IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 249-DB of 1998 Dated of Decision:- January 06, 2009 Chhatar Singh and others ....APPELLANTS VERSUS The State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. R.S.Cheema, Senior Advocate with Sh. Jasdev Singh Mehndiratta and Ms Tanu Bedi, Advocates for the appellants. Sh. S.S.Randhawa, Addl. Advocate General Haryana for respondent. ------ MEHTAB S.GILL, J. This is an appeal against the judgment dated 29.4.1998/ 1.5.1998 of the learned Addl. Sessions Judge, Rewari, whereby he convicted Chhatar Singh son of Karan singh, Joginder Singh son of Chhatar Singh and Kaushalya wife of Chhatar Singh under Sections 302/34, 323/34 and 324/34 IPC. He sentenced them to undergo life imprisonment and to pay a fine of Rs.200/- each under Sections 302/34 IPC. In default of payment of fine to further undergo imprisonment for one month each. Under Sections 324/34 IPC, they were sentenced to undergo R.I. for two months each and under Criminal Appeal No. 249-DB of 1998 Sections 323/34 IPC to undergo R.I. for one month each. The sentences were ordered to run concurrently. The case of the prosecution is unfolded by the statement Ex.PR of Bala Devi given to HC Rajender Parshad at Safdarjang Hospital, Delhi on 11.6.1994 at 9.50 p.m. Bala Devi stated, that she is a resident of Jaitrawas village. Her husband Mahender Singh is the only son of his father. Their house and the house of Chhatar Singh son of Dev Karan, cousin of her husband but elder in age of her husband, were living jointly, but in different portions of the house. On 10.6.94 in the evening, it had rained and water had collected on their side. On 11.6.94 in the morning, her husband Mahender Singh removed some sand in order to clear the collected water. Bala Devi’s Jethani (wife of Chhatar Singh) Kaushalya quarreled with Mahender Singh, as to why he was clearing the rainy water and sending the water towards their side by removing the sand. Both then separated. At about 7-7½ a.m., Chhatar Singh asked Mahender as to why he had removed the sand. Mahender said that he wanted to drain out the water. An altercation took place. In the meanwhile, Joginder son of Chhatar Singh armed with a kulhari came there and hit Mahender on the head. Mahender fell down. Thereafter Chhatar gave a jailly blow on the head of Mahender, while he was lying down. Bala tried to save her husband, but Kaushalya, who was armed with a bankri, hit on the left hand under the elbow of Bala Devi. In the meanwhile, Joginder picked up a lathi and gave two blows on the head of Bala Devi. Bala Devi raised an alarm. Raghbir Singh intervened, otherwise they would have inflicted more injuries on them. Raghbir and Om Parkash arranged a vehicle and got her and her husband admitted in the hospital at Rewari. Her husband was referred to Delhi. On - 2 - Criminal Appeal No. 249-DB of 1998 the basis of this statement, FIR Ex.PR/2 was recorded under Sections 307/324/323/34 IPC on 12.6.1994 at 2.00 a.m. Mahender died on 12.6.1994 at 3.30 a.m. The offence was converted under Section 302 I.P.C. The special report was sent to the Ilaqa Magistrate. The prosecution to prove its case brought into the witness box, Dr. Vinod Kumar Yadav PW1, Ved Bhushan Yadav PW2,l Const. Satbir Singh PW3, Const. Sher Singh PW4, ASI Bhagwan Singh PW5, Karan Singh PW6, Ram Narain PW7, Sajjan Singh PW8, Smt.Bala Devi PW9, Rajender Parshad PW10, Niranjan Lal PW11 and Dr. G.K.Chobey PW12. Learned counsel for the appellants has argued, that the only witness before the prosecution is Bala Devi PW9, widow of the deceased and the other two eye witnesses i.e. Raghbir and Kalawati having been won over by the accused and were given up by the prosecution. The testimony of this witness (PW9) should not be believed, as she is an interested witness being the wife of the deceased. Bala Devi PW9 has stated that she did not narrate the occurrence either to Om Parkash or to the village people. This shows that she was not present when the occurrence took place. She was specifically asked by the defence counsel as to whether she narrated the incident to the village people; she replied in the negative, stating that they already knew about it. In the Daily Diary Report Ex.DA, it has been mentioned, that there was only one injury, which was given by appellant Joginder Singh. Name of the other appellants i.e. Chhatar Singh and Kaushalya do not find any mention. Dr. Vinod Kumar Yadav PW1, who had examined the deceased, has stated that there were two injuries on the head of the deceased, but Dr. - 3 - Criminal Appeal No. 249-DB of 1998 G.K.Chobey PW12 has stated, that there was only one injury on the head of the deceased. It is clear that the second injury, which is attributed to appellant Chhatar Singh, was only to falsely implicate him. Further Dr. Vinod Kumar Yadav PW1 has opined, that the injuries on the person of Bala Devi PW9 are superficial in nature. The motive for the commission of the offence is very frivolous, as both the parties i.e. the complainant and appellants were living in a joint house for a long time and were related to each other closely, such