IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 623-DB of 2008 DATE OF DECISION : 31.03.2011 Udaibir and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT Crl. A. No. 610-DB of 2008 DATE OF DECISION : 31.03.2011 Jaibir and others .... APPELLANTS Versus State of Haryana ..... RESPONDENT Crl. A. No. 621-DB of 2008 DATE OF DECISION : 31.03.2011 Amit and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT Crl. Revn. No. 79 of 2009 DATE OF DECISION : 31.03.2011 Ramesh .... PETITIONER Versus The State of Haryana and others ..... RESPONDENTS Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -2- CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. N.K. Sanghi, Mr. Aditya Sanghi and Mr. Arun Ahuja, Advocates, for the appellants (in Crl. A. No. 623-DB of 2008) and for respondents No.13 and 15 (in Crl. Revn. No. 79 of 2009) Mr. R.N. Kush, Advocate, for the appellants (in Crl. A. No. 610-DB of 2008) and for respondents No. 9, 10 and 12 (in Crl. Revn. No. 79 of 2009) Mr. Dhiraj Chawla, Advocate, for the appellants (in Crl. A. No. 621-DB of 2008) and for respondents No.11 and 14 (in Crl. Revn. No. 79 of 2009) Mr. S.S. Randhawa, Addl. A.G., Haryana. Mr. Hemant Bassi, Advocate, for the petitioner (in Crl. Revn. No. 79 of 2009) for the complainant (in Crl. Appeals No. 623-DB, 610-DB and 621-DB of 2008) * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeals No. 623-DB, 610-DB and 621-DB of 2008, filed by accused Udaibir and Ramphal; Jaibir, Phul Kumar and Vinod; and Amit and Sunil, against their conviction and sentence; and Criminal Revision No. 79 of 2009, filed by Ramesh (complainant) against the acquittal of respondents No. 2 to 8 and for enhancement of the sentence awarded to respondents No. 9 to 15, who have Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -3- filed the aforesaid three appeals, as well as for awarding compensation to the legal representatives of deceased Rambir. 2. In the present case, fourteen accused were tried by the court of Additional Sessions Judge, Hisar, for committing the murder of Rambir and causing injuries to Baljeet (PW.10), Kalawati (PW.14) and Ajeet. Out of them, vide judgment dated 8.8.2008, passed by the trial court, seven accused, namely Udaibir, Ramphal, Jaibir, Phul Kumar, Vinod, Amit and Sunil (appellants herein), have been convicted under Sections 148, 302 and 323 read with Section 149 IPC, and the remaining seven accused, namely Hardeep, Umed, Sandeep, Smt. Phooli, Smt. Mukesh, Smt. Annelta and Daya Nand, have been acquitted of the charges framed against them. Vide order dated 12.8.2008, passed by the trial court, the appellants have been sentenced to undergo rigorous imprisonment for one year and to pay a fine of ` 1,000/- each, in default to further undergo rigorous imprisonment for a period of one month each under Section 148 IPC; rigorous imprisonment for life and to pay a fine of ` 10,000/- each, in default to further undergo rigorous imprisonment for a period of nine months each under Section 302 read with Section 149 IPC; rigorous imprisonment for six months eachunder Section 323 read with Section 149 IPC. Case of the prosecution 3. In brief, the case of the prosecution, which is based upon the statement of Ramesh Chand (PW.13), is that on 7.3.2004 at about 3.00 PM, he (complainant Ramesh Chand), his brother Rambir (deceased), who was Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -4- serving in Army and had come on leave to the village for the last 10-12 days, another brother Baljeet (injured), along with their uncle's sons Jeet Singh and Karam Chand were celebrating festival of Holi with their women folk in the street in front of their house. Accused Ramphal, their neighbour, whose house is situated in front of their house, was having some grudge with the complainant, as earlier an altercation had taken place with him. When the complainant and his family members were celebrating the festival of Holi, accused Ramphal came and remarked that they were celebrating Holi with happiness and then he went away. After some time, accused Ramphal along with other accused, named above, including one Rajinder son of Udaibir (who was a juvenile and was tried before the Juvenile Justice Board), duly armed with a gun, Pharsa, jelwas, and lathis, came there and raised lalkara that the complainant and his family be taught a lesson for celebrating the festival of Holi with great happiness. By saying so, all the accused started giving beatings to them. Accused Ramphal inflicted pharsa blow on the head of Rambir. Accused Phul Kumar inflicted jelwa blow on the head of Baljeet. Then accused Udaibir, who was having a gun in his hand, put his gun