Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision : October 28, 2006 1. Criminal Appeal No. 577-DB of 1997 Hansa, Sanjay and Dharma versus State of Haryana 2. Criminal Appeal No. 588-DB of 1997 Kapura alias Kapoor Singh versus State of Haryana Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal Present : Ms. Baljeet Kaur Mann, Advocate for the appellants Mr. Sunil Katyal, Deputy Advocate General, Haryana Virender Singh, J. Vide this judgment we are disposing of the aforesaid two appeals filed by four appellants (hereinafter to be referred as 'accused') against their conviction and sentence awarded by the learned Sessions Judge, Sonepat vide impugned judgment dated 28/30.7.1997. The conviction and sentence of each of them is as under: Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -2- Hansa Under section 148 IPC To undergo imprisonment for a period of two years. Under section 302 IPC substantively To undergo imprisonment for life and to pay a fine of Rs 5000/-, in default of payment of fine to further undergo RI for one year Under section 323 read with section 149 IPC To undergo imprisonment for a period of six months. Sanjay, Dharma and Kapura Under section 148 IPC To undergo imprisonment for a period of two years each. Under section 302/149 IPC. To undergo imprisonment for life and to pay a fine of Rs 5000/- each, in default of payment of fine to further undergo RI for one year each. Under section 323 read with section 149 IPC To undergo imprisonment for a period of six months each. All the sentences were, however, ordered to run concurrently. Fine if recovered is ordered to go to the widow of the deceased Jai Singh, as compensation. One Jugti, Sarpanch of the village was also booked with the aforesaid four accused but he died during trial. Deceased in this case is Jai Singh son of Baru aged about 25 years. The case was registered on the statement of PW5 Ram Rattan son of Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -3- Surja resident of village Tharu (another village). The occurrence had taken place in village Kabirpur (falling within the jurisdiction of Police Station Sadar Sonepat) on 3.1.1993 at 10.00 AM. On the basis of the statement (Ex. PQ) of aforesaid Ram Rattan recorded at 11.30 AM by SI Khazan Singh PW10 in General Hospital, Sonepat, formal FIR Ex. PQ/2 was registered on the same day under sections 302,323, 148, 149 IPC. The case of the prosecution is that 4/5 days prior to 3.1.1993, Phool Kumar son of Baljit was admitted in Batra Nursing Home, Sonepat where Krishan had gone to verify his well being. The accused Kapura alias Kapoor Singh had met Krishan outside Nursing Home. Kapura was on his scooter. He dashed his scooter against Krishan. An altercation ensued between Kapura and Krishan and Krishan informed about this to his father Tara Chand who remonstrated the accused. Both the parties were challaned under security proceedings and subsequently bailed out. It is then alleged that on account of intervention of the respectables of the village, the matter was settled but the accused had been nourishing a grudge and on 3.1.1993 at about 10.00 AM, when Jai Singh, Ram Rattan (the complainant) Sarjo, Kela, Dharmo, Premo and Birmati were sitting outside the house of Baru and were talking with each other, accused Dharma, Sanjay, Kapura armed with lathies and Hansa armed with gandasi and Jugti (died during trial) who was empty handed arrived there. Jugti raised a lalkara that they had now an opportunity to teach a lesson to the complainant side. It is then alleged Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -4- that Hansa accused gave gandasi blow on the head of Jai Singh. Dharma, Kapura and Sanjay accused who were armed with lathies also caused injuries to Dharmo, Sarjo, Kela, Birmati and Premo. The lady-folk picked up brick bats and threw at them. It is then alleged that the complainant and Sham intervened and separated both the sides. The injured were removed to General Hospital, Sonepat, where Jai Singh was declared dead. The investigation of the present case was conducted by Inspector Khazan Singh PW10, who after receipt of the ruqa from General Hospital, Sonepat went there and recorded statement Ex. PQ of Ram Rattan PW which was sent for the registration of the formal FIR. Thereafter he prepared the inquest report Ex. PJ/1 for the purpose of getting the post mortem examination. A cot which was blood stained was taken into possession by him vide recovery memo prepared at the spot. He then inspected the place of occurrence and in the presence of Ram Rattan and Sham lifted the blood stained earth from there which was taken into possession vide separate memo Ex. PK/1. Rough site plan Ex. PK/2 was prepared at the spot. On 11.1.1003, Hansa, Sanjay and Kapur Singh alias Kapura were arrested. Upon the disclosure statements Ex. PX suffered by Hansa, Ex. PR suffered by Sanjay and Ex. PS suffered by Kapura, blood stained gandasi from Hansa and two lathies (not blood stained) were recovered from Sanjay and Kapura. These were also taken into possession vide recovery memo Ex. PS/1, Ex. PR/1 and Ex. PX/1. Accused Dharma Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -5- was arrested on 20.1.1993 and upon his disclosure statement Ex. PT, a lathi was recovered which was also taken into possession. After the completion of the investigation all the accused were challaned. The charge sheet reveals that accused Hansa was charged under section 302 IPC substantively whereas Sanjay, Dharma and Kapura were charged under sections 