Criminal Appeal No. 497-DB of 2004 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision : August 17, 2006 Criminal Appeal No. 497-DB of 2004 Avtar Singh Vs. State of Haryana Criminal Appeal No. 533-DB of 2004 Sat Narain Vs. State of Haryana Criminal Appeal No. 714-DB of 2004 Bablu Vs. State of Haryana Criminal Revision No. 1226 of 2004 Ravinder Kumar Godara Vs. State of Haryana and another Criminal Revision No. 1436 of 2005 State of Haryana Vs. Bablu Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal Present: Mr. RS Ghai, Senior Advocate, with Mr. Bipan Ghai, Advocate, for the appellants. Mr. Sunil Katyal, Deputy Advocate General, Haryana Mr. Vikram Chaudhary, Advocate, for the complainant. Criminal Appeal No. 497-DB of 2004 -2- Virender Singh, J. Vide this common judgment we are disposing off aforesaid three appeals and two criminal revisions, as the same have arisen from one and the same judgment of learned Additional Sessions Judge, Sirsa dated 5.5.2004. All three appellants stand convicted and sentenced as under:- Sat Narain Under section 302 IPC substantively Sentenced to undergo imprisonment for life and to pay a fine of Rs 10,000/-, in default of payment of fine to further undergo imprisonment for two years. Under section 307 IPC substantively Sentenced to undergo imprisonment for life and to pay a fine of Rs 5,000/-, in default of payment of fine to further undergo imprisonment for one year. Under section 324/34 IPC. Sentenced to undergo imprisonment for one year and to pay a fine of Rs 200/-, in default of payment of fine to further undergo imprisonment for two months. Under section 323/34 IPC. Sentenced to undergo imprisonment for three months. Criminal Appeal No. 497-DB of 2004 -3- Avtar Singh Under section 302/34 IPC. Sentenced to undergo imprisonment for life and to pay a fine of Rs 10,000/-, in default of payment of fine to further undergo imprisonment for two years. Under section 307/34 IPC. Sentenced to undergo imprisonment for life and to pay a fine of Rs 5,000/-, in default of payment of fine to further undergo imprisonment for one year. Under section 324 IPC substantively. Sentenced to undergo imprisonment for one year and to pay a fine of Rs 200/-, in default of payment of fine to further undergo imprisonment for two months. Under section 323 IPC substantively. Sentenced to undergo imprisonment for three months. It is worth mentioning here that after Bablu appellant was convicted by the learned trial Court, his case was sent to the Juvenile Justice Board, Hissar for passing an appropriate order on the quantum of sentence under the new Juvenile Justice Act. The learned Principal Magistrate Juvenile Justice Board, Hissar vide impugned order dated 3.6.2004, while imposing substantive sentence upon him has observed that he has attained the age of 22 years, hence there was no ground for sending him to special home and awarded the substantive sentence to him as mentioned below:- Criminal Appeal No. 497-DB of 2004 -4- Bablu Under section 302 IPC. Sentenced to undergo imprisonment for ten years. Under section 307 IPC. Sentenced to undergo imprisonment three years. Under section 324 IPC. Sentenced to undergo imprisonment six months. Under section 323 IPC. Sentenced to undergo imprisonment for six months. All the sentences awarded on different counts by the learned trial court were ordered to run concurrently. The complainant-Ravinder Godara has filed a revision bearing Criminal Revision No. 1226 of 2004 against aforesaid Bablu showing his grouse that the learned trial court has mis-interpreted and mis-construed the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act') as it was incumbent upon the trial court to reach a definite conclusion that respondent no. 2 was less than 18 years of age before any order under section 20 of the Act could be passed and therefore, with regard to quantum of sentence, his case is at par with his two co- accused, namely, Sat Narain and Avtar Singh. The said revision after its admission was ordered to be heard with Criminal Appeal No. 497-DB of 2004 (Avtar Singh vs. State of Haryana). State of Haryana has also preferred Criminal Revision No. 1436 of 2005 only against Bablu appellant and the same is also ordered to Criminal Appeal No. 497-DB of 2004 -5- be heard along with aforesaid Criminal Appeal. Chhotu Ram alias Lal Bahadur resident of village Chamar Khera Police Station Sadul Shahar, District Ganga Nagar (Rajasthan) is the deceased in this case. He is real brother of Ravinder Kumar PW14, the first informant and husband of Sakeela PW15. The occurrence has taken place