a quarrel could not have erupted. In fact the story put forward by the defence, that Bala Devi PW9 was caught in a compromising position with one Ram Kala. Her husband Mahender saw them in this manner and it was Ram Kala, who had committed the murder of Mahender. Even if we take the case of the prosecution in totality, it is a case where there was no meeting of minds and Section 34 I.P.C. would not be applicable. The quarrel erupted on a trivial matter of diverting the rain water. The fight took place suddenly and only one injury was inflicted allegedly by Joginder Singh, which was the fatal injury. Rest of the injuries are minor abrasions, which could be as a result of falling on the ground. Learned counsel for the State has argued, that there was meeting of minds. The three appellants had a common intention to teach Mahender a lesson for removing the sand. Appellants have been attributed specific injuries. The injury on the head of the deceased is a large injury and is five inch in length. In fact what has been opined by Dr. Vinod Kumar Yadav PW1, that there are two injuries on the head is the correct medical report. These injuries were stitched, which the autopsy doctor G.K.Chobey PW12 - 4 - Criminal Appeal No. 249-DB of 1998 could not analyse, as the wounds were stitched in such a way, that the injury looked to be one. The testimony of Bala Devi PW9 cannot be overlooked, as she herself is a natural witness and suffered injuries in the occurrence. Occurrence had taken place in the house in the early morning. It is natural for both the complainant and the accused parties to be present there. Bala Devi PW9 would not falsely implicate the first cousin of her deceased husband and his sons and let the actual culprits go scot free. The case does not fall within the parameters of a sudden fight, as the appellants came armed and gave injuries to the deceased. We have heard the learned counsel for the parties and perused the record with their assistance. The case of the prosecution revolves around the testimony of the sole eye witness Bala Devi PW9. Occurrence in this case had taken place at 7/7.30 a.m. on 11.6.1994. On the basis of which, FIR Ex.PR/2 was recorded on 12.6.1994 at 2.00 a.m. The delay in registering of the FIR was due to Mahender being alive after he was injured and he being taken to Safdarjang Hospital, Delhi so that his life could be saved. DDR Ex.DA was recorded by HC Rajender Parshad PW10 on the same day i.e. 11.6.1994 at 9.50 p.m. Name of only Joginder Singh son of Chhatar Singh is mentioned in DDR Ex.DA. DDR Ex.DB was recorded by Niranjan Lal PW11, who was then posted as SHO, PS Rewari. Names of the appellants are mentioned in DDR Ex.DB, which is registered under Sections 307/324/323/34 IPC, as at that time Mahender was alive. It was on 12.6.1994 at 3.30 a.m. when Mahender died, the offence was converted into Section 302 I.P.C. FIR Ex.PR/2 was registered on 12.6.1994 at 2.00 a.m. before the death of Mahender. Not - 5 - Criminal Appeal No. 249-DB of 1998 mentioning of the names of the appellants in DDR Ex.DA does not affect the prosecution case materially, as at that moment of time it was registered in Safdarjang Police Station, Delhi. What matters is that in DDR Ex.DB and FIR Ex.PR/2, names of the appellants, weapons of offence and the injuries have been clearly mentioned. Learned counsel for the appellants has laid a lot of stress, that in the autopsy report, as given by Dr. G.K.Chobey PW12, only one injury has been given on the head. The other injuries on the other parts of the body are superficial. The nature of injuries are reproduced as under: - “ 1. Stitched incised wound over right parital region, marrignes were crushed- length 12 cms. 2. Abrasion over left shoulder size 2x2 cms. 3. Abrasion aliputical in shape over right forearm posterior lateral aspect, 5x2 cms. 4. Abrasion over dorson of right index finger over middle phalanges 2x1.5 cms. 5. Abrasion over dorson of right middle finger 2x1 cms. 6. Abrasion over dorson of right little finger 2x1.5 cms. 7. Contusion left lower back 7x2 cms. 8. Abrasion over left shin of tibia 3x2 cms. All the injuries were ante-mortem in nature. Internal examination: Scalp: Extra Vasation of blood underneath scalp. Sculp-fracture of right parital parito frontal junction, fracture of right temporal, cut fracture, parital bone underneath, the wound number 1. Brain and Meniges- Brain was shifted to left, extradural, over fronto Pairtal region, brain oedematous, intraceribaral hameeton right temporal bone, contusion hamotomo, left temporal lobe and left paritallobe”. - 6 - Criminal Appeal No. 249-DB of 1998 Dr. Vinod Kumar Yadav PW1 examined Mahender on 11.6.1994 at 8.00 a.m. and found the following injuries on his person, which are reproduced as under:- “1. Lacerated wound on the scalp in the mid-line 12 cms behind the root of nose, 4.5x1x scalp deep. Advised X- ray. Margins were irregular. Bleeding was present. 2. A lacerated wound on the right parietal area, 11 cms above the right ear. Margins were irregular, size 4x1x scalp deep. Bleeding was present. Advised x-ray. 3. A contusion on the posterior aspect of right fore-arm in proximal half, 5X2.5 cms, pink colour. Advised X-ray. 4. An abrasion on the posterior aspect of right index, terminal phalnx, bleeding was present. 