148, 302 read with section 149 and 323 read with section 149 IPC. As stated above, Jugti their co-accused had already died. The prosecution in order to substantiate the charges has examined the following witnesses:- Anil Kumar (PW1) has prepared the scaled site plan Ex. PA. Dr. Promila Jain (PW2) had radiologically examined Kela, Dharmo, Premwati and Sarjo on 4.1.1993 and as per her report, the aforesaid injured had not received any grievous injury. She had also proved X-ray films. In her cross-examination she had stated that Hansa accused was radiologically examined on 6.1.1993 and she found fracture of left parieto temporal region. She had also proved the report in this regard. She had also examined Sanjay son of Om Parkash, Siri Bhagwan son of Bansi, Khazani wife of Mahabir and did not find any fracture on their person. Dr. O.D.Sharma (PW3) had conducted the autopsy on the dead body of Jai Singh on 3.1.1993 and found the following injuries on his person:- Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -6- 1. An incised wound of the size 10 cm x 1 cm x bone deep. Margins of the wound were clean cut when seen under magnification. On further exploration, underlying bone i.e. Left parietal bone was sharply cut. The wound was present on the left parietal region of the scalp. On opening the skull, the brain cavity was having blood clots. Brain matter was found lacerated. 2. An incised wound of 1 cm x 1/2 cm x 1/2 cm present on the posterior aspect of left fore-arm, 4 cm below the left elbow. Clotted blood was present in the muscle mass. According to the opinion of this doctor, the injuries on the person of Jai Singh were possible by gandasi allegedly recovered from Hansa. Dr. Subhash Mathur PW4 had medico legally examined Kela wife of Tara Chand and found two lacearated wounds. He had proved MLR Ex. PK. On the person of Premwati one lacerated wound and one abrasion were noticed. Copy of her MLR was proved as Ex. PK/1. On the person of Dharmo wife of Baru one lacerated wound was found. Her MLR is Ex. PK/2. MLR of Birmati another injured is Ex. PK/3 whereas MLR of Sarjo wife of Piare Lal was exhibited as Ex. PK/4. This doctor has also proved the ruqa sent by him to the police. He has also stated that on Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -7- 3.1.1993, he had also examined Hansa accused and found two lacerated wounds. He had proved his MLR as Ex. PL. On the person of Sanjay accused, this doctor had noticed one lacerated wound and his MLR was proved as Ex. PL/1. On the person of Khazani this witness has noticed one lacerated wound and reddish contusion. Her MLR was also proved. He has also proved the ruqa sent by him to Police Post, General Hospital, Sonepat informing about the admission of the aforesaid persons. This witness has further deposed that possibility of injuries by lathies on the persons of Kela, Premwati, Dharmo, Sarjo and Birmati cannot be ruled out and Dharmo and Sarjo might had suffered brick bat injuries. The said doctor on 3.1.1993 had examined Siri Bhagwan and detected one lacerated wound. He also ruled out that this injury could be the result of fall. Ram Rattan PW5 is the complainant-FIR lodger. He reiterated whatever was stated by him in his initial statement Ex. PQ. Kela injured appeared as PW6 and Birmati injured as PW7. Prem Singh PW8 is a witness before whom accused had suffered a disclosure statement whereupon recoveries of gandasi and lathies were effected. Inspector Samay Ram PW9 was SHO of Police Station Sadar Sonepat. He had recorded statement of Anil Kumar Draftsman, one or two other police officials of formal nature. Final report under section 173 Cr.P.C. was also prepared by him. Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -8- SI Khazan Singh PW10 is the Investigating Officer. The investigation conducted by him is also indicated by us in the preceding paras. The plea taken by the accused as emerges from their statements recorded under section 313 Cr.P.C. is that the complainant party was aggressor and they had caused injuries to them and in their defence they had also given them injuries. In defence they had re-called Dr. Subhash Mathur who deposed that on 3.1.1993, he had examined Siri Bhagwan sons of Bansi and found one lacerated wound. Khazani wife of Mahabir was examined as DW1 who deposed that her father-in-law Jugti (since expired) was Pardhan of five villages and Jai Singh, Baru, Dhamo, Premo were jealous of Jugti being Pardhan of five villages. She then stated that Kapura was beaten by Krishan one day prior to the present occurrence and on the date of occurrence Siri Bhagwan, Hansa and Sanjay were sitting with her when Jai Singh, Dharmo, Premo Kiran and Sarjo etc. appeared with lathies and dandas and caused injuries to them. She has further stated that when Kapura accused was beaten by Krishan, Mahabir had reported the matter to the police and both the parties were challaned under security proceedings. On the date of occurrence, Jai Singh (since deceased) had raised a lalkara that they would teach a lesson for reporting the matter to the police about the incident relating to Kapura and Kishan upon which Hansa accused asked Jai Singh that he should not pick Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -9- up a quarrel over a petty matter but Jai Singh inflicted blows to Hansa and when Hansa had fallen down she inflicted Phawra blow on the person of Jai Singh in their safety. Thereafter Jai Singh had left the spot and Kela caused injuries to her and she also reciprocated. Siri