IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Criminal Appeal No. 54-DB of 2000 Dated of Decision:- April 27, 2009 Dalbir and others ....APPELLANTS VERSUS State of Haryana ....RESPONDENT 2) Criminal Appeal No. 150-DB of 2000 Lilu and others ....APPELLANTS VERSUS State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Sh. Jainainder Saini, Advocate for the appellants (In Crl.Appeal No.54-DB of 2000). Sh. Gorakh Nath, Advocate for the appellants (In Crl.Appeal No.150-DB of 2000). Sh. Kulvir Narwal, Addl. Advocate General Haryana. ------ 2 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 by a common order, as they arise of the same judgment of the learned Addl. Sessions Judge, Hisar, who convicted Dalbir son of Giani Ram, Dharam Pal son of Giani Ram, Raja son of Giani Ram, Lilu son of Mange Ram, Bhira son of Mange Ram and Ishwar son of Mange Ram under Sections 302/149/323/148 IPC and sentenced them to undergo life imprisonment under Section 302 read with 149 IPC, one year R.I. under Section 148 IPC and six months R.I. under Section 323 read with Section 149 IPC. They were directed to pay a fine of Rs.5,000/- each under Section 302 IPC, in default to further undergo one year R.I. Sentences were ordered to run concurrently. Attar Singh, Shishpal, Roshan, Sukhbir, Bobhal, Chander Pati and Krishna were acquitted by the learned trial Court. State has not filed an appeal against their acquittal. The case of the prosecution is unfolded by the statement Ex.PL of Ram Phal. Ram Phal stated, that he is a resident of Village Badhawar and is a labourer. He has one brother and two sisters. He is the eldest and younger to him is Subhash. He has two younger sisters; namely Nirmala and Sheela. Both he and Subhash are married and lived with their parents. In March 1996, their neighbours Lilu, Bhira, Ishwar Singh, Raja sons of Mange Ram entered their house and inflicted injuries on the complainant party. A case was registered against these persons and they were arrested and challaned. On 6.6.1997, Sukhbir son of Mange Ram had beaten the 3 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 complainant and his brother and abused them. Sukhbir was challaned under Sections 107/151 Cr.P.C. On 11.6.1997 Ram Phal and his brother Subhash along with their father Zile Singh had come to Barwala to buy household goods. After they had bought the household goods, they boarded a four wheeler. They got down at the bus stand of Village Badhawar and were going towards their house. It was 6.00 p.m. On the way from the side of the village, Lilu armed with a jaily, Bhira armed with a Jelwa, Ishwar armed with a lathi, Shishpal armed with a lathi, Sukhbir armed with a jaily attacked them. From the backside of the bus stand of Village Badhawar, Raja armed with a lathi, Dharam Pal armed with a lathi, Dalbir armed with a lathi, Attar armed with a lathi, Roshan armed with a lathi, brother-in-law of Dharam Pal armed with a lathi, Smt. Chander amred with a lathi, Smt. Krishna armed with a lathi came there shouting lalkaras, that Zile Singh should not be allowed to escape. Complainant along with his brother and father were surrounded. Lilu gave a jaily blow on the left ankle of Zile Singh. Bhira gave a jaily blow on the right ankle of Zile Singh. Ishwar gave a lathi blow on the right ear of Zile Singh. When Ram Phal tried to rescue his father, Lilu gave a jaily blow on Ramphal’s right shouder. Both Ram Phal and Subhash out of fear ran away and stopped at some distance. From there, they saw that their father Zile Singh had fallen down because of these injuries. Thereafter Dharam Pal, Dalbir and Raja gave injuries on the right hand of Zile Singh. Bhira gave a jaily blow on the head of his father. Smt. Chander and Smt.Krishna instigated them to keep giving injuries to Zile Singh. Thereafter all the accused ran away towards their houses. Ram Phal and Subhash then took Zile Singh to C.H.C., Barwala by means of Jeep. The 4 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 doctor at Barwala advised them to remove Zile Singh to General Hospital, Hisar. He was taken to General Hospital, Hisar for medical treatment. Zile Singh was given medical aid, but he succumbed to his injuries. On the basis of this statement, FIR Ex.PL/2 was recorded on 12.6.1997 at 1.10 a.m. and the special report reached to the J.M.I.C., Hisar on the same day at 6.45 a.m. The prosecution to prove its case brought into the witness box, Dr. Arun Gupta PW1, Dr. J.S.Bhatia PW2, C.Suresh Kumar PW3, C.Jagmal Singh PW4, Radhe Sham Draftsman PW5, Dr. Daya Nand PW6, Jagat Singh SI PW7, Ramphal PW8, Subhash PW9, Ram Kumar ASI PW10, Maha Singh ASI PW11 and Banwari Lal SI PW12. Dr. Ravinder Singh DW1 was examined in defence. Learned counsel for appellants has argued, that appellants Dalbir, Dharam Pal and Raja have all been attributed one injury i.e. on the right arm of the deceased given by lathis. Dr. Arun Gupta PW1 and Dr. J.S.Bhatia