Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision : August 7, 2006 Criminal Appeal No. 521-DB of 1998 Kale alias Kuldeep & others vs State of Haryana Criminal Appeal No. 549-DBA of 2005 State of Haryana vs Umed Singh and others Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N.Jindal Present: Mr. RS Cheema, Senior Advocate, with Mr. JS Mehandiratta, Advocate, for the appellants. Mr. Sunil Katyal, DAG, Haryana. Virender Singh J., Vide this judgment we shall be disposing of Criminal Appeal No. 521-DB/1998 filed by Kale @ Kuldeep & five others and Criminal Appeal No. 549-DBA of 2005 filed by the State of Haryana against Umed Singh and two others as both are arising out of one and the same impugned judgment passed by learned Additional Sessions Judge, Gurgaon dated 30- 10-1998. Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -2- Kale alias Kuldeep (to be referred to as Kale) and Parkash alias Braham Parkash (to be referred to as Parkash) appellants in Appeal No. 521 have been convicted under Sections 302 read with Section 34 IPC, 325 read with Section 34 IPC and 323 read with Section 34 IPC. They are sentenced as under: Under Section 302 read with Section 34 IPC Imprisonment for life and to pay a fine of Rs. 1,000/-, in default thereof to further undergo RI for six months. Section 325 read with Section 34 IPC RI for three years each and to pay a fine of Rs. 300/- each, in default thereof to undergo further RI for two months. Section 323 read with Section 34 IPC RI for six months. Umed Singh, Raghunath, Naresh and Smt. Mukat Lado (to be referred to as Lado) have been convicted under Sections 323 read with Section 34 IPC. Naresh has been released on probation whereas the remaining three accused/appellants have been sentenced as under: Section 323 IPC read with Section 34 IPC RI for six months each. All the substantives sentences have been ordered to run concurrently. As depicted in the charge sheet, Kale alias Kuldeep was aged 18 years, Naresh 25 years, Braham Parkash 22 years, Umed Singh 19 Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -3- years, Raghunath 70 years and Smt. Mukat Lado was 65 years old at the time of occurrence. Mr. Cheema learned Senior Advocate states that Naresh appellant has since expired, which fact is not disputed by the learned State counsel. The State of Haryana also filed an appeal ( No. 549-DBA of 2005) against Umed Singh, Raghunath and Smt. Mukat Lado on the plea that their case is also on par with the aforesaid Kale and Braham Parkash, who have already been convicted under Section 302 read with Section 34 IPC, therefore aforesaid three respondents be also convicted under Section 302 read with Section 149 IPC, for which all the accused were initially charged with by the learned trial Court. Record reveals that no formal order for grant of leave to appeal on the miscellaneous application (Criminal Misc. No. 245-MA of 1999) filed by the State against acquittal of aforesaid three respondents was passed and it was simply ordered to be heard with the main appeal i.e. Crl. Appeal No. 521. Subsequently, vide formal order dated July 12, 2005, the State appeal stands admitted. Record further reveals that Criminal Revision No. 1327 of 1998 filed by the complainant was dismissed by this Court vide order dated January 22, 1999. Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -4- FACTS IN BRIEF: Mahabir is the deceased in this case. He is son of Mehar alias Mehar Singh ( PW-8), the complainant/FIR lodger. The occurrence is dated 17-5-1990 at 5-00PM in village Garoli Khurd, police station Sadar Gurgaon. The distance between the police station and the place of occurrence is 5 kilometers. On the same day at 11-55PM statement Ex. DF of aforesaid Mehar Singh was recorded by HC Bhim Singh in General Hospital, Gurgaon where-in he alleges that some of the land of his plot was grabbed by Raghunath Singh son of Ram Sarup etc., for which a civil suit in Civil Courts at Gurgaon was pending and the next date fixed in the said case was 7-6-1990. His son Mahabir was employed in the office of Deputy Commissioner. On 17-5-1990 at about 5-00PM he and his son Mahabir came out of their house on the street after taking tea. Kale alias Kuldeep (appellant) having a pipe in his hand and Parkash ( appellant) armed with a lathi came there and started hurling abuses at them, proclaiming that they would teach them a lesson for filing a civil suit in the courts. Thereafter Kale gave a