Bhagwan had inflicted certain injuries on the complainant side and he too had received injuries in this occurrence. It is then stated by this witness that on the date of occurrence, Jugti and Kapura had come to the court in connection with bail of Mahabir and Dharma was not present at the time of occurrence. After appreciating the evidence, the learned trial court has convicted and sentenced all the accused as stated herein above. Hence, this appeal. We have heard Ms. Baljeet Kaur Mann, learned counsel for all the appellants and Mr. Sunil Katyal, learned Deputy Advocate General, Haryana. With their assistance, we have also gone through the entire evidence and other relevant documents from trial court records. The main attack launched by Ms. Mann on the prosecution is that in fact the complainant was the aggressor as the motive was in their bosom to open an assault on the accused and in this occurrence, Hansa, Sanjay (accused herein) and Khazani and Siri Bhagwan had received injuries as is clear from the medical evidence on record. The injuries on the person of Hansa is on the head which ultimately turned out to be grievous. The complainant side is not explaining the injuries on the person of two Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -10- accused and two others (not arrayed as accused) and this flaw in itself is enough to infer that the complainant side is intentionally suppressing the genesis of the present occurrence. The learned counsel in order to develop her case on this aspect states that once origin of the occurrence is intentionally suppressed by the complainant, the defence plea taken up by the accused assumes importance and in the case in hand, Smt. Khazani DW1 who admittedly had received injuries in this occurrence has put forth a specific defence asserting that when Hansa accused was injured by Jai Singh (since deceased) and had fallen on the ground she took a Phawra and gave injuries to Jai Singh. The complainant party is silent about the presence of Smt. Khazani as is evident from the testimony of PWs namely Ram Rattan, Kelo and Birmati PW5 to PW7 whereas she was examined after receiving injuries on the date of occurrence itself. Therefore, the defence as set up by the accused is strengthened from the aforesaid weakness. These factors alone should be considered enough for discarding the case of the prosecution in its entirety, the learned counsel so contends. Ms. Mann then submits that even if the case of the prosecution as already set up is taken to be true on the face of it, it cannot be said that all the accused herein had the common object viz to commit murder of Jai Singh who had received only one injury at the hands of Hansa and from the totality of facts and circumstances it can be said that except Hansa accused, the other had the common object to cause injuries only to the complainant Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -11- party and not beyond that. Therefore, their conviction under section 302 read with section 149 IPC is not sustainable. Ms. Mann in the same strain goes on to contend lastly that in the present set of circumstances even the conviction of Hansa accused under section 302 IPC is not proper and he may be convicted under section 304 Part-II IPC holding that at the most he had the knowledge that his act was likely to cause death. On the basis of the aforesaid submissions, Ms. Mann prays for acquittal of all the accused or in the alternative, diluting the sentence. Mr. Katyal, the learned State counsel controverts the averments advanced by Ms. Mann and submits that all the accused including Jugti (since dead) had gone to the house of Jai Singh where he and other injured persons were already present. They all were armed with different weapons including gandasi and opened the attack causing injuries to many persons of the complainant side. From these facts, the common object of accused can be inferred comfortably. According to the learned State counsel, once the un-lawful assembly is formed then all the members of the said assembly are vicariously liable for the act of other and in the present case Hansa who was allegedly armed with gandasi gave such a forceful blow on the head of Jai Singh which ultimately proved to be fatal and within short span of time he was declared dead by the doctor immediately after his arrival in the hospital. According to the learned State counsel all the accused have also Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -12- caused injuries to the ladies after giving injury to Jai Singh and therefore, their conviction under sections 302/149 IPC as already recorded deserves to be confirmed. The learned State counsel then submits that even if the prosecution has not properly explained the injuries on the person of two of the accused, the same will not affect the case of the prosecution as each case has to be judged on its own facts and the case in hand speaks volumes of active participation of all the accused and therefore, their conviction as recorded deserves to be confirmed. In order to demolish the case of the prosecution, Ms. Mann sets store by non-explanation of the injuries on the person of Hansa and Sanjay accused. In the initial statement Ex. PQ, Ram Rattan complainant does not say a word about the injuries on the person of the accused. When stepped into witness box he, however, stated that the complainant side had pelted brick bats on the accused in their self defence and was confronted with his previous statement (Ex. PQ) on this aspect. PW6 Kela wife