PW2 have given in their M.L.R. that there is only one injury on the right arm of the deceased. The presence of both the eye witnesses, Ram Phal PW8 and Subhash PW9 is doubtful. Ram Phal PW8 got himself examined on 14.6.1997 by Dr. Daya Nand PW6. The nature of injury on his body is a minor abrasion. It has come in evidence of Dr. Arun Gupta PW1 and Dr. J.S.Bhatia PW2, that Ram Phal PW8 did not show his injuries to them. If he had been injured on the day of occurrence, he would not have waited for three days to have himself medically examined. In fact this injury was given by a friendly hand to make him a stamped witness. Both Ram Phal PW8 and Subhash PW9 in their testimony before the Court have stated, that 5 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 when they picked up their injured father to put him in the jeep, their clothes were smeared with blood. The Investigating Officer Banwari Lal SI PW12 has stated, that there was no blood on the clothes of Ram Phal PW8 and Subhash PW9. The weapons used by appellants Lilu and Bhira are jaily and jelwa respectively. Both these weapons will cause penetrating injuries, as they have 2 to 5 prongs, if they are used thrust-wise. Dr. Arun Gupta PW1 has opined, that there was no penetrating wounds on the person of the deceased. During trial, there were 13 accused, who were charged. The learned trial Court in its wisdom acquitted seven out of them and convicted the present appellants. In their statement under Section 313 Cr.P.C., Sukhbir and Chander Pati, who were arrayed as accused by the trial Court, have stated that they were attacked by the complainant party and it was in self defence they gave injuries to the deceased. Both Sukhbir Singh and Chander Pati have been acquitted by the learned trial Court. State has not filed any appeal against the acquitted of these accused. Learned counsel for the State has argued, that FIR Ex.PL/2 is prompt. Occurrence had taken place on 11.6.1997 at 6.00 p.m. FIR Ex.PL/2 came into existence on 12.6.1997 at 1.10 a.m. and the special report reached the J.M.I.C., Hisar on the same day at 6.45 a.m. The benefit of delay has already been given to the accused party, of which seven have been acquitted and six appellants have been convicted by the learned trial Court. 6 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 Injuries on the person of the deceased given by appellants Dalbir, Dharam Pal and Raja on the right hand are multiple fractures. Multiple fractures could not be given by one dang blow, but several dang blows. Both the eye witnesses Ram Phal PW8 and Subhash PW9 had accompanied their father Zile Singh to Barawala town to purchase household goods, but after attending a political rally and purchasing household articles, when they were coming back, they were waylaid near the bus stand of their village by the appellants and inflicted injuries. Appellants had not reconciled to the earlier dispute, when they were charged under Sections 107/151 Cr.P.C. Ram Phal PW8 is a stamped witness and was injured in the occurrence. He being examined on 14.6.1997 by Dr. Daya Nand PW6 after a gap of three days has no relevance, as Dr. Daya Nand PW6 has opined, that the injuries could be caused between 3 to 7 days. We have heard the learned counsel for the parties and perused the record with their assistance. The injuries on the person of the deceased are as under: - “1. A lacerated wound 8 cm x 4 cm. in size with swelling with medial surface of left leg about 9 cm. from the left ankle joint. The wound was stitched. The stitches were opened. 2. On opening the dressed wound of right leg it was found that there was a marked swelling about 10 cm x 6 cm. On the anterior surface of the right leg. The blood was oozing from different points of leg. On dissection the underlying both tibia and fibula bones were found 7 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 fractured. The spikes of the bone was protruding from the skin. 3. There was a swelling all over the right arm at elbow joint and forearm with multiple bleeding points on anterior medial and lateral surface. On dissection the underlying humerous radius and ulna bones were found fractured badly. Oozing of the blood was seen from the multiple wound. 4. On opening the dressing of the wound on the right side of the forearm there was a lacerated wound of the size .5 cm x 0.5 cm. on the right side of the forehead just above the right supra orbital border. On dissecting the wound it was found that the underlying frontal bone of the scalp was fractured and clotted was seen underlying the bone of the affected part of the brain which was injured. 