in village Chautala which falls within the jurisdiction of Police Station Sadar Dabwali. The place of occurrence is near the Dhani (hamlet) of Sat Narain appellant and Darshan Lal PW12. Sat Narain and Darshan Lal are two real brothers. Chhotu Ram (since deceased) was brother-in-law of Darshan Lal as his real sister Sunita Devi is married to him. The distance between village Chautala and Chamar Khera is about 65 kilometers as is clear from the evidence on record. The occurrence is of 17.6.1999 at about 3.30 AM. Statement Ex. PU of Ravinder Godara was recorded at 9.15 AM in Civil Hospital, Sangaria by ASI Umed Singh PW18 Incharge of Police Post Chautala. On the endorsement Ex. PU/1 by aforesaid ASI Umed Singh, formal FIR Ex. PU/2 was recorded in Police Station Sadar Dabwali at 10.20 AM under sections 302,307,323 read with Section 34 IPC and under sections 25/27/54/59 of the Arms Act. Special report reached Judicial Magistrate Ist Class, Dabwali on 17.6.1999 itself at 2.00 PM through Constable Ramesh Chander PW10 who has tendered his affidavit Ex. PQ. Ravinder Kumar PW14 alleges that he is resident of Criminal Appeal No. 497-DB of 2004 -6- village Chamar Khera, Police Station Sadul Shahar, District Ganga Nagar (Rajasthan). His sister Sunita Devi is married with Shri Darshan Lal son of Devi Lal, Bishnoi, resident of Dhani Chautala, District Sirsa (Haryana). Yesterday on 16.6.1999 at about 8.00 P.M. he had gone to see his sister Sunita at Dhani Chautala, District Sirsa where some quarrel took place between his brother-in-law Darshan Lal and his (Darshan Lal) nephew Bablu son of Sat Narain. Thereupon Darshan Lal went to call Chhotu Ram alias Lal Bahadur, brother of the complainant from village Chamar Khera in a jeep. At about 1.30 A.M.( night time) Darshan Lal returned with Chhotu Ram and his wife Sakeela ( since declared as a proclaimed offender). At about 3.30 AM on 17.6.1999 Sat Narain armed with a gun, his son Bablu armed with a gandasi, his wife Savitri armed with a Kasoli and Avtar Singh son of Harphool Singh, Kumhar, resident of Sangaria armed with a lathi came in a Maruti car at the Dhani of Darshan Lal and stopped the car on the way. They started hurling abuses at Darshan Lal, his wife and complainant Ravinder Godara. They tried to stop Sat Narain etc. but to no effect. Chhotu Ram (since deceased) asked Sat Narain etc. to return home and they will talk in the morning. Thereafter, the complainant with his brother Chhotu Ram and sister-in-law Sakeela boarded a jeep and left for Sangaria to bring Banwari Lal from Sangaria. Chhotu Ram was on the steering wheel of the jeep whereas Ravinder was sitting by his side and Sakeela was sitting on the back seat behind her husband. When their jeep reached near Criminal Appeal No. 497-DB of 2004 -7- the car of accused Sat Narain etc. all the accused raised a Lalkara in chorus to teach a lesson to the complainant party for siding with Darshan Lal. Thereafter, accused Sat Narain fired a shot at Chhotu Ram with his licenced gun and the pellets hit near his right shoulder and fired another shot at the complainant but the latter saved himself by taking shelter behind the jeep after jumping from it towards the left side. Bablu gave a gandasi blow on the right heel of Ravinder. Sat Narain then fired another shot towards Sakeela and the pellets hit her right hand. It is then alleged that Savitri caused injuries with Kasoli and Avtar Singh caused injuries with Lathi on the left foot and knee of Ravinder. The pellets also hit the front portion of the jeep of the complainant party. On their raising of alarm, Darshan Lal and Vikram Singh son of Ripu Daman and Sunita were attracted and they came running to the spot from the Dhani ( hamlet). They raised a lalkara saying that they (complainant party) need not feel frightened as they were coming. On seeing them coming the aforesaid assailants fled away from the spot in their car carrying their respective weapons. The injured were shifted to Civil Hospital, Sangaria. Chhotu Ram succumbed to his injuries. The motive projected is that a dispute was going on between Darshan Lal and his brother Sat Narain over the turn of water and passage etc. and Chhotu Ram was siding with Darshan Lal. ASI Umed Singh took up the investigation of the case and got Ravinder Godara, Chhotu Ram and Sakeela medico legally examined from Criminal Appeal No. 497-DB of 2004 -8- Dr. RC Ola, PW7 of Civil Hospital, Sangaria. Inquest proceedings were initiated by him. Post mortem examination on the dead body of Chhotu Ram was performed by the aforesaid Dr. Ola at 2.00 PM on 17.6.1999 