an alarm, then the accused ran away. He did not see as to who had caused injuries to Bhup Singh because he was at a distance. They also caused injuries to Sanjay. He had taken Bhup Singh and Sanjay to B.K. Hospital and the doctor treated the injuries of Sanjay. The Police had gone to the spot afterwards from the hospital. In his cross-examination, it is stated by Hukam Singh (PW-4) that he did not know who had informed the Police but the Police had reached the hospital when they reached there. It is stated that they reached the hospital at about 10.00/10.30 a.m. and at that time the Police was present there. It is stated that he cannot say whether his statement was Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [11] recorded first of all or not. It took about half an hour to complete the writing work in the hospital. They had reached the spot along with the Police at about 12.00 noon or 1.00 p.m. or 2.00 p.m. He denied the suggestion that no such occurrence had taken place or that there was no mine of Rumal situated adjoining the mine of Bhup Singh. Ram Avtar, ASI (PW-6) was a member of the party headed by SI Sat Narain (PW-7) on 14.4.1997. In his presence blood stained earth was lifted from the spot and made into a sealed parcel. On 19.4.1997 the investigation of the case was entrusted to him and he arrested Vijay Pal and Kishan Pal accused. On the basis of their disclosure statements Ex.PL/1 and Ex.PN/1 respectively, Vijay Pal got recovered one `Saria' (iron rod) on 20.4.1997, which was taken in possession by the Police. Kishan Pal accused also got recovered one lathi which was stained with blood. It was sealed in a parcel and taken in possession by the Police. Rough site plan (Ex.PL/2) was prepared in his hand and under his signatures. He also arrested Rewati and Shyambir accused. On 28.4.1997 he arrested Ram Rattan accused who made a disclosure statement (Ex.PN/1) and got recovered lathi stained with blood which was taken in possession vide recovery memo (Ex.PN). Rewati and Shyambir, it is stated, were found having committed the offence during his investigation and for this reason he had arrested them. Ram Avtar, ASI (PW-6) was cross-examined. Sat Narain, SI (PW-7) stated that on 14.4.1997 on receipt of a telephonic message from B.K. Hospital he reached there and recorded the statement (Ex.PJ) of Sanjay on which he made his endorsement (Ex.PJ/1). The same was sent for registration of a case to the Police Station. On the Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [12] basis of the same FIR (Ex.PJ/2) was recorded by Ram Niwas, ASI, whose signatures he identified. He also prepared the inquest report (Ex.PB) and made an application (Ex.PB/1) to the Medical Officer for the post-mortem examination of the dead body of Bhup Singh. Thereafter, he reached the spot and prepared rough site plan (Ex.PS) with correct marginal notes under his hands and signatures. He lifted the blood stained earth from the spot on 14.4.1997 and sealed it in a sealed parcel with seal `RA' and took the same into possession vide memo (Ex.PK) attested by Hukam Singh and Ram Avtar, ASI. The seal after use was handed over to Hukam Singh. The statements of Hukam Singh and Ram Avtar were recorded. On 17.4.1997, he arrested Rumal accused and handed over the investigation of the case to ASI Ram Avtar (PW-6). After completion of investigation, he prepared the challan on 9.7.1997. He was cross-examined by the defence. In cross- examination, it is stated by Sat Narain, SI (PW-7) that he received the telephonic message from B.K. Hospital at about 3.00 p.m. He did not record the message in the daily diary. He had sent Ruqa (memo) to the Police Station after recording the statement of Sanjay (PW-3) and his endorsement at about 3.30 p.m. After seeing the site plan (Ex.PS) it was stated that he had not shown the point from where the blood stained earth was lifted. The suggestion that no blood stained earth was lifted from the spot on account of the ditch being very deep was denied. He denied the suggestion that no quarrel had taken place at Point-`A' as shown in Ex.PS or that he had falsely shown the spot of the incident as Point-`A'. He did not take any record in possession to ascertain documentarily the existence of mines of various persons. It is also stated by Sat Narain, SI (PW-7) that he Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [13] had found three persons, namely, Shyambir, Ram Dhan and Rewati (appellants) as innocent and they were discharged as per his directions. It is accepted that vide application Ex.DA he recommended the discharge of Shyambir, Ram Dhan and Rewati. In the context of the material and evidence on record it is to be ascertained as to whether there has been delay in lodging the FIR and its effect in the case. Indeed, there has been considerable delay in lodging the FIR, inasmuch as, the occurrence that had occurred in the present case was at 9.00 a.m. on 14.4.1997 whereas the statement (Ex.PJ) of Sanjay- complainant (PW-3) was recorded at 3.30 p.m. The FIR (Ex.PJ/2) was recorded at 3.50 p.m. on 14.4.1997. It may be noticed that Hukam Singh (PW-4), who is the other maternal uncle of the complainant-Sanjay (PW-3), in his cross-examination has stated that they reached the hospital at about 10.00 a.m. or 10.30 a.m. and at that time the Police was present there. His statement was recorded in B.K. Hospital but he could not say whether his statement was recorded first of all or not. From this, it is contended by the learned senior counsel for the appellants that it can be inferred that in case the Police was present in the hospital at 10.00 or 10.30 a.m., he may have got recorded his statement. The statement (Ex.PJ) of Sanjay was recorded at 3.30 p.m. on the basis of which FIR (Ex.PJ/2) was recorded at 3.50 p.m. Besides, the special report reached the Illaqa Magistrate on the next day i.e. on 15.4.1997 at 1.00 p.m. The contention of the learned senior counsel for the appellants is that the said circumstances gave sufficient time to the prosecution to deliberate and exaggerate the case by implicating more accused. There is indeed a tendency on the part of the complainants, who Cr. A. No.316-DB/1998 & Cr. Revision No.809/1998 [14] are the aggrieved to give exaggerated version and rope in as many as persons of the opposite side or exaggerate their role. However, it may be noticed that Dr. C. Paul (PW-1), who conducted post-mortem examination of the deceased Bhup Singh, had found the following injuries:- “Injury No.1. L.W. (lacerated wound) 1½ inch x ½ inch over middle of forehead. 2. Bruise with fracture dislocation of right elbow. Irregular lacerated wound over the lower part of right arm. Clotted blood was present over the clothes