5. Stitched wound on right pinna about 6 cm. in length. The post-mortem was conducted on the body of Zile Singh on 12.6.1997 at 11.30 a.m. by Dr. Arun Gupta PW1. Injury No.3 is a swelling on the right arm at elbow joint and forearm with multiple bleeding points. The radius and ulna bones were fractured. As per the prosecution, this injury was given by appellants Dalbir, Dharam Pal and Raja. It is difficult to reconcile that three persons armed with lathis will be in a position to give an injury on exactly the same part of the body simultaneously or for that matter, one by one. An accused, when he gives an injury does not discuss with the other accused as to which part of the body is to be injured by him, but at that moment of time, he gives injuries on any part of the body, which comes before him. 8 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 In FIR Ex.PL/2, out of the three appellants i.e. Dalbir, Dharam Pal and Raja, none has been attributed singly as to who gave injury No.3 on the right arm of the deceased. In the evidence before the Court, both Ram Phal PW8 and Subhash PW9 have also on oath stated, that injury on the right arm of the deceased was given by appellants Dalbir, Dharam Pal and Raja. It seems, that one of the appellants gave the injury and others have been roped in by complainant Ram Phal PW8. We have tried to extract as to who out of three appellants i.e. Dalbir, Dharam Pal and Raja gave the injury on the right arm of the deceased. After going through the evidence of Ram Phal PW8 and Subhash PW9, we have not been successful, nor has the State counsel been successful to point out that out of the three, who gave the injury on the right arm of the deceased. We have no option, but to give the benefit of doubt to all the three appellants. Appellants Dalbir son of Giani Ram, Dharam Pal son of Giani Ram and Raja son of Giani Ram are acquitted of the charges framed against them. Their conviction and sentence is set aside. Similar is the case of appellant Lilu, where again injury on the left knee of the deceased i.e. injury No.1 has been shown to be on the left ankle joint. Both the eye witness Ram Phal PW8 and Subhash PW9 in Court and in FIR Ex.PL/2 have stated that the injury has been given on the left knee. There is no injury on the left knee. Injury No.1 is on the left ankle. The statements of the eye witnesses in Court and in the FIR are only to falsely implicate appellant Lilu. The medical evidence does not corroborate the ocular account as put forward by both Ram Phal PW8 and Subhash PW9. Lilu son of Mange Ram is given the benefit of doubt and 9 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 acquitted of the charges framed against him. His conviction and sentence is also set aside. Now coming to the other appellants Bhira and Ishwar; they are the ones, who have given the injuries to deceased Zile Singh. Both Ram Phal PW8 and Subhash PW9 have categorically stated, that appellant Bhira was armed with a jelwa and appellant Ishwar was armed with a lathi. Both these weapons of offence were used by appellants Bhira and Ishwar lathiwise. Jelwa was not used thrust-wise; that is why there was no penetrating wound. Statements of the acquitted accused Sukhbir and Chander Pati under Section 313 Cr.PC. stating that a fight ensued between the complainant party and them was only to sidetrack the Court from the real story. Going through the evidence of Ram Phal PW8 and Subhash PW9, the truthful version comes out. Their statements inspire confidence qua appellants Bhira and Ishwar, who it is clear have given the fatal injuries on the head and other parts of the body of the deceased. Occurrence had taken place on 11.6.1997 at 6.00 p.m. FIR Ex.PL/2 came into existence on 12.6.1997 at 1.10 a.m. and the special report reached the J.M.I.C., Hisar on the same day at 6.45 a.m. i.e. after a gap of 12 hours. Delay, if any, the benefit of which has already been given to the appellants. The testimony of Ram Phal PW8 qua his medical evidence, that he was examined on 14.6.1997 by Dr. Daya Nand PW6 does not smack of truthfulness. He though is an eye witness to the occurrence, but tried to make himself a stamped witness by inflicting a simple injury on himself by a friendly hand. The nature of injury is a brownish abrasion on his right 10 Criminal Appeal No. 54-DB of 2000 and Criminal Appeal No. 150-DB of 2000 shoulder. Dr. Daya Nand PW6 has opined, that it was a simple injury caused with a blunt weapon. The duration of the injury was 3 to 7 days. The MLR being Ex.PK. We do not have any hesitation to come to the conclusion, that it is appellants Bhira son of Mange Ram and Ishwar son of Mange Ram, who caused injuries to deceased Zile Singh. They are convicted under Sections 302 read with Section 34 IPC. Both appellants Bhira and Ishwar are sentenced to undergo life imprisonment and to pay a fine of Rs.30,000/- each to Ram Phal and Subhash sons of deceased Zile Singh as compensation. With the above modification in conviction and sentence, appeal qua appellants Bhira and Ishwar is dismissed. Appeals qua appellants Dalbir, Dharam Pal, Raja and Lilu are allowed. (MEHTAB S.GILL) JUDGE (DAYA CHAUDHARY) April 27, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO