Criminal Appeal No.9-SB of 1998 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.9-SB of 1998 Date of decision : 3.12.2008 **** Partap Singh and others .....Appellants Versus The State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. R.K.Handa,Advocate for the appellants. Mr. S.S.Mor, Senior Deputy Advocate General, Haryana Mr. Kapil Aggarwal, Advocate for the complainant. S. D. ANAND, J. The appellants( Partap Singh, Phool Chand, Dinesh, Hans Raj and Rohtash son of Hari Ram) were convicted by the learned Trial Judge for the offences under Sections 147, 148 IPC and 323, 325 read with Section 149 IPC; while appellants (Sarjit and Mool Chand ) were convicted for the offences under Sections 147, 148 IPC and 323, 325, 307, read with Section 149 IPC. All the appellants/accused were sentenced to undergo rigorous imprisonment for one year under Section 148 IPC, six months RI for the offence under Section 323 IPC and two years RI and a fine of Rs.2000/- each for offence punishable u/s 325 IPC. In case of a default in the payment of fine, all the accused were ordered to undergo further imprisonment for one month. Learned Trial Judge also sentence accused Sarjit Singh and Mool Singh to RI for a period of five years and a fine of Criminal Appeal No.9-SB of 1998 -2- *** Rs.5000/- each under Section 307 read with Section 149 IPC. In default of the payment of fine, those two accused were ordered to undergo further imprisonment for a period of three months. The prosecution presentation, at the trial, was as under:- Truck bearing registration No.RRB-3065, of which PW-2 Omkar was the registered owner, was attached with the truck operators union, Nangal Chaudhary. A meeting of registered owner of the trucks attached with that union was held in the month of Sawan/Bhado of the year 1990. PW-2 Omkar and four others, namely, Man Singn, Abhey Singh, Partap Singh and Jagbir Singh were elected by the union as their representatives. Besides it, Omkar was elected as Pardhan of the union. For few days, the union were proceeded smoothly. However, in the second meeting of the union, Partap Singh appellant made a suggestion that there should be enhancement of the freight rate. That proposal was shot down by majority. After the meeting was over, Omkar was sitting in a field in front of the office of truck union in the company of Jagbir, Balbir, Abhey Singh, Amar Singh, Ram Chander, Hazari and one Ishwar Singh (who has since died). Appellant Partap Singh, accompanied by the other appellants, came over there. At that time, appellant Sarjit was armed with an iron rod; while other appellants were armed with a Lathi each. Appellant Moola Ram declared that they were around to teach Omkar a lesson for not allowing the freight rate to be enhanced. Omkar went over to the protesting appellants and tried to reason it out with them. Appellant Moola Ram gave a lathi blow each on the head and right hand of Omkar, who, on sustaining those injuries, fell down upon the ground and became unconscious. The other appellants, thereafter, caused injuries to Ishwar, Amar Singh, Ram Chander, Hazari and Abhey Singh. Jagdish and Balbir Singh rescued them and removed them to Primary Health Centre, Nangal Criminal Appeal No.9-SB of 1998 -3- *** Chaudhary where they were medico-legally examined. From there, three out of them ( Ram Chander, Amar Singh and Hazari), who had sustained grievous injuries, were referred to General Hospital, Narnaul. The offence was notified to the police by PW-2 Omkar, vide his statement Ex. PB. PW-1 Pehlad Sharma, a Draftsman practising at Narnaul, had inspected the spot on 15.9.1990 and had prepared scaled site plan Ex. PA, on the police request, on the pointing of Jagbir and Ishwar Singh. PW-2 Omkar is the first informant/injured witness. Besides him, PW-4 Amar Singh, PW-7 Abhey Singh, PW-10 Ram Chander and PW-11 Hazari are also injured Pws/eye witnesses. PW-3 Dr. Viney Chaudhary, had radiologically examined the injuries on the person of Ram Chander, Amar Singh and Abhey Singh ( from the complainant side) and also Mool Singh and Sarjit Singh out of the appellants. The following fractures were found on the person of Ram Chander:- “1. Fracture of right olecranon process of ulna. 2. Fracture of lower end of right fibula. 3. Fracture of 2nd metacarpal of left hand. 4. Fracture of shaft of left ulna and lower end of radius.” A fracture of Nasal bone was found on the person Amar Singh. Fractures of comminuted fracture of left tempro parietal and left frontal bone were found on the person of Hazari. Fracture of lower shaft right radius was found on the person of Abhey Singh. Insofar as the appellants Mool Singh and Sarjit are concerned, no bony injury was found on their person. They, too, had otherwise been Criminal Appeal No.9-SB of 1998 -4- *** examined on the request of the police. PW-5 HC Rawat Singh recorded the formal FIR Ex. PB/1, on receipt of ruqqa Ex. PB. PW-6 HC Dilbag Singh had attested memo Ex. PG vide which appellant Mool Chand had got recovery of iron