pipe blow lathi-wise on the head of Mahabir and Parkash gave a lathi blow on his ( Ram Mehar's) head followed by another lathi blow on the little finger of the complainant's left hand and third lathi blow on the left side of his hips. At that moment his son-Balbir and brother Khema reached the spot. Umed son of Raghunath and Naresh son of Bhoop Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -5- Singh also reached from the other side. On reaching there, Umed gave a brick blow on the chin of Khema, Kale gave a pipe blow on the left thigh and Parkash gave a lathi blow on the back of palm of left hand of Khema and Umed gave one brick blow on the chest of Khema. Naresh gave a lathi blow on the right foot of Balbir. Kale gave a pipe blow on the right side of head of Balbir. Smt. Bhagwani wife of the complainant also reached there. She was given a brick blow on the back of right hand and left cheek by Naresh. When the complainant side raised an alarm, Mohan Lal son of Neki, Mohinder Singh son of Kamal Singh reached there. They rescued them from the clutches of the accused persons else they would have been given more beatings. It is then stated that they had also given injuries to the accused side in their self defence. All the accused then returned to their homes along with their respective weapons. The police proceedings indicate that initially no cognizable offence was made out. Ultimately on receipt of X-ray report, formal FIR ( Ex.DF/3) was recorded in police station Sadar Gurgaon on 19-5-1990 at 2- 00PM under Sections 308/323/34 IPC . It reached the Illaqa Magistrate (Chief Judicial Magistrate, Gurgaon) on 21.5.1990 at 8-00 AM. Mahabir was referred to Safdarjang Hospital, Delhi, for treatment where he died on 23.5.20090 at 6-55 AM. After his death, section 304 IPC was added. During the course of investigation, iron pipe and lathi were recovered from Kale alias Kuldeep and Braham Parkash appellants, but the Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -6- same have not been exhibited during trial. It is worth mentioning here that on the day of occurrence itself i.e. 17-5-1990, at the instance of Raghunath appellant, a DDR No. 23 ( Ex. DX) was recorded at 7-50 PM wherein he has stated that at about 5-00 PM when he was present in his house, Mahavir Singh (since deceased) came in front of his house and started abusing him. Raghunath tried to stop him but the latter got enraged and started giving filthy abuses. On hearing it he came out of the house. Mahavir inflicted Jaili blow upon him, which hit him on the right hand thumb. Balbir brother of Mahavir and Mehar Singh son of Bharat came there. Balbir gave lathi blow on the neck of Raghunath. When his wife Laddo Devi came to his rescue, Khem Chand son of Bharta came there armed with a Jaili and gave its blow on her head. Balbir pushed her. Mehar Singh gave one injury on her right wrist and Khem Chand gave Jaili blow on her right foot. On hearing their noise, Hukam Chand son of Ram Sarup, Naresh son of Bhoop Singh came there, who rescued them from their clutches, otherwise they would have been given more beatings. He then states that they had also caused injuries to the other side in their self defence. The instant case was partly investigated by HC Bhim Singh ( PW10) and subsequently investigation was took over by SI Gurcharan Singh ( PW-11). After completion of investigation the accused were challaned to face trial. They were charged under Sections 148 IPC, 302 Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -7- read with Section 149 IPC, 325 read with Section 149 IPC and 323 read with Section 149 IPC. Medical evidence of the prosecution side is as under: Dr. GS Shekhawat (PW5) had medico legally examined Mahabir Singh, Balbir Singh, Khimman, Mehar Singh and Smt. Bhagwani on 17.5.1990. The injuries found on their persons were as under:- Mahavir Singh i) A bone deep lacerated wound of 8 x 3 cms size, obliquely placed on the left frontol parietal region. Fresh clotted blood was present. It was 8 cms above the lateral end of left eye brow. X-ray skull was advised and injury was referred to surgeon's opinion; ii) A diffused reddish swelling on the right parietal region, 8 cms above the middle of the right eye brow. X-ray skull was advised. Injury was referred to surgeon's opinion; and, iii) A red contusion of 8 x 3 cms size, on the left infra scapular region, obliquely placed. X-ray was advised. All the injuries were kept under