itself. Darshan Lal PW12 produced the jeep bearing registration No. HR-25-5071 of the deceased which was taken into possession. He also lifted some blood stained broken pieces of bangles from the place of occurrence. Rough site plan was also prepared. Four empty cartridges, one missed cartridge and blood stained earth were also taken into possession from the spot. The number plate of the car, broken bumper of the jeep and four pairs of hawai chappals were also lifted from the spot and taken into possession. After the post mortem report, two parcels containing clothes of the deceased Chhotu Ram and the vial containing pellets were taken into custody from the doctor. The investigation was thereafter handed over to SI Surat Singh PW17. On 20.6.1999 he collected one parcel containing pellets from the person of Sakeela and took the same into police custody. On 26.6.1999, Sat Narain and Bablu were arrested from Bus Stand Sakta Khera. Sat Narain produced his licenced gun along with licence which was taken into possession. During the investigation appellant Avtar Singh was found innocent and as such he was kept in column no. 2. He was summoned subsequently on an application moved by the State under section 319 of the Criminal Appeal No. 497-DB of 2004 -9- Code of Criminal Procedure. Savitri wife of Sat Narain has, however, been declared as a proclaimed offender as she could not be arrested. After the completion of investigation, challan was filed against the accused. They were consequently charged for various offences as indicated above. In order to substantiate its case, the prosecution has examined as many as 18 witnesses. The evidence of some of the witnesses is of formal nature. The main witnesses are, however, are as under:- Dr. RC Ola PW7 had medico legally examined Chhotu Ram alias Lal Bahadur since deceased on 17.6.1999 at 4.45 AM in C.H.C. Sangaria and found seven injuries on his person which are depicted as below:- “1. A lacerated wound 6 cm x 2 cm into muscle deep about 4 cm deep, irregular in shape with irregular skin margins, inverted, multiple holes present .3 cm to .5 cm x .2cm to .5 cm sized in margins and near margins around the wound on posterior aspect of right arm just below the shoulder, underlying muscles also found lacerated severally, no blackening and tattooing of the skin, inner end of the wounds communicate with wound of the axilla. 2. Lacerated wound 15 cm x .5 cm x muscles and bone deep, underlying muscles found lacerated severally, bones (ribs) felt Criminal Appeal No. 497-DB of 2004 -10- fractured in axilla on posterior margins. Skin of the wound found inverted and margins were irregular, directions of the wound was anterior and inwards towards the chest wall. Few holes were present near margins of the wounds. Marked swelling (Haematoma) on the lateral side of chest wall with surgical emphysema on right side just below the wound of entry in axilla and also on lateral part of abdomen just below the chest. 3. Two abrasion 3.5 x.5 cm on posterior part of fore-arm on upper part and just below the elbow. 4. Lacerated punctured wound .3cm x .2 cm on posterior part of the elbow skin deep. 5. Five punctured wounds oval to rounded shape .3 x .3 cm to .3 x .2 cm on posterior aspect of middle of right fore-arm with multiple foreign body felt on posterior part of right fore- arm. 6. Punctured wound .2 x .2 cm on dorsum of right ring finger on middle phalanx bony crapts felt. 7. Abrasion with punctured wound 1.5 cm x 1.5 cm on dorsum of middle phalanx of the right index finger. “ This witness had removed two pellets from injury no. 2 and Criminal Appeal No. 497-DB of 2004 -11- preserved them for FSL examination. Few holes near the margins of the wounds were also noticed by him. X-ray was advised for all the injuries except injury no. 3 which was in the shape of two abrasions on the posterior part of fore-arm. According to his opinion, the weapon used for all the injuries except injury no. 3 was fire arm. This witness further states that the pulse was not countable as it was running very fast and feeble B.P. 40 mm of hg. was noticed. Respiration had also increased. The wound was dressed with packing and tight bandage was done by Dr. J.K.Sharma, General Surgeon. The patient was referred to C.M.C. Ludhiana after some improvement in the condition but during transportation he died at 6.30 AM. Ruqa Ex.PK was sent by this witness to SHO Sangaria about the death. Presence of multiple metallic shadows (7 pellets) in pericardial area and media stinum was seen. Multiple pellets were also noticed in the right arm and right chest