Crl. Appeal No.166-SB of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.166-SB of 1992 Date of Decision : 27.11.2008 1. Dariya Singh S/o Mai Ram, ...Appellants 2. Dharam Pal S/o Dariya Singh. 3. Satyawan S/o Dariya Singh. 4. Shakti S/o Dariya Singh 5. Hoshiar Singh S/o Dalip Singh All residents of village Naguran. Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Bhoop Singh, Advocate, for the appellants. Mr. R.S.Arya, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 6.4.1992, rendered by the Court of Addl. Sessions Judge, Jind, vide which it convicted Dariya Singh, Dharam Pal, Satyawan, Shakti and Hoshiar Singh, accused (now appellants), and sentenced them as under : Crl. Appeal No.166-SB of 1992 2 Name of the accused (now appellants) Offence for which convicted Sentence Awarded Dharam Pal, Satyawan, Shakti and Hoshiar Singh Under Section 326 read with 149 IPC RI for 4 years each, and to pay a fine of Rs.250/- each, in default of payment of fine, to undergo another RI for 3 months each. Dharam Pal, Satyawan, Shakti and Hoshiar Singh Under Section 323 read with 149 IPC RI for 1 year each. Dharam Pal, Satyawan, Shakti and Hoshiar Singh Under Section 148 read with 149 IPC RI for 1 year each. Dariya Under Section 326 read with 149 IPC RI for 3 years, and to pay a fine of Rs.250, in default of payment of fine, to undergo another RI for 3 months Dariya Under Section 323 read with 149 IPC RI for 1 year. Dariya Under Section 148 read with 149 IPC RI for 1 year. However, all the substantive sentences, were ordered to run concurrently. The trial Court, however, acquitted Dalip Singh, Randhir Singh, Shamsher, and Jaipal @ Kura, accused. All the accused were also acquitted of the offence, punishable under Section 307 IPC. 2. The facts, in brief, are that on 20.10.1990, Phul Kumar, SI/SHO, P.S. Alewa, alongwith other police officials, was on patrol duty, near School, in the area of village Hasanpur. Karan Singh, came from the side of Naguran, and told him, about the fight, that had taken place between the two parties. He also told him, that Narain Singh, Constable No.226, had received bullet injury, and Jagbir, Constable, had taken him to Civil Hospital, Jind. Consequently, Phul Kumar, SI, reached Civil Crl. Appeal No.166-SB of 1992 3 Hospital, Jind, and recorded the statement of Jagbir, Constable, on the basis whereof, FIR was registered. After obtaining the opinion of the Doctor, statement of Lal Chand, was also recorded. It was stated by Lal Chand, to the Police, that he was posted as a Teacher, in the Education Department. He further stated that he, and his brother Dariya, were having the fields, in the vicinity of each other, and there was a passage (rasta), on the intervening ridge of the fields, of both of them. A water course, on the common ridge was flowing, through which the fields were being irrigated. Dariya and his sons Dharam Pal, Shakti and Satyawan, wanted to keep the water course running, while Lal Chand was not interested, in having this water course running, on the ground, that there was reserved passage (rasta), for egress and ingress. Lal Chand was explaining to the accused, to dig water course, through the fields. Upon this exchange of words took place. 3. On 20.10.1992, the accused, other than Dharam Pal, armed with lathis, while Dharam Pal, who was armed with gun, came to the fields. Dev Singh and his sons Mahavir, Birbal and Subhash, were with him, at that time. When they started closing the water course, Dariya Singh, resisted. He gave a lathi blow, on the head of Lal Chand, which hit his left side. Then Dalipa and Randhir gave lathi blows to Lal Chand. Hoshiar Singh, also gave lathi blow, which hit the finger of left hand of Lal Chand. Dharam Pal, accused, fired shots from his licenced gun, at Subhash, which hit him, on the left arm. Shakti and Satyawan, accused, caused injuries, with their gandasis. Lachhmi W/o Deva Singh, reached the spot, and intervened, but she was also caused injuries. Two Constables from Naguran Chowk, reached the spot. A shot was fired Crl. Appeal No.166-SB of 1992 4 from the licenced revolver of Lal Chand, which hit Narain Singh, Constable. It was further stated that Lal Chand, ran away from the spot, and reached the hospital, to get himself, medico-legally examined. Medical reports of the injured were collected. The accused were arrested. Licenced gun was also taken into possession. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Sections 148, 326, 323, and 307 read with 149 IPC, was framed against the accused, to which they pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Dr.G.D.Gupta (PW-1), Ram Chander, Bill Clerk (PW-2), Jagbir Singh, Constable (PW-3), Narain Singh, Constable (PW-4), Deva Singh (PW-5), Dr.Prem Kumar (PW-6), Lal Chand (PW-7), Raj Pal, HC (PW-8), Subhash (PW-9), Subhash Chand, Patwari (PW-10), and Phul Kumar, SI (PW-11). Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them, that, on information of the fight between Lal Chand and Deva Singh, and his three sons, on one side, and Dharam Pal, Hoshiara, Shakti and Satyawan, on the other side, Dariya alongwith Randhir Singh and Dalipa, his brothers, reached the fields, to Crl. Appeal No.166-SB of 1992 5 separate them, and when they reached, two Constables, also reached. Lal Chand fired at Narain Singh, Constable, who fell down. They also stated that injuries on Dariya were also caused. It was further stated by them, that the complainant party wanted to stop the running water course, leading to the fields of Dariya etc. In their defence, the accused produced, Ex.DX, certified copy of the statement of Subhash Chand, Patwari, Ex.DY, certified copy of the map, and Ex.DZ, copy of judgment. Thereafter, they closed the defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Dariya Singh, Dharam Pal, Satyawan, Shakti and Hoshiar Singh, accused (now appellants), whereas, acquitted Dalip Singh, Randhir Singh, Shamsher, and Jaipal @ Kura, accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellants. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, at the very outset, submitted that the occurrence took place, in the passage ( rasta ) where the dispute had arisen, with regard to the digging of water course. He further submitted that the members of the accused party, as also the members of the complainant party, were armed with various types of weapons and they had come to fight with each other. He further submitted that it was a case of free fight, in which the members of both the parties, caused Crl. Appeal No.166-SB of 1992 6 injuries, on each other, with various types of weapons. He further submitted that the Police officials, namely Jagbir Singh, Constable (PW-3), and Narain Singh, Constable (PW-4), did not support the statements of Deva Singh (PW-5), and Lal Chand (PW-7). He further submitted that there were material improvements, in the statements of Deva Singh (PW-5), and Lal Chand (PW-7), and, as such, the same were not reliable. He further submitted that the trial Court was wrong, in invoking the provisions of Section 149 IPC, as there was no unlawful assembly. It was further submitted that each accused who participated in the occurrence, was required to be held guilty for his individual acts. He further submitted that Satyawan and Hoshiar Singh, were falsely implicated to exaggerate the number of the accused. 10. The Counsel for the respondent, however, submitted that the members of the accused party were the aggressors, whereas the members of the complainant party were the aggressive. He further submitted that, as per the site plan, the occurrence took place in the fields of Lal Chand , complainant. He further submitted that the accused party came to carve out a water course in the passage. He further submitted that the members of the accused party caused injuries on the person of the members of the complainant party, in the fields of Lal Chand. He further submitted that the improvements, which cropped up, in the statements of the witnesses, being insignificant, were rightly ignored by the trial Court. He further submitted that the mere fact that two witnesses, did not support the statements of Deva Singh and Lal Chand, to some extent, did not make the case of the prosecution, in any way, unreliable. 11. The first question, that arises for consideration, is, as to Crl. Appeal No.166-SB of 1992 7 whether, the members of the accused party were the aggressors, or the members of the complainant party were the aggressors. It is proved from the evidence on record, that the occurrence, took place, in the passage. Deva Singh (PW-5), stated that Dariya and other accused, started digging the water course, in the passage (rasta). He further stated that Lal Chand was also present, at that time. Lal Chand, raised objection to the digging of the water course, on the ground that it was a passage. Remaining accused also reached there. He further stated that there were police officials with accused Dariya etc. Dariya was adament in digging the water course, on the ground, that toria field was to be irrigated through the same. Lal Chand advised that if the water-course was to be dug, the same be dug in the fields. It was further stated that he, his son Subhash, and his wife Lachhmi, reached the spot, when the talk was going on between Lal Chand, and the accused. They tried to bring them round, but to no effect. Dariya accused was armed with lathi, Dalip (since acquitted) was armed with lathi, Randhir (since acquitted) was armed with lathi, Hoshiara, was armed with lathi, Shamsher and Jai Pal (since acquitted), were carrying jelli and lathi, respectively. Shakti and Satyawan, were armed with a gandasi each. Dharma was having a gun, in his hand. It was