observation. Copy of MLR is Ex.PE and diagram showing location of injuries is Ex.PE/1. Balbir Singh: i) Lacerated wound of 4 x 3 cms size on the right temporal region. Fresh clotted blood was present and x-ray was advised; ii) A red contusion of 6 x 3 cms of size on the dorsal aspect of right fore- arm, 6 cms above the wrist. X-ray was advised. Both the injuries were kept under observation. MLR is Ex.PF while diagram showing seats of injuries is Ex.PF/1. Khimman Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -8- i) A skin deep lacerated wound of 3 x 2 cms size on the dorsal aspect of left hand, on the metacarpal. Fresh clotted blood was present and x-ray was advised; ii) A red abrasion of 1/2 x 1/2 cm size on the left wrist. Fresh clotted blood was present; iii) A lacerated wound of 1 x 1/2 cm size on the left side of the chin. Fresh blood was present; and, iv) A diffused reddish swelling on the anterior aspect of the chest, 2 cms below the sternal notch. Tenderness was present. X-ray. X-ray was advised. Injuries No.1 and 4 were kept under observation while the rest two were declared simple. Ex.PG is the MLR and Ex.PG/1 is the diagram showing seats of the injuries. Mehar Singh: i) A bone deep lacerated wound of 8 x 3 cms size on the left frontal region, longitudinally present, 6 cms over the eye brow. X-ray was advised; ii) A bone deep lacerated wound of 3 x 1½ cms size on the distal phalanx of right little finger. X-ray was advised. iii) A red contusion of 8 x 4 cms size on the lateral aspect of the left thigh on its upper part. X-ray was advised. All the injuries were kept under observation. MLR is Ex.PH and diagram is Ex.PH/1. Smt. Bhagwani: i) A diffused reddish swelling on the dorsal aspect of the right hand at the metacarpal of the index and middle and the base of index finger. Tenderness was present and x-ray was advised; ii) A diffused reddish swelling on the left side of the face on the maxillary prominence. X-ray was advised. Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -9- Both the injuries were kept under observation. MLR is Ex.PJ and diagram showing seats of injuries is Ex.PJ/1. This witness further testified that he had sent ruqqa (Ex.PK) to the police station Sadar, Gurgaon. He also identified signatures of Dr. S.P. Singh and Dr. P.Vats on application Ex.P.L and Ex.PM whereby injured Mahabir and Balbir Singh were declared unfit to make statements. Dr. B.B. Aggarwal, Radiologist, General Hospital, Gurgaon, was examined as PW3. He had conducted radiological examination of Mahabir Singh and Mehar Singh on 19.5.1990 and 24.5.1990 respectively. In both these cases he had found fractures as under:- Mahabir Singh i) Liner fracture parietal area of skull. X-ray report is Ex.PC and skiagram is Ex.P2. Mehar Singh: i) Fracture tip of terminal phalynx of little finger of right hand. X-ray report is Ex.PB while x-ray film is Ex.P1. Autopsy on the dead body of Mahabir Singh was conducted by Dr. G.K. Chobey (PW6), Specialist Forensic Medicines and head of the Department, Safdarjang Hospital, New Delhi, at 2.30 p.m. on 23.5.1990. He found a stitched wound of 5 cms in length present over left temporal parietal region, which was obliquely placed. It was ante-mortem in nature. There was haematoma over left temporal parietal region of 7 x 4 x 1 cms size. On examination of skull, the doctor found that there was fracture of Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -10- left temporal bone extending through coronal suture to right temporal bone. He then noticed that there was right subdural haematoma over parietal lobe of size 7 x 6 x 1 cms. Parietal lobe was correspondingly depressed. There was contusion of right temporal lobe of size of 3 x 2 x 1 cms. Brain was edematous. Brain stem haemorrhage was present. According to his opinion, the death was due to coma, as a result of head injury, which was sufficient to cause death in ordinary course of nature and could be produced by application of blunt force. Injuries on the person of some of the accused are as under: On the day of occurrence itself, Dr. GS Shekhawat ( PW-5) had also medico legally examined Raghunath appellant at 8-30PM and found the following injuries on his person: 1. A lacerated wound 4 cms x 3 cms x bone deep on the dorsal aspect of base of nail of the right thumb on the distal phalynx. Tenderness wqas present and x-ray was advised. 2. A red contusion 6 cms x 5 cms on the right side of the next, 2 cms below the ankle of the mandible. Tenderness was present and injury was referred to surgeon's opinion. 