rod effected from behind the bushes near lime-kiln. PW-8 Dr. S.R.Dharkar had examined Hazari Lal injured (who remained hospitalised after 6.9.1990) on 26.8.1990, he, during the period of hospitalisation, was operated upon on 30.8.1990 for depressed fracture left parietal and extra dural haemotoma. PW-9 Dr. Vimal Sardana had operated upon Hazari Lal who had compound depressed fracture with underline extra dural haemotoma in left parietal region. PW-12 HC HC Rohtash had partly investigated this case inasmuch as he had recorded the statements under Section 161 Cr.P.C. Of Amar Singh, Ram Chander and Hazari. PW-13 Inspector Udai Singh had investigated this case. PW-14 Dr. Vijay Bansal had medico-legally examined Hazari, Amar Singh and Ram Chander and found the following injuries on their person:- Hazari Lal: 1. 1.5 x 0.2 cm lacerated wound on the temporoparietal bone 5 cm above the left ear. Bleeding was present. Bone was exposed. Wound was horizontal in direction and x-ray was advised. Criminal Appeal No.9-SB of 1998 -5- *** 2. 0.5 x 0.5 cm reddish skin abrasion over the centre of the occipital bone. Swelling all around was present. X-ray was advised. Amar Singh: 1. Lacerated wound 15 cm x 0.5 cm on the temporoparietal bone of the right side 5 cms above the ear. L-shape bleeding was present. X-ray was advised. 2. 4 x 0.5 cm lacerated wound above the left eyebrow, bleeding was present. Muscles were exposed. X-ray was advised. 3. 3cm x 0.5cm skin abrasion horizontal over the lower portion of sternum. X-ray was advised. 4. Skin abrasion over the left shoulder joint 3 x 1.5 cm slightly on the medial side. X-ray was advised. 5. Swelling on the left lower arm in the middle. Over it 1.5cm x .5cm skin abrasion. X-ray was advised. 6. .5 x .1 cm lacerated wound over the bridge of nose. Lateral surface on the left side, slight swelling of nose was present. Bleeding was present. Ram Chander: 1. 1 cm x .3 cm x .3 cm lacerated wound on the posterior surface of right elbow joint. Oblique. Bleeding was present. 2. 1 cm x .1 cm oblique lacerated wound over the left side of parietal bone, 8 cms above the left ear. X-ray was advised. 3. 3 cm x .2 cm lacerated wound over the lateral surface left ear lobule. Cartilage was exposed. Criminal Appeal No.9-SB of 1998 -6- *** 4. Swelling of the right ankle joint alround. No external injury was seen. Movements were tender. X-ray was advised. 5. 1 cm x .5 cm lacerated wound on the dorsal surface of left index finger base. X-ray was advised. 6. Swelling of left wrist joint. No external injury was seen. X- ray was advised. 7. Swelling of left forearm in the middle. There was slight disfigurement 1 cm x .5 cm skin abrasion was over it. X-ray was advised. 8. .3 x .3 cm reddish skin abrasion over the lateral aspect of left elbow joint. Swelling was all around. X-ray was advised.” He had further opined that injuries no. l and 2 on the person of Hazari were dangerous to life. PW-15 Dr. Nirmala Bishnoi had medico legally examined Omkar, Ishwar Singh, Abhey Singh and Sarjit and found the following injuries on their person:- Omkar:- 1. A lacerated wound over the parietal region left side about 10.5 cm and 1.2 cm bleeding was present. The edges were irregular and the direction was longitudinal. X-ray was advised. 2. Abrasion was over the right forearm middle 1/3rd 7 cm x 1 cm. Slightly bleeding was present on dorsal side. 3. An abrasion over the right hand dorsal side .5 cm x .2 cm. Redness was present. Ishwar Singh: 1. Lacerated wound on the right eye 1 cm x 2 cm laterally slight bleeding was present. Criminal Appeal No.9-SB of 1998 -7- *** 2. Lacerated wound on the left eye 2.5 cm x .2 cm laterally. Bleeding was present. 3. Bruise mark on the right thigh anterio-laterally 12 cm x 5 cm. Redness was present on the upper 1/3rd of thigh. 4. Bruise mark on the left thigh front side upper 1/3rd region 6 cm x 3 cm in size. Redness was present. Abhey Singh: 1. Swelling was present on the lower 1/3rd of right forearm. Tenderness was present. X-ray was advised. Sarjit: 1. One incised wound on skull right side of parietal region longitudinal about 6 cm x .6 cm moderate bleeding was present. Edges were regular. Depth 1 cm. Advised X-ray of skull. 2. Complaint of pain on occipital region, Protuberans. Tenderness present. Advised X-ray skull. She had also examined Mool Singh and Rohtash son of Hari Ram appellant on that very day and had found the following injuries:- Mool Singh:- 1. An incised wound on skull parietal region left side horizontally about 7 cm x .8 cm and 0.8 cm in depth. Edges were regular. Moderate bleeding was present. X-ray of skull was advised. 2. Complaint of pain on left forearm middle 1/3rd swelling was present. Advised x-ray left forearm. Rohtash: 1. One lacerated wound on right foot dorsal side at second and third metacarpal bone about 3 cm x .6 cm. Bleeding was Criminal Appeal No.9-SB of 1998 -8- *** present. Edge regular. 