further stated by him, that Dariya, Hoshiara, Randhir, and Dalipa, gave lathi blows, on the person of Lal Chand. Lal Chand, was standing, at that time, in his fields, while the accused were standing in the passage (rasta). He further stated that Satyawan, gave a gandasi blow, on his (Deva) shoulder, while Shakti gave gandasi blow, on his hand. He further stated that his wife also received injuries, at the hands of the accused. He further stated that Dharma, accused, fired 5 or 6 shots, and Crl. Appeal No.166-SB of 1992 8 Shubhash was injured, as a result of firing. It was further stated by him, that they ran towards their kotha, while Lal Chand, ran away towards the village, as his pistol was snatched. It was further stated by him, that Dharma, Shakti and Satyawan, chased him. The statement of Deva Singh (PW-5), was duly corroborated by Lal Chand (PW-7). Further corroboration, to their statements was provided by Dr. G.D.Gupta (PW-1), Radiologist, and Dr. Prem Kumar Gupta, (PW-6), who medico- legally examined Deva Singh S/o Mai Ram, and found following injuries, on his person :- 1. An incised wound of 15 cm length, spandle shaped, maximum width was 3 cm at centre with fresh bleeding present. Anterior end was 5 cm superior to highest point of enterior exaillary fold on left side. Wound was going superiorly and then crossing over left shoulder and then over posterior aspect of left shoulder. Depth was more than 5 cm at highest point of shoulder and cleicle was cut. Tissues deep to that were not probed. 2. An incised wound of left palm. Its lateral end was at mid point of region of Ist matacarpal, and would was going proximal to area 1 cm distal to distal palmer crease going to ulnar side. Direction of wound was downwards and dorsally (from superficial to deep). Fresh bleeding was present from that. Some of the tendons were incised. Details could not be examined due to huge bleeding. Injury No.1, was grievous. Injury No.2, was kept as per opinion of Orphopedician, and under observation. Both these injuries Crl. Appeal No.166-SB of 1992 9 had been caused with a sharp-edged weapon, and the duration of the injuries was 6 hours. 11-A. On the same day, he (PW-6) at about 3.25 PM, medico-legally examined, Subhash Chand S/o Deva Singh, and found following injury, on his person :- 1. Multiple small lacerated wound with abraded margins, with clotted blood all over and mild fress oozing from them, were present about 14 in number, size merely 0.5 x 0.5cm, over posterior aspect of right elbow and upper 1/4th of posterior aspect of right forearm. Deformity was present in region of upper 1/4th of right forearm. 11-B. On the same day, he (PW-6) at about 5.00 PM, medico-legally examined, Lal Chand S/o Pannu Ram, and found the following injuries, on his person :- 1. An abrasion of 3 x 2cm over top of left shoulder with mild hemorrhagic oozing from that. There was no bone injury. 2. There was complaint of pain over upper 1/4th of left forearm. There was no sign of injury. 3. Complaint of pain over dorsem of left hand. There was no sign of injury. 4. There was lacerated would 3 x2cm scalp deep with fresh bleeding present over an area 3cm on left of verdex. There was no bone injury. Injuries No.1 to 4 were caused within 6 hours, while the probable duration of injury Nos.2 and 3 could not be commented upon. The weapon use for all the injuries, was blunt in nature. Crl. Appeal No.166-SB of 1992 10 11-C. On the same day, he (PW-6) at about 5.30 PM, medico-legally examined, Lachhmi W/o Deva Singh, and found following injury, on his person :- 1. There was marked tenderness 5cm superior to tip of left radial styloid process. (over left forearm) lateral aspect with multiple small 0.2 x 0.3cm abrassions with clotted blood over them, at the site of tenderness. A lacertaed wound of 0.2 x 0.3 cm skin deep was present at the site of tenderness. Those bled, when touched. The probable duration was 6 hours, and it was caused by a blunt weapon. After seeing the X-ray report, the Doctor opined that the injury No.2, on the person of Deva Singh, was grievous. After seeing X- ray report, he found injury No.1, was grievous in nature, on the person of Subhash Chand, and was caused by a fire arm. After seeing the X-ray, he found injury No.1, on the person of Lachhmi, as simple, in nature. 12. Narain Singh, HC (PW-4), deposed that, Lal Chand (PW-7) caused a fire arm injury, from his revolver on the neck of Narain Singh, HC (PW-4), which was dangerous to life. Ex.DC, is the copy of the medico-legal report of Dariya Singh, one of the accused. In his statement, under Section 313 Cr.P.C., Dariya stated that Lal Chand, also caused fire arm injuries, on his person. Jagbir Singh, Constable (PW-3), also stated that Lal Chand caused fire arm injuries, on the person of Dariya, accused. He also stated that the members of both the parties, started fighting with each other. On medical examination of Dariya, the following injuries were found, on his person, by the Doctor : Crl. Appeal No.166-SB of 1992 11 1. 