of Tara Chand had stated in her examination-in-chief that the complainant side had pelted brick bats on the accused side in self defence. She was not confronted with her previous statement on this aspect. The reason for this appears to us is that in her cross-examination she stated that she did not make any statement to the police. Birmati wife of Rajinder PW7 was also confronted on this aspect with her previous statement Ex. DC where the throwing of brick bats was not mentioned. We are also conscious of the fact that doctor had sent Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -13- ruqa to the police with regard to the medico legal examination of Hansa, Sanjay (accused herein), Khazani and Siri Bhagwan. The question whether the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain would mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence was referred to a three Judge Bench of Hon'ble Apex Court in Ram Sunder Yadav vs State of Bihar 1998(4) RCR (Criminal) 54, in which their Lordships while referring to the other judgments of the Hon'ble Supreme Court held that the prosecution is not obliged to explain injuries on the person of accused in all cases and in all circumstances and it depends upon the facts of each case. In this regard another latest judgment of Hon'ble Apex Court rendered in Shankar Narayan Bhadolkar vs State of Maharashtra 2004 (2) RCR (Criminal) 508 can also be referred to. From the aforesaid settled legal position it can be said that non- explanation of injuries can assume importance only as per the facts of each case and where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the court can sift the truth from falsehood, the mere fact that the injuries are not explained by the prosecution, cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -14- In the case in hand except Hansa who has received one injury on the head which ultimately turned out to be grievous as per the radiological examination, the other injuries on the person of Sanjay accused or as a matter of Khazani and Siri Bhagwan are minor and of superficial nature which, in our view, are not going to affect the case of the prosecution. Therefore, an attempt made by Ms. Mann to dislodge the case of the prosecution on this aspect turns out to be hollow. We are appreciating the case of the prosecution yet from another angle. As per the scaled plan Ex. PA house of Jugti is shown in front of flour mill of Baru. House of Hansa, Dharma and Kapura are not depicted in the said site plan. Sanjay accused is son of Parkash and Parkash is son of Jugti. Krishan allegedly had an altercation with Kapura accused one day prior to the occurrence is nephew of Baru as is clear from the cross- examination of Khazani wife of Mahabir (the accused side). Baru and Tara Chand are two real brothers and Jai Singh deceased was son of Baru. Relation of Jugti with Hansa, Dharma and Kapura has not been projected anywhere either by the prosecution or by the accused. Dharma accused is shown to be resident of Sonepat. However, the other accused are resident of village Kabirpur. All this goes to show that all the accused had initially assembled at one place i.e. in the house of Parkash son of Jugti shown in front of the place of occurrence and thereafter they proceeded towards the flour mill of Baru. The occurrence had allegedly taken place in an open Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -15- space outside the flour mill of Baru as is depicted in scaled site plan Ex. PA. There is hardly any distance between the house of Parkash son of Jugti and place of occurrence. The ladies who were injured at the hands of complainant party are also from the family of Tara Chand and Baru. The case set up by the complainant side is that they were sitting in the street in front of house of Baru. In villages, a small flour mill (chakki) is run from the house itself. Meeting of all the accused at a particular point and then proceedings towards the house of Baru Ram is a circumstance from which we can comfortably observe that all the accused including Jugti (since dead) after forming an un-lawful assembly had assaulted the complainant side and in that eventuality, even if they had received some injuries at the hands of the complainant, the said fact would be of no help to them. Khazani and Siri Bhagwan might have appeared at the scene in between and received some injuries. Therefore, the defence set up by the accused that Jai Singh received injury at the hands of Khazani (DW) is neither here nor there. In our view, accused side had made an attempt to take advantage by producing her as defence witness for the reason that her presence is not shown by the complainant side. We, therefore, reject the defence plea being not appealing to the judicial conscience. On the basis of the evidence before us, we are now assessing as to whether all the accused before us can be convicted for the main offence under section 302 IPC with the aid of section 149 IPC. Admitted position Criminal Appeal No. 577-DB of 1997 & Criminal Appeal No. 588-DB of 1997 -16- is that there is only one injury on the person of Jai Singh since deceased and the said injury is attributed to Hansa accused who was allegedly armed with a gandasi. No doubt as per Dr. O.D.Sharma PW3 who had conducted the autopsy on Jai Singh stated that there were two injuries on his person but the second injury which is in the shape of incised wound of the dimension of 1 cm x 1/2 cm x 1/2 cm on the posterior aspect of left fore-arm, 4 cm below the left elbow