2. One abrasion mark on forehead just above the eyebrow about 3 cm x .8 cm. Bleeding was present. PW-16 Dr. Sanjeev Dua had examined Hazari Lal on 24.8.1990. Appellant Sarjit denied the prosecution allegation and alleged false implication by averring in the course of his statement under Section 313 Cr.P.C.:- “I am innocent. The real facts are that myself, Partap Singh and Mool Singh my brothers and my father Megh Singh as well as complainant party used to carry transport business. The complainant party used to put obstacles in our transport business. My father Megh Singh had filed an injunction suit against the complainant party not to create hindrances in our business. The civil court had granted temporary injunction against the complainant party and they had grouse against us. On 19.08.1990 Subhash son of Mahada Ram and Ram Niwas son of Ram Kumar went to Mool Singh and asked him to take their buffaloes from their village Bhojawas to Jobener in truck No.HYD-1577. On the same day at about 5 p.m. Mool Singh went to village Bhojawas with his truck No.HYD-1577. I and Rohtash accompanied him. When the buffaloes were being loaded in the truck, Omkar, Ram Chander, Hazari, Man Singh, Abhey Singh, Bhoop Singh, Amar Singh, Jagbir, Ramesh, Suresh and Attar Singh reached there in truck No.HYL-4575. All of them asked Mool Singh not to carry buffaloes from there and started giving him fists and slaps. The glasses of truck No.HYD-1577 were damaged. On the same day, at about 6 Criminal Appeal No.9-SB of 1998 -9- *** p.m. Mool Singh, I myself and Rohtash accompanied by Ram Niwas and Subhash reached Nangal Chaudhary on their way to Jobner when Man Singh etc. stopped Mool Singh's truck by placing their truck in front of his truck. Moll Singh was dragged out of the truck. Jagbir and Omkar caught hold of Mool Singh. Man Singh inflicted a Pharsi blow on his head. Ram Chander gave a lathi blow on his head, Amar Singh gave a lathi blow on his head. When I tried to intervene, Hazari inflicted Kulhari blow on his head. Bhoop Singh and Abhey Singh caused injuries to me with their lathis. When Rohtash conductor tried to save me, Ramesh, Suresh and Attar Singh caused injuries to me with their lathis. The occurrence was witnessed by Ram Niwas, Subhash, Partap, Ishwar Singh and Surja Ram. The injured were taken to PHC Nangal Chaudhary where they were medico-legally examined. The police under the influence of complainant party did not take action against the culprits and hence the complaint was filed by Mool Singh etc. against the culprits in court which is still pending in the court of the Chief Judicial Magistrate, Narnaul. Hari Ram, Rohtash son of Bhola Ram, Lal Chand, Dinesh, Phool Chand, Tek Chand, Hans Raj, Hanuman and Megh Singh were not present at the spot. Balbir Singh PW was also not present. It is a false case and I am innocent.” The similar plea has also been taken by appellants Mool Singh and Rohtash son of Hari Ram. Appellants Hari Ram, Hans Raj, Rohtash son of Hari Ram, Phool Chand and Dinesh raised plea of alibi., Appellants did not adduce any evidence in defence. Criminal Appeal No.9-SB of 1998 -10- *** Insofar as the prosecution presentation is concerned, it was testified on oath by PW-2 Omkar/first informant and also by PW-4 Amar Singh, PW-7 Abhey Singh, PW-10 Ram Chander and PW-11 Hazari injured PWs. Each one of them detailed the sequence of events, starting from the controversy about the enhancement of freight rate and culminating in the belabouring of the injured PWs at the hands of the appellants. Learned counsel for the appellants argues in favour of the invalidation of the impugned finding of indictment by pointing out that the prosecution had not been able to fix the identity of the appellants as the perpetrators of the crime in view of the fact that no Test Identification Parade was held. He further argues that the prosecution has not been able to prove on record any motive which could have actuated the appellants to belabour the injured PWs. Yet another plea, argued in the alternative, is that it were injured PWs who opened an attack upon some of the members of the appellants party who were available at the spot. The plea in the context, is that the appellants Mool Chand and Sarjit acted in self-defence and that Appellants Hari Ram, Hans Raj, Rohtash son of Hari Ram, Phool Chand and Dinesh were not at all present at the spot and they have been roped in falsely. Insofar as the plea on point of non holding of the Test Identification Parade is concerned, it is to be merely noticed to be negatived. The parties belong to the same village, It is not the plea of either side that they participated in the impugned occurrence under a mask. In that view of things, it is illogical for the appellants to raise a plea of acquittal just because a Test Identification Parade was not held. Even otherwise, it must be noticed that Test Identification Parade is only one of the methods adopted to buttress the prosecution presentation. An Criminal Appeal No.9-SB of 1998 -11- *** otherwise validly proved prosecution plea cannot be thrown out just because a