3. The injured was complaining of pain all over the back, but no mark of external injury was seen. Smt. Lado Devi wife of Raghunath Singh was also examined by the aforesaid doctor and on her person the following injuries were noticed: 1. A lacerated wound 3 cms x 2 cms x bone deep on the left frontal region, 8 cms above the middle of the eye brow. Fresh Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -11- clotted blood was present and x-ray was advised. 2. A diffused tender reddish swelling on the dorsal surface of right fore-arm in the middle. X-ray was advised. According to Dr. B.B.Aggarwal, Radiologist, General Hospital, Gurgaon (PW-3), there was a fracture of distal phalynx of thumb with regard to one of the injuries on the person of Raghunath appellant. It is worth mentioning here that when the aforesaid doctor examined Mahabir Singh at 7-20PM, he found smell of alcohol coming out of his mouth. 10 cc of blood was syringed out and sealed in a vial in order to ascertain the quantity of alcohol in the blood. The injured eye-version account is in the shape of deposition of Balbir Singh ( PW7), who is real brother of Mahabir (deceased) and son of Mehar Singh (PW8). Both of them have reiterated the prosecution version. Specific injuries attributed to the appellants have also been depicted in their substantive statements. It needs to be mentioned that the other two injured witnesses, namely, Khimman real brother of Mehar Singh and Smt. Bhagwani have been given up as unnecessary. Mohan Lal and Mohinder were given up as having been won over by the accused. Investigation conducted by HC Bhim Singh (PW-10) reveals that after the receipt of ruqa along with copy of the medico legal reports from the concerned doctor he went to General Hospital, Gurgaon and after Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -12- obtaining certificate from the doctor with regard to fitness of the injured, recorded the statement of Mehar Singh ( Exhibit DF) and prepared the rough site-plan ( Exhibit PR) of the place of occurrence. On 20-5-1990 he arrested Raghunath appellant, who suffered a disclosure statement and pursuant thereto got recovered a lathi, which was taken into possession vide recovery memo. P5. On the death of Mahabir on 23.5.1990 he added Section 304 IPC in this case. ASI Rajinder Singh ( PW-9), who was posted in police station Vinay Nagar, New Delhi, at the relevant time went to Safdarjang Hospital for recording the statement of Mahabir Singh and moved application Exhibit PP. However, the patient was found to be unfit. On his death, he prepared the inquest report ( Ex. PQ) and recorded the statements of some witnesses regarding identification of the dead body. SI Gurcharan Singh (PW-11) is the main Investigating Officer of the case to whom the investigation was entrusted on 28.5.1990. He recorded the supplementary statements of Balbir Singh, Khem Singh and Mehar Singh and arrested Kuldeep Singh, Braham Parkash (appellants) and Naresh (since dead). During interrogation Kuldeep suffered a disclosure statement ( Exhibit PT). Pursuant to that he got recovered a pipe. Similarly on the basis of his disclosure statement ( Ex. PU) , Braham Parkash appellant got recovered a lathi. Both the weapons were taken into possession vide separate recovery memos. Rough site-plans of the places of Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -13- recoveries of weapons were prepared. The other accused were also arrested by him on different dates i.e. 7.6.1990, 19.6.1990 and 21.6.1990. Mool Chand Punia, Draftsman ( PW4), had prepared the scaled site-plan ( Ex.PD) after visiting the spot. According to the said plan, the place of occurrence is shown at point `A' which is the kacha chabutra (raised platform). This is in front of the house of Raghunath. On the western side a rasta (path) is shown and on one side there is house of Mehar Singh. On the northern side Chhappar of Khem Chand is depicted. On eastern side chowk, house of Mehar Singh is shown. So is the position of rough site-plan ( Ex.PR) prepared by HC Bhim Singh ( PW-10), who had inspected the spot on 19-5-1990. We do not feel the necessity of reproducing the evidence of other formal witnesses. The stand taken by the appellants as emerging from the statement of Raghunath appellant is that on the day of occurrence, Mahabir had consumed excessive liquor and in the state of