on the ground, lifted jelwa and inflicted one blow on the head of Rambir. Thereafter, accused Vinod inflicted jelwa blow on the left foot of Baljeet. It is further the case of the prosecution that all the aforesaid accused persons caused injuries to Kalawati wife of the complainant, and Ajeet. They also tried to hit the women folk of the complainant party, but they were saved with great difficulty. After causing the aforesaid injuries, Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -5- the assailants went to their house along with their respective weapons. It was further stated by the complainant that after arranging a conveyance, they took Rambir, Baljeet, Kalawati and Ajeet to General Hospital, Meham for treatment. In the last of his statement, complainant stated that while saving themselves, accused Udaibir etc. had also received injuries. Motive 4. As per the prosecution case, the motive for causing injuries to the aforesaid four persons was the earlier altercation between the complainant and Rambir (since deceased), who were neigbours. Medical evidence 5. On 7.3.2004, at 4.10 PM, Dr. J.K. Bhalla (PW.12), Medical Officer, CHC Meham, medico legally examined Rambir and found the following two injuries on his head : 1. Lacerated wound on left side fronto parital area of the skull about 4.5 cm x 1.5 cm, bone deep. Bleeding was present. X-ray skull and CT scan was advised. 2. Lacerated wound left side on superior margin about 8 mm x 2.3 mm. X-ray skull and CT scan was advised. On the same day, at 4.15 PM, he medico legally examined Baljeet and found the following two injuries on his person : 1. Lacerated wound on right side parital area of the skull at the level of external ear about 3 cm x 5 mm, bone deep. X-ray skull and CT scan was advised. 2. Contusion with laceration of red colour and of irregular size and shape on left leg. It was kept under observation. Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -6- After examination, he referred Rambir and Baljeet to PGIMS, Rohtak. On the same day, at 5.00 PM, he medico legally examined Kalawati and found the following two injuries on her person : 1. Lacerated wound on left side forehead and frontal area of the skull about 2.5 cm x 5 mm x 1 cm. X-ray skull was advised. 2. Lacerated wound on left side lip dorsal aspect about 1.5 cm x 5 mm x 5 mm. Fresh bleeding was present. It was declared simple in nature. On the same day, at 5.10 PM, he also medico legally examined Ajeet and found the following two injuries on his person: 1. Lacerated wound on right side parital area on the skull about 4 cm x 1.5 cm, bone deep. Fresh blood was present. X-ray skull was advised. 2. Lacerated wound on and near root of the nose. It was 8 mm x 2- 4 mm of irregular shape. X-ray nose was advised. According to him, injuries on the persons of all the four injured were found to be caused with blunt weapons within a probable duration of six hours. 6. Further, as per the prosecution case, on the same day, at 5.20 PM, Doctor J.K. Bhalla (PW.12) sent information (Ex.PBB) to the police about the admission of four injured persons, giving the history of assault. On receiving a VT message from Police Station Narnaud, ASI Ishwar Singh (PW.16), Incharge Police Post Bas, went to CHC Meham, where he came to know that injured Rambir and Baljeet had already been referred to PGIMS, Rohtak, whereas Kalawati and Ajeet had been discharged from the Hospital. Thereupon, he went to PGIMS, Rohtak and moved application (Ex.PV) Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -7- seeking opinion of the Medical Officer regarding the fitness of injured Rambir and Baljeet to make statement. At 9.00 PM, vide his opinion (Ex.PV/1) Dr. Suresh Kumar declared both the injured unfit to make statement. Thereupon, ASI Ishwar Singh recorded statement (Ex.PC) of Ramesh, brother of Rambir, who was present in PGIMS, Rohtak at 11.30 PM, and after making his endorsement (Ex.PC/1) on the statement, he sent the same to the Police Station, on the basis of which the formal FIR (Ex.PD) under Sections 148, 323, 307 read with Section 149 IPC was registered on 8.3.2004 at 2.00 PM at Police Station Narnaund and the special report was received by the Ilaqa Magistrate on 9.3.2004 at 10.00 AM in the morning. 7. On 9.3.2004, SI Jagdish Parshad prepared inquest (Ex.PJ) and sent the dead body for post mortem examination. On the same day, at 2.30 PM, Dr. Rajiv Sharma (PW.18) conducted post mortem of deceased Rambir. He found the following injuries on the body of the deceased : 1. A surgical sutured lacerated wound 20 cm x 0.5 cm x bone deep, 22 silk sutured present over the right temporo prital area. 2. A bruise bluish 4.5 cm x 3.5 cm present over ventral aspect of right elbow joint. 