Test Identification Parade had not been got held, particularly when the parties to the impugned prosecution were not in the know of each other's identity, being village mates. It is neither here nor here for the appellants to argue that the prosecution had not been able to prove any motive on the part of the appellants to belabour the members of the complainant party. Omkar and other injured PWs have categorically testified at the trial that appellant Partap Singh whose proposal for enhancement of freight rates was shot down by majority, was nursing a grievance against first informant and other injured PWs who belong to the group of Omkar PW. The existence of groupism in the truck union is not a foreign phenomenon. That being so, the plea advocated on behalf of the appellants shall stand rejected, It requires pertinent notice that the members of the complainant party, who too were prosecuted by the appellants in a cross case, stand acquitted and no appeal has come to be preferred against the order of acquittal in their favour. Learned counsel for the appellants, then, argues that appellants Hari Ram, Hans Raj, Rohtash son of Hari Ram, Phool Chand and Dinesh were not even available at the spot at the time of impugned occurrence and they have been framed only because of their association with the appellant party. The appellants aforementioned have not been able to adduce acceptable evidence on file to prove that they were not available at the spot at the relevant point of time. It was for those appellants to indicate their whereabouts at the time of impugned occurrence had taken place. Though the prosecution cannot be absolved of the responsibility to prove the charge against the appellants, it has to be noticed that the plea of alibi Criminal Appeal No.9-SB of 1998 -12- *** had to be proved by the concerned appellants themselves. If those appellants were so inclined, they could have opted (in their own discretion) to enter the witness box and disclose where exactly they were at the time of impugned occurrence had taken place. The mere fact they did not sustain any injuries in the course of impugned occurrence, is not sufficient to warrant that they were not available at the spot at the relevant point of time. It would not be out of place to make here a mention of the fact that only Mool Singh and Rohtash had sustained injuries on their person that too were simple in nature. As against it, a fairly large number of injuries were found on the person of members of the complainant party and injuries found on the person of Ram Chander, Amar Singh, Hazari and Abhey Singh totalled as many as eight fractures. No other point was argued. In the light of the foregoing discussion, I find no reason to invalidate the finding of conviction recorded by the learned Trial Judge. However, insofar as the appellants Partap Singh, Phool Chand, Dinesh, Hans Raj and Rohtash son of Hari Ram are concerned, they were convicted for the offences under Sections 147, 148 IPC and 323, 325 read with Section 149 IPC. In view of the fact that they faced the ordeal of trial/appeal since the year 1990, I am of the opinion that interest of justice would be served if the benefit of reformatory provisions of the Probation of Offender Act is given to them. The order on point of sentence qua them shall stand set aside. They shall stand released on on probation for one year on their furnishing bond in the sum of Rs.10,000/- with one surety in the like amount, for a period of one year to appear and receive sentence whenever called upon during this period and, in the meantime, to keep the peace and be of good behaviour. Insofar as the appellant Surjit Singh and Mool Singh are Criminal Appeal No.9-SB of 1998 -13- *** concerned, both of them have been proved have to participate in the impugned occurrence while the former was armed with an iron rod and latter was armed with a lathi. The evidence available on the file is, however, not sufficient to uphold the finding of conviction under Section 307 IPC. That finding proceeds upon the statement made by PW-14 Dr. Vijay Bansal. However, in the course of the cross-examination, he conceded that “I had given my opinion Ex. PKK/1 on the basis of the x-ray report mentioned in the police application. I had not seen the x-ray report myself.” It is apparent that the X-ray report and x-ray films were not available when Dr. Vijay Bansal gave the opinion aforementioned. The reliance placed by Dr. Bansal upon the contents of the police plea in the relevant behalf would not appear to be in order. The conviction recorded against Mool Singh and Sarjit Singh under Section 307 IPC shall stand set aside. They shall stand convicted for the offence under Section 326 IPC. In view of the fact that the appellants Surjit Singh and Mool Singh faced the ordeal of trial/appeal since 1990, the sentence awarded to them is reduced to rigorous imprisonment for a period of three years. The appeal shall stand disposed of accordingly. December 03, 2008 (S. D. ANAND) Pka JUDGE