2x1 cm. Advised X-ray. 5. An abrasion on the posterior aspect of right middle finger, middle phlanx, bleeding 2x2 cms. Advised x-ray. 6. An abrasion on the right ring finger, middle phlanx, bleeding was present. 1.5x1 cm. Advised x-ray. 7. An abrasion on the posterior aspect of right little finger, terminal phalnyx. Bleeding was present. 1.5x1 cm. Advised x-ray. All the injuries were kept under observation and nature after x-ray. All the injuries were caused by a blunt weapon within probation duration of 6 hours. Ex.PB is the carbon copy of the medico-legal report, which bears my signatures”. The sole injury No.1 on the head of the deceased as shown by Dr. G.K.Chobey PW12 is a five inch long injury. As the wound was stitched by Dr. Vinod Kumar Yadav PW1, Dr. G.K.Chobey PW12 could not make out, that there were two injuries, as both were in the same line. - 7 - Criminal Appeal No. 249-DB of 1998 Bala Devi PW9 is an injured eye witness. She suffered the following injuries on her person:- “1. An incised wound on the posterior aspect of left forearm in the middle third, 3x1 Cm x skin deep. Margins were regular, bleeding and no creptius. 2. A defuse swelling on the summit of scalp. No crepitus and no mark of injury and no tenderness. 3. A defuse swelling on the left parietal area. No mark of injury was seen and no mark of tenderness”. Bala Devi PW9 could have been inflicted these injuries herself. Injury Nos.2 and 3 being on the scalp and parietal area. Injury No.1 is an incised wound on the left forearm. Her testimony before the Court is truthful and reliable. Her statement gets corroboration from FIR Ex.PR/2. Bala Devi PW9 would not have let the actual culprits go scot free for the death of her husband and implicated her husband’s first cousin Chhatar Singh and his two sons falsely. She not narrating the story to Om Parkash does not have any significance, as Om Parkash already knew as to what had happened. She in her testimony has emphatically stated, that the dispute was regarding draining out of rainy water. Hot words were exchanged. Joginder Singh hit a kulhari blow on the head of her husband Mahender from the blunt side. After that appellant Chhatar Singh gave a jaili blow on the head of her husband. When she tried to rescue her husband, Kaushalya gave a bankri blow on her left hand. Joginder picked up a lathi and gave her lathi blows. In her testimony before the Court, Bala Devi PW9 has stated as under: - - 8 - Criminal Appeal No. 249-DB of 1998 “ On 10.6.1994, at the time when my husband was having hot exchange with Smt.Kaushlya, accused Chhittar was present. It is correct that at the time of occurrence, Jogender accused had appeared from outside and I cannot say whether he was having any knowledge of the occurrence dated 10.6.1994. After the occurrence, when I was caring about my husband, there was bleeding from his head and I cannot say the number of injuries on his person including his head”. It is clear from her statement, that the injuries were inflicted after heated exchange of words had taken place between appellant Kaushalya and the deceased. It was this that instigated appellants Chhatar Singh and Joginder Singh to inflict injuries on the person of Mahender. Both the appellants and the complainant party were living next to each other in the same premises. Appellants Chhatar Singh and Joginder Singh at the heat of the moment lost control of themselves and inflicted injuries. We are of the considered opinion, that the case of appellants Chhatar Singh and Joginder Singh fall within the ambit of Section 304 Part-I IPC i.e. culpable homicide not amounting to murder. There was no intention on the part of appellant Kaushalya to inflict injuries on the person of the deceased. She only inflicted injuries on the person of Bala Devi PW9. There was no meeting of mind between appellant Kaushalya and other appellants, nor did she have any intention to inflict injuries on Mahender son of Hari Ram. Section 34 IPC cannot be applied to her. She is liable to be convicted under Sections 323/324 IPC. With the above discussion and observations, sentence of appellant Chhatar Singh son of Karan Singh is modified to seven years R.I. - 9 - Criminal Appeal No. 249-DB of 1998 and sentence of appellant Joginder Singh son of Chhatar Singh is modified to ten years R.I. under Section 304 Part I IPC read with Section 34 IPC. Appellant Kaushalya, who has not been found guilty under Section 34 IPC, is sentenced to six months R.I. each under Sections 323/324 I.P.C. Fine shall remain the same as already imposed by the Addl. Sessions Judge, Rewari. Appellants are directed to present themselves before the Chief Judicial Magistrate so that they could undergo the remaining part of their sentence, if not already undergone. With the above modification in conviction and sentence, appeal is dismissed. (MEHTAB S.GILL) JUDGE (L.N.MITTAL) January 06, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO - 10 -