intoxication, he picked up a quarrel with a tailor at Gurgaon where he was given beatings. He was brought to the village by his brother Balbir Singh, but after some time he went out of his house and after coming near his (Raghunath's) house, he started abusing the inmates of the house. He picked up a jailly and came in front of their house and started mouthing filthy abuses. He was stopped by Raghunath. Similar request was made by his wife Smt. Lado. Mahabir Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -14- gave injury to Raghunath and Smt. Lado. Naresh (deceased) armed with a lathi also came there. Meanwhile Khema and Bhagwani also reached there to help Mahabir. The appellant side also caused injuries to them. The plea taken up by Umed and Kuldeep is that they were not present at the spot and were falsely implicated. We would also like to refer to the finding of the trial court wherein it is observed that the accused party came to the spot in three batches. In the first batch Kale alias Kuldeep and Parkash alias Braham Parkash came. In the second batch, Braham Parkash and Umed Singh arrived at the spot. In the third/last batch Raghunath and Smt. Mukat Lado had emerged. Since the accused side had not come collectively, but in three batches, that too with discernible time gap, it cannot be said that they formed an unlawful assembly with the object to commit the offence. The learned trial Court came to the conclusion that Section 148 IPC is not made out and similarly Section 149 IPC is not attracted. It was then observed that Naresh, Umed Singh, Raghunath and Smt. Mukat Lado entered into the arena only after the deceased was assaulted by the first batch of the accused i.e. Kale alias Kuldeep and Parkash alias Braham Parkash, therefore, they cannot be said to have become members of the unlawful assembly (para 49 refers). On the basis of the aforesaid finding, the appellants have been convicted and sentenced as indicated hereinabove. Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -15- We have heard Mr. RS Cheema, learned Senior counsel assisted by Mr. JS Mehandiratta appearing for all the appellants and Mr. Sunil Katyal, learned Deputy Advocate General, Haryana. With their assistance we have gone through the entire record minutely. Mr. Cheema submits that the case of the prosecution collapses on the point of genesis of the occurrence itself as the complainant side has not come out with a true picture and concealed certain material facts. He submits that before recording the statement Ex. DF of Mehar Singh at 11.55 PM, statement of Raghunath Ex. DX (DDR No. 23) was already recorded by the police at 7.15 PM in which Raghunath appellant had given the true sequence of the occurrence. Mehar Singh has subsequently given a twist to the entire case. Dwelling upon his arguments, the learned counsel submits that a very important fact which goes to the root of the case is that Mehar Singh does not talk a word about the presence of Raghunath and his wife Lado at the spot whereas these two persons did receive injuries in the said occurrence as is clear from the statement of Dr. GS Sheikhawat PW5 who had medico legally examined both of them at 8.30 PM on the date of occurrence itself and found as many as five injuries. One of the injuries on the person of Raghunath has turned out to be grievous in nature being fracture of thumb as is clear from the statement of Dr. B.B. Aggarwal, Radiologist, General Hospital, Gurgaon (PW3). From the aforesaid weakness Mr. Cheema wants to develop that the complainant side is Criminal Appeal No. 521-DB of 1998 & Criminal Appeal No. 549-DBA of 2005 -16- intentionally suppressing the genesis of the occurrence and that by itself is sufficient to disbelieve the prosecution case. Another material fact on which learned counsel is relying very heavily is that the occurrence had taken place in front of the house of Raghunath as is clear from scaled site plan Ex. PD prepared by Mool Chand Punia, Draftsman PW4 wherein point 'A' (place of occurrence) is shown in front of house of Raghunath. House of Mehar Singh is also shown on one side. According to the learned counsel this very fact strengthens the initial report Ex. DX lodged by Raghunath wherein it is stated that Mahabir Singh in a drunken condition had come to his house, started abusing them in filthy language and ultimately caused injuries to him and his wife Lado. It is next argued that Mahabir Singh smelt alcohol when