Criminal Appeal No. 693-SB of 1996 1 Criminal Appeal No. 297-SB of 1997 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 693-SB of 1996 Date of Decision : 19.05.2009 1. Satish alias Ghanti son of Mehar Singh, aged 29 years, resident of Mohalla Kot, Sonepat. 2. Davender alias Ponga son of Mehar Singh, aged 23 years, resident of Mohalla Kot, Sonepat. ...Appellants Versus State of Haryana ....Respondent Criminal Appeal No. 297-SB of 1997 Date of Decision : 19.05.2009 Rajesh son of Ram Mehar, resident of Chikka Colony, Sonepat. ...Appellant Versus State of Haryana ....Respondent Criminal Appeal No. 693-SB of 1996 2 Criminal Appeal No. 297-SB of 1997 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Monika Jalota, Advocate, (Amicus-Curiae), for the appellants, in both the appeals. Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the respondent – State. * * * * SHAM SUNDER, J. This judgement shall dispose of Criminal Appeal No. 693- SB of 1996, filed by Satish alias Ghanti, and Davender alias Ponga, and Criminal Appeal No. 297-SB of 1997, filed by Rajesh, appellants, against the judgement of conviction dated 27.09.96, and the order of sentence dated 01.10.96, rendered by the Court of Additional Sessions Judge, Sonepat, vide which, it convicted Satish @ Ghanti, accused (since deceased), for the offence, punishable under Section 324 of the Indian Penal Code, and sentenced him, to undergo rigorous imprisonment, for a period of two years, and to pay a fine of Rs. 2000/-, in default thereof, to further undergo rigorous imprisonment, for a period of three months, whereas, Davender @ Ponga and Rajesh, accused, were convicted, for the offence, punishable under Section 323 of the Indian Penal Code, but were released on probation of good conduct. 2. The facts, in brief, are that on 03.10.95, at the time of Dussehra festival, Ramlila was being played in Kot Mohalla Dhanak Criminal Appeal No. 693-SB of 1996 3 Criminal Appeal No. 297-SB of 1997 Basti Sonipat, at about 10.00 P.M. Dharampal (now deceased), Dharambir, Balraj, and Chandan Lal, prosecution witness, Karambir, defence witness, as also Mukesh alias Dabbu, Satish alias Ghanti, Davender alias Ponga and Rajesh, accused, were present in the crowd of about 100/125 gents and ladies, which had assembled, to watch the Ramlila celebrations. At about 10.30 P.M, Mukesh, Satish and Davender, accused, abruptly started folding the chairs, which was resented to by Dharambir. Satish, accused, then abused Dharambir, and stated that he was to be taught a lesson. He then inflicted two injuries, with sword, on the right palm and the left elbow of Dharambir. He then rushed towards the stage, followed by Dharam Pal, deceased and Balraj. Mukesh, Davinder and Rajesh, accused, also followed them at the stage. Mukesh, accused, then inflicted a knife blow, on the abdomen of Dharampal. When Karambir, and Chandan Lal attempted to intervene then Davender, accused, caused injuries on the right elbow of Chandan Lal by means of a brick whereas accused Rajesh gave some slaps and fists to Dharambir. Thereafter, the accused decamped with their weapons. Dharambir, Dharam Pal and Chandan Lal who were rendered injured were taken to the General Hospital, Sonipat. 3. Dharam Pal, Dharambir, and Chandan Lal, injured, were medico legally examined on 03.10.95, at General Hospital, Sonipat by Dr. O.P. Gujaria PW12. Intimation PS was sent to the Police Post General Hospital, Sonipat, regarding the admission of the aforesaid injured in the hospital at about 11.40 P.M. Assistant Sub Inspector Criminal Appeal No. 693-SB of 1996 4 Criminal Appeal No. 297-SB of 1997 Rajinder Singh, PW10, reached General Hospital, Sonipat, and moved an application PH before the doctor at 12.30 A.M. on 4.10.1995 seeking opinion, as to whether, Dharam Pal and Dharambir were fit to make statements. Dr. O.P.Gujaria gave his opinion PH/1 to the effect that Dharam Pal had since been referred to the Medical College & Hospital, at Rohtak, and Dharambir was fit to make statement. 4. After obtaining the opinion of the doctor, the statement of Dharambir was recorded, on the basis whereof, first information report was registered. Assistant Sub Inspector Rajinder Singh, then went to the spot, and prepared the rough site plan PJ. He also handed over the blood stained pant of Dharam Pal, which was taken into possession, vide memo PK, in the presence of the witnesses. 5. On 4.10.1995, a message was received, from the Medical College Hospital, Rohtak, that Dharam Pal had expired at about 3.30 A.M. On receipt of the said message, Assistant Sub Inspector, Rajendra Singh, went there, and conducted inquest proceedings. Blood stained underwear of Dharam Pal, sealed in a packet, was produced before him, which was taken into possession, vide memo PL. After the death of Dharam Pal the offence was converted into one under Section 302 of the Indian Penal Code. 6. The post – mortem examination on the dead body of Dharam Pal was got conducted. On 05.10.95 Chaman Lal PW9, who was then posted as Inspector/Station House Officer, in P.S. City Sonipat, arrested accused Mukesh and Satish, in this case, and Criminal Appeal No. 693-SB of 1996 5 Criminal Appeal No. 297-SB of 1997 thereafter the investigation was again