3. A bruise bluish 3.5 cm x 2.5 cm was present over dorsum of the right hand. According to him, the cause of death was head injury, as a result of blunt force impact. All the injuries were anti-mortem in nature. Investigation 8. On 9.3.2004, ASI Ishwar Singh (PW.16) visited the place of Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -8- occurrence, prepared rough site plan (Ex.PKK), lifted the blood stained earth from the spot and took the same into possession vide recovery memo Ex.PA. The blood stained clothes, produced by injured Baljeet, Ajeet and Kalawati were taken into possession vide recovery memos Ex.PB, Ex.PC and Ex.PD, respectively. On the same day, SI Vinod Shankar (PW.17), while posted as SHO, Police Station Narnaud, received telephonic message from Hisar that Rambir, who was admitted in a Hospital at Delhi, had expired. On receiving this information, offence under Section 302 IPC was added. 9. On 12.3.2004, accused Udaibir, Phool Kumar, Ramphal, Jaibir, Sandeep and Sunil were arrested by SI Vinod Shankar. During interrogation, accused Sandeep and Sunil produced lathis, used by them in the occurrence, which were taken into possession vide recovery memo Ex.PFF and Ex.PGG. Accused Ramphal, Phool Kumar, Udaibir and Jaibir, in pursuance of their disclosure statements (Ex.PBB, Ex.PCC, Ex.PDD and Ex.PEE) got recovered gandasa, jelly, jelwa and jelly, which were kept concealed by them. These weapons of offence were also taken into possession vide recovery memos Ex.PBB/2, Ex.PCC/2, Ex.PDD/2 and Ex.PEE/2, respectively. 10. On 7.4.2004, SI Dharam Singh arrested accused Umed Singh, Hardeep, Amit and Dayanand. During interrogation, in pursuance of their disclosure statements (Ex.PFF, Ex.PGG, Ex.PHH and Ex.PJJ) got recovered lathi, lathi, jelly, lathi, which were kept concealed by them. These weapons Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -9- of offence were also taken into possession vide separate recovery memos Ex.PFF/1, Ex.PGG/1, Ex.PHH/1 and Ex.PJJ/2, respectively. Statements of the witnesses were recorded. 11. After completion of investigation, the police filed challan against 11 accused, whereas accused Smt. Phuli, Smt. Mukesh and Smt. Aneelta were found innocent. Charges under Sections 148, 302 read with Section 149 and Section 323 read with Section 149 IPC were framed against all the 11 accused, to which they did not plead guilty and claimed trial. However, after the partly examination of injured Baljeet, on an application filed by the prosecution under Section 319 Cr.P.C., the aforesaid three accused, namely Smt. Phuli, Smt. Mukesh and Smt. Aneelta, were summoned to face trial. Thereafter, all the 14 accused were charge sheeted for the aforesaid offences, to which they did not plead guilty and claimed trial. Prosecution evidence 12. In support of its case, the prosecution examined nineteen witnesses, including PW.10 Baljeet (injured), PW.12 Dr. J.K. Bhalla, who medico legally examined Rambir, Baljeet, Kalawati and Ajeet, PW.13 Ramesh (complainant), PW.14 Kalawati (injured), PW.15 Dharam Singh Inspector, who arrested four accused persons and recovered the weapons of offence from them, PW.16 Ishwar Singh ASI (the Investigating Officer), PW.17 Vinod Kumar SI, who received information regarding the death of injured Rambir, arrested six accused persons and recovered the weapons of Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -10- offence from them, and PW.18 Dr. Rajiv Sharma, who conducted post mortem on the body of deceased Rambir. They proved all the relevant documents and the weapons of offence. Statements of accused under Section 313 Cr.P.C. 13. In their statements under Section 313 Cr.P.C., all the fourteen accused denied the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. Accused Jaibir, Udaibir, Ramphal and Sandeep took the identical plea that on the day of occurrence at about 2.30/3.00 PM, the whole village was playing the festival of Holi. At that time, Rambir (since deceased), Baljeet, Ajeet and Kalawati (all injured) armed with jelwa and gandasi attacked at the house of accused Ramphal and caused injuries to accused Ramphal, Udabir, Jaibir and Sandeep. Sandeep wielded lathi in his self defence and defence of others and in that process, Rambir also received injuries. Except Baljeet, Rambir, Ajeet and Kalawati, other members from the complainant side were not present. Lateron, in connivance with the police, all the accused have been falsely implicated by the complainant party. Defence evidence 14. In defence, the accused examined DW.1 Dr. Rajesh Sheokand, who stated that on the day of occurrence, he was posted as Medical Officer, CHC Narnaund. On that day, from 5.00 PM to 6.00 PM, he medico legally examined accused Udaibir, Sandeep, Ramphal and Jaibir. He found following three injuries on the person of accused Udaibir : Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -11- 1. Incised wound of 3.8 x 0.8 cm on left lateral side of forehead of shape oblique. Muscle deep bone visible, bleeding on examination. Advised X-ray skull AP lateral and CT scan head and refer to PGIMS Rohtak. 2. Abrasion of 2.1 x 0.1 cm on middle of forehead on upper half oblique clotted blood present, bleeding on examination. 3. Abrasion of 0.3 x 0.2 cm on left elbow medial aspect oblique clotted blood present, bleeding on examination. Tender movement not restricted. Injury No.1 was stated to be caused by sharp edged weapon, whereas injuries No.2 and 3 were caused by blunt weapon. He found the following two injuries on the person of accused Sandeep : 1. Laceration of 1.1 x 0.4 cm on right temporal region skull oblique air metted with clotted blood, muscle deep bone visible, bleeding on examination. Patient was kept under observation. 2. Laceration of 0.4 x .2 cm on right big toe near nail oblique clotted blood present, bleeding on examination, movement not restricted. Both the injuries were found to be caused by blunt edged weapon. On the person of accused Ramphal, he found the following injuries : 1. Laceration of 1.6 x 1.2 cm on left side of forehead, upper half oblique clotted blood present. Muscle deep bone visible, bleeding on examination. Patient was kept under observation. 2. Bruise of 4.6 x 4.1 cm on left forearm, dorsomedial aspect on ulnar side oblique blueish red in colour, tender, movements restricted. Advised X-ray left forearm AP and lateral. 3. Incised wound of 2.9 x 0.4 cm on left little finger on middle phalanx on dorsomedial aspect ulnar side oblique muscle deep, Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -12- tender, movements restricted. Advised X-ray left hand. AP lateral. Injuries No.1 and 2 were stated to be caused by blunt weapon and injury No.3 by sharp edged weapon. He found the following injury on the person of accused Jaibir : 1. Abrasion of 0.6 x 0.2 cm on middle of forehead on upper half oblique clotted blood present. Bleeding on examination. The injury was stated to be caused by blunt edged weapon. According to him, duration of the injuries on the persons of all the aforesaid injured was within six hours. He proved on record the MLRs and pictorial diagrams, showing the seats of injuries, of all the aforesaid injured persons, as Ex.DC to Ex.DF and Ex.DC/1 to Ex.DF/1, respectively. Out of the aforesaid injuries, one injury on the person of Ramphal was declared as grievous in nature and all the remaining injuries were declared as simple in nature. The findings of the trial court 15. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the statements of two injured witnesses, namely PW.10 Baljeet and PW.14 Kalawati, as well as the testimony of complainant Ramesh, who witnessed the occurrence, coupled with the medical evidence and the recovery of weapons of offence from the accused persons, the trial court convicted and sentenced the appellants, as mentioned in the first para of the judgment. However, while observing that in the initial version, the complainant had named only eight persons as Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -13- assailants and seven of the accused, facing trial, were not named at all, the trial court held that the instant case appears to be a case of over implication of the accused and giving benefit of doubt, the remaining seven accused have been acquitted of the charges framed against them. Arguments of learned counsel for the appellants 16. Learned counsel for the appellants argued that in the present case, there is an unexplained delay in lodging the FIR, and by taking undue advantage of the delay, the complainant in consultation and deliberations has concocted a false and twisted version of the occurrence. According to the learned counsel, both the alleged injured witnesses as well as the complainant, who allegedly witnessed the occurrence, have suppressed the real version of the occurrence, in which they have falsely implicated all the members of the accused family. Learned counsel further argued that all the three eye witnesses suppressed the real genesis of the occurrence. In their statements recorded by the police during investigation, they did not explain the injuries, including grievous one, suffered by four accused, but when they appeared in the court, they made improvements in this regard and