wall. Certain metallic shadows were also noticed in the right elbow and fore-arm area, right index finger and right ring finger with fracture of middle phalanx. Dr. Ola has also proved the X-ray plates. Ravinder Kumar PW14 was also medico legally examined by him and found the following injuries on his person:- “1. Cut wound 21 x 2.5 cm x bone deep on medial side of right foot parallel to sole from the distal end of metatarsal bone to posterior part of heel. Criminal Appeal No. 497-DB of 2004 -12- 2. Three abrasions 1.5 cm x 1 cm x .2 cm on medial side of left knee. 3. Abrasion 2 cm x .5 cm on medial side of left leg on upper 1/3rd part. He had advised X-ray for injury no. 1 whereas other two injuries were declared simple caused by blunt weapon. Injury no. 1 was opined to be from a sharp edged weapon. Duration of injury was described as within six hours. He also proved the MLR Ex. PG of the injured. Shakeela PW15 wife of the deceased was also examined by him on the same day and on her person the following injuries were noticed:- “1. Punctured wound .3 cm x .3 cm x muscle deep on dorso medial aspect of right fore-arm on upper part. Margins were inverted and reddish. Bleeding was found on touching. 2. Punctured wounds seven in number rounded to oval shaped .3 cm x .3 cm x skin to muscle deep. Margins were inverted. Bleeds on touch on lower half of right fore-arm on dorsal aspect, swelling of lower half of right fore-arm present with painful movements. 3. One oval punctured wound on right sided glutial region on upper part .3 x .2 cm. Bleeds on touch. Skin margins were inverted and muscle deep.” Criminal Appeal No. 497-DB of 2004 -13- He also proved the MLR of this witness and on X-ray examination found multiple metallic shadows (pellets) on right fore-arm and right wrist region with fracture of lower end of right ulna, some metallic shadow were found just below the elbow, right side of pelvis. X-ray films with regard to this witness were also proved by this doctor. After the death of Chhotu Ram alias Lal Bahadur, Dr. Ola also conducted the post mortem on his dead body and while describing the injuries as contained in MLR, he noticed that there was free blood in thorosic cavity, Larynx and tracheae pallorness, right lung was lacerated at multiple side below the fractured ribs and with pellets. 17 pellets and two wads received from the wounds were preserved by this witness. According to the post mortem examination, the cause of death was due to severe hemorrhage and shock as a result of extensive injury to right lung and large vessels of right arm in upper part with fire arm (gun shot injury). All the injuries were declared as ante mortem in nature. Original PMR Ex. PM was proved by him. The main eye version account is unfolded by Ravinder Kumar PW14, brother of deceased, Sakeela PW15 wife of the deceased who have reiterated the prosecution case as narrated in the preceding paras. We do not feel the necessity of reproducing their evidence once again to burden our judgement. Darshan Lal PW12 and Vikram PW13 are the witnesses of the Criminal Appeal No. 497-DB of 2004 -14- motive and the altercation ensued a few minutes prior to the occurrence. However, as per their substantive statement both of them rushed to the site after hearing the alarm. They brought the injured to Government hospital Sangaria in a jeep which was being driven by Chhotu Ram (since deceased) at the time of occurrence. PW Darshan Lal also gives the flash back of his land dispute with Sat Narain appellant, his real brother. As referred to above, the investigation was conducted by SI Surat Singh PW7 and ASI Umed Singh PW18 and since the same has been depicted in the preceding paras, we do not intend to reproduce the same once again. However, we shall be discussing the same at the relevant stage in subsequent paras of our judgement. The prosecution also tendered into evidence the reports of the FSL Ex. PY and PZ. The plea taken up by appellant Sat Narain as emerging from his statement recorded under section 313 of the Code of Criminal Procedure is that he was summoned at the hamlet (Dhani) of Dashan Lal on 17-6-1999 , some time before the occurrence and was threatened of dire consequences by Chhotu Ram and others. Some outsiders were also brought by Chhotu Ram. It is then pleaded that when he was returning in the car with his licenced gun, the complainant party waylaid him and threatened to finish him. In order to save himself, he started running but was chased and stopped by the complainant side by striking their jeep Criminal Appeal No. 497-DB of 2004 -15- against his