assigned to Assistant Sub- Inspector Rajinder Singh. Mukesh and Satish, accused, were interrogated, upon which Satish @ Ghanti made a disclosure statement, PM, to the effect, that he had concealed a sword, along the eastern side of the culvert of dirty channel, of which he only knew, and could get the same recovered, by pointing out. Simlarly, Mukesh, accused, suffered a disclosure statement PN, to the effect, that he had concealed a knife, in the bushes, near the culvert of dirty channel, of which he only knew, and could get the same recovered, by pointing out. In pursuance of their disclosure statements, they got recovered a sword P1, and a knife P2, respectively, which were taken into possession. Scaled site plan PC, was got prepared. After the arrest of the remaining accused, they were challaned. 7. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 302, 324 and 323, read with Section 34 of the Indian Penal Code, was framed against the accused, which was read over and explained to them, to which, they pleaded not guilty and claimed judicial trial. 8. The prosecution, in support of its case examined Mool Chand, Head Constable (PW1), Ram Kumar, Constable (PW2), Inderpal, Constable (PW3),Dr. Sunita Siwach (PW4), Dharambir (PW5), Balraj (PW6), Chandan Lal (PW7), Mohan, Constable (PW8), Criminal Appeal No. 693-SB of 1996 6 Criminal Appeal No. 297-SB of 1997 Chaman Lal, retired Inspector (PW9), Rajinder Singh, Assistant Sub Inspector (PW10), Dr. Mrs. Rupinder Kaur (PW11), Dr. O.P. Gujaria (PW12). Thereafter, the Public Prosecutor for the State tendered into prosecution evidence PT report of the Forensic Science Laboratory, and PU, report of Serologist, and closed the same. 9. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Mukesh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that the witnesses and the family members of the deceased were telling him that the real murderer was somebody else. 10. Accused Satish @ Ghanti, and Devinder @ Ponga, in their statements, under Section 313 of the Code of Criminal Procedure, stated that they were not present, at the relevant time. 11. Accused Rajesh, in his statement, under Section 313 of the Code of Criminal Procedure, stated that he was implicated, on account of dispute with Dharambir and he had no connection with the dispute. He further stated that he was Jat by caste, and the remaining accused, the deceased, and the injured, were Dhanik by caste. 12. The accused also examined Tilak Raj (DW1), Karambir (DW2), and Neorti Devi (DW3), in their defence. Thereafter, the accused, closed the defence evidence. 13. After hearing the Counsel for the parties, and, on going Criminal Appeal No. 693-SB of 1996 7 Criminal Appeal No. 297-SB of 1997 through the evidence, on record, the trial Court, convicted and sentenced Satish @ Ghanti, accused, and convicted, and released on probation Devinder @ Ponga and Rajesh, accused, as stated above, by holding that they did not share the common intention of their co- accused, and , thus, were liable for their individual roles. 14. Feeling aggrieved, the instant appeals, were filed by the appellants. 14-A. Satish @ Ghanti, accused/appellant, died during the pendency of appeal. 15. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 16. The Counsel for Devinder @ Ponga, and Rajesh, appellants, submitted that both these appellants, were not present at the time of the alleged occurrence. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Devinder @ Ponga, caused the simple injuries, with a brick bat on the person of Chandan Lal and Rajesh, accused, gave slaps to Dharamvir. Dharambir, PW5, in clear-cut terms stated that Rajesh, accused, gave him slaps, whereas, Chandan Lal, PW7, stated that Devinder @ Ponga, gave him brick bat blows. The statement made by Chandan Lal, PW7, was duly corroborated by the medical evidence of Dr. O.P. Gujaria , PW12, who found one lacerated wound on the right fore-arm and an abrasion on his left fore-arm. During the course of cross-examination of Dharamvir, PW5, and Chandan Lal, PW7, nothing could be brought Criminal Appeal No. 693-SB of 1996 8 Criminal Appeal No. 297-SB of 1997 to the fore, which may go to discredit their evidence. The trial Court, was, thus, right in coming to the conclusion, that both Rajesh and Devinder @ Ponga, accused, did not share the common intention of their co-accused. The trial Court, was also right in recording conviction of Rajesh and Devinder @ Ponga, accused, for the offence, punishable under Section 323 of the Indian Penal Code, and releasing them on probation of good conduct. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 17. The Counsel for the appellants, however, submitted that by this time, the period of probation of the appellants, must have expired. 18. No other point, was urged, by the Counsel for the parties. 19. For the reasons recorded above, Criminal Appeal No. 693- SB of 1996, filed by Devinder @ Ponga, and Criminal Appeal No. 297- SB of 1997, filed by Rajesh, appellants, being devoid of merit, are dismissed. 20. Criminal Appeal No. 693-SB of 1996, filed by Satish @ Ghanti, as stated above, stood abated, on account of his death, during the pendency of the same (appeal). 19.05.2009 (SHAM SUNDER) Amodh JUDGE