gave a vague version that the accused received injuries during separation and intervention. While referring to the statements of these witnesses made by them during investigation before the police and during trial before the court, learned counsel further argued that all these witnesses have stated that four accused received injuries during the occurrence, but they did not disclose as Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -14- to who caused injuries to them from the complainant side. In nutshell, the argument of learned counsel is that the alleged genesis of the occurrence is surrounded by mysterious circumstances. The accused suffered many injuries, including grievous one, in the occurrence, which have not been explained by the prosecution, therefore, the version given by the eye witnesses becomes doubtful. Learned counsel further argued that it has come in evidence that during the occurrence, many villagers came on the scene, who separated both the parties from fighting and in that process, some of the accused received injuries, but the prosecution did not examine any witness from the village. According to the learned counsel, the alleged motive for causing injuries to the complainant party, as given by the prosecution, is highly improbable. All the three eye witnesses have admitted in their statements before the court that except a small incident, which took place about 5-6 months earlier to the occurrence with regard to a dispute on a water tap between Kanso Devi (Mausi of PW.10 Baljeet) and accused Jaibir, there was no quarrel between the parties. Therefore, on the day of occurrence, there was no motive for the accused to constitute an unlawful assembly with a common object to cause injuries to the complainant side. According to the learned counsel, the occurrence had taken place all of a sudden without any pre determination, in which both the parties started fighting and caused injuries to each other, on some sudden unpleasant happening, while playing Holi in the street. But the complainant side, while Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -15- taking benefit of delay in lodging the FIR, has given a twisted version of the whole occurrence and falsely implicated 15 persons (including one Rajinder who was a juvenile and was tried separately before the Juvenile Justice Board) from the accused side. Learned counsel further argued that without properly appreciating the evidence led by the prosecution and the theory of free fight between two groups, the trial court has convicted 7 accused for the offence of murder with the aid of Section 149 IPC. 17. Learned counsel for the appellants further pointed out that even as per the prosecution witnesses, none of the accused was having an intention to cause death or such bodily injury to any of the injured, which may result into his death. According to the prosecution witnesses, one of the accused, namely Udaibir, was having a gun in his hand at the time of the occurrence, but instead of using the said gun, he allegedly caused injury with jelwa on the head of Rambir (deceased). According to the learned counsel, this fact clearly establishes that none of the accused, who were having gun, pharsa, jelwas and lathis in their hands, was having any intention to cause death of any person from the complainant side. Thus, the trial court has committed grave illegality while convicting the appellants under Section 302 read with Section 149 IPC, particularly when the prosecution has failed to establish the charge against the accused beyond reasonable doubt. Crl. Appeals No. 623-DB, 610-DB, 621-DB of 2008 and Criminal Revision No. 79 of 2009 -16- Arguments of learned State counsel as well as counsel for the complainant 18. On the other hand, learned Additional Advocate General, Haryana, assisted by learned counsel for the complainant, while supporting the impugned judgment and order, submits that the injuries on the persons of four accused have been fully explained by the eye witnesses, while appearing in the court as prosecution witnesses. Learned counsel further argued that all the three eye witnesses have categorically stated that due to the previous enmity, on the day of occurrence, after making remarks that the complainant and his family members were celebrating Holi with happiness, accused Ramphal had gone away and after some time, he along with the other accused, duly armed with deadly weapons, after constituting an unlawful assembly, came at the spot and caused injuries to four persons from the complainant side, which resulted into death of Rambir (brother of the complainant). Thus, according to the learned counsel, the