car. The complainant party was armed with deadly weapons and he (Sat Narain) in exercise of his self defence fired a shot which incidentally hit Chhotu Ram. Sakeela also suffered pellet injuries from that shot only. Ravinder the other injured in fact had received injuries at the hands of Siri (farm helper) of Sat Narain when the complainant party went to his Hamlet (Dhani) armed with weapons. The other appellants have pleaded their absence at the scene of occurrence while toeing the defence set up by their co-accused Sat Narain. No defence evidence was led by either of the appellants. After appreciating the entire evidence, the present three appellants stand convicted and sentenced as indicated above. Aggrieved by the same, they have preferred the instant appeals. We have heard Mr. RS Ghai,Senior Advocate assisted by Mr. Bipan Ghai Advocate, Mr. Sunil Katyal, Deputy Advocate General, Haryana and Mr. Vikram Chaudhary, learned counsel for the complainant. With their assistance we have gone through the entire record. Mr. Ghai has made a two fold submission. First limb of his argument is that Bablu, Avtar, Savitri were not present at the scene of occurrence and they have been falsely implicated in this case. The second limb of his argument is that Sat Narain, who admits his presence at the time of occurrence, had in fact acted in exercise of his right of private defence by firing a single shot at Chhotu Ram alias Lal Bahadur ( deceased) and Criminal Appeal No. 497-DB of 2004 -16- even if it is taken to be a case of more than one shot fired by him, still it would amount to exceeding the right of self defence and in that eventuality, the main offence under Section 302 IPC deserves to be diluted. Developing the first limb of argument, Mr. Ghai further contends that if one appreciates the entire evidence in its totality, forming of unlawful assembly is not proved. He submits that it is the case of the complainant that Chhotu Ram (since deceased) and Sakeela had reached the Dhani of Darshan Lal at about 1-00 O' Clock on the night intervening 16/17-6-1999. Thereafter Bablu, Avtar, Savitri and Sat Narain reached the Dhani of Darshan Lal at about 3-30 AM on 17-6-1999 and at that time they were allegedly armed with weapons. They were shown to be armed at the time of main occurrence also. The motive with the appellant side was to show their resentment against Chhotu Ram and his family members, who in fact had come to the rescue of Darshan Lal. All the accused had also allegedly abused Chhotu Ram and others after blocking the passage by parking their Maruti car. However, admittedly at that time they had not caused any injury to any one. From this Mr. Ghai wants to develop that had Sat Narain and three others been there at the Dhani of Darshan Lal as now alleged they would have certainly caused injuries to Chhotu Ram and others at that very stage and would not have waited for the second chance by allowing them to leave the Dhani (hamlet) for going to village Sangaria. This all shows that the story set up by the complainant regarding first Criminal Appeal No. 497-DB of 2004 -17- altercation at the Dhani (hamlet) of Darshan Lal is coined up with an oblique motive viz. to falsely implicate Bablu, Avtar and Savitri by attributing them specific injury with a particular weapon. Mr. Ghai then submits that it is not possible to give a photographic version of the occurrence of 3.30 AM, which is a dead hour of the night and an improvement is made by the complainant side in the court saying that when the aforesaid four persons had reached the Dhani of Darshan Lal, the lights of the Maruti car were on. This is done to show attribution of specific weapons in the hands of each of the accused. Mr. Ghai in the same stretch submits that a considerable delay in lodging the First Information Report also creates a doubt about the truthfulness of the eye-version account and there was ample time with the complainant side for consultation and deliberations in order to cook up a story of their own choice and in the case in hand they had utilized that time for implicating Bablu, Avtar and Savitri. The occurrence had taken place on 17-6-1999 at 3-30 AM. ASI Hari Ram of police station Sangaria had reached the hospital early in the morning at about 5-30AM, but the injured witnesses had refused to make their statements to him. Thereafter ASI Umed Singh (PW- 18), who is the Investigating Officer of this case, recorded the statement of Ravinder Godara brother of the deceased at 9-15 AM. The special report reached the Illaqa Magistrate at 2-00 PM. According to the learned