1.2 x 1.2cm lacerated wound with abraded margin with clotted blood all around and mild fresh bleeding was present. It was 11cm superior and 1cm on left of bridge of nose. Depty was not probed. There was no skin staining present. 2. .7 x .7cm lacerated wound with abraded margins and clotted blood around that with mild fresh oozing from that was present. No air was coming out of it. No skin staining was present round it. It is over area of 7th intercostals space and throb on left side 15cm on left of mind line and 8cm superior to inferior coastal margin. There was no respirated distress chest examination revealed nothing abnormal. 3. 0.7 x 0.7cm lacerated wound with abraded margins with mild blood coming out was present, 6cm on right and medial to superior pole of left patella and 3cm superior to it. There was no bony injury. No hematoma was present. Arterial pulsation distal to injury were normal. 4. Two abrasions of 1 x 1cm each with fresh oozing were present at distal and proximal pharynges of right thumb over ventral and dorsal aspects respectively. There was no bony injury present. A yellow cloth worn at head, a jacket and shirt, dhoti of victim showing tear marks corresponding to injuries 1 to 3 which had been encircled, labelled had been taken. Packet was made. Sealed with six seal marks and was sent to Crl. Appeal No.166-SB of 1992 12 Police. 12-A. These injuries were caused, on the person of Narain (PW-4), and Dariya accused, in the same occurrence. There was, therefore, 4 injured, on the side of the complainant party, and 2 injured, on the other side. Keeping in view the place of occurrence i.e. passage (rasta), the nature of injuries, caused on the person of the members of both the parties, and the weapons of offence used, it could be said that the members of both the parties, came armed with various types of weapons, just with a view to enter into a free fight. Some of the injuries, were dangerous to life, and some of the injuries, were grievous, in nature, on the person of the members of both the parties. The principle of law, laid down, in Bachan Singh and others Vs. The State 1969 PLR 393 (P&H) (DB), and Gaja Nand Vs. State of Uttar Pradesh AIR 1954 (SC) 695, was to the effect, that a free fight, is that, when both sides mean to fight, from the start, go out to fight, and there is pitched battle, the question of who attacks and who defends, in such a fight, is wholly immaterial and depends upon the tactics, adopted by the rival commanders. It is to be seen, as to whether, the principle of law, is applicable to the facts of the present case, or not. Various factors, from which, it could be concluded, that it was a case of free fight, have been narrated above. From the said factors, it can be concluded, that the accused were not the aggressos, but it was a case of free fight, where both the parties armed with various types of weapons, measured their strength, and caused injuries, on each other. The trial Court, did not, in clear-cut terms, hold that it was a free fight, though it convicted the members of both the parties, i.e. the members of the accused party, in the present case, and the members of the Crl. Appeal No.166-SB of 1992 13 complainant party, in the connected case, with the aid of Section 34 or Section 149 IPC. The trial Court was wrong, in convicting the members of both the parties, with the aid of Sections 34 or 149 IPC. It was required to convict and sentence the members of both the parties, as per their individual acts. The submission of the Counsel for the appellants, to the effect, that the members of the complainant party were the aggressors, therefore, being without merit, must fail, and the same stands rejected. 13. Coming to the improvements, which occurred in the statements of Deva Singh and Lal Chand, it may be stated here, that the same are immaterial and insignificant. Deva Singh, deposed that, he stated before the Police, that Lal Chand had raised an objection, to the effect that there would be an obstruction, in the way, in taking carts etc. He further deposed that he stated before the Police, that two official witnesses of the Police, came with Dariya etc. He also deposed that he stated before the Police, that they were empty handed, and did not cause injury to any person. He further deposed that he stated before the Police, that Birbal was in another field, and was not present, at the spot. He also deposed that he stated before the Police, that they bolted the kotha from inside, and Police brought them, to the hospital, in four wheeler, after getting the door opened. When he was confronted with his previous statement, Ex.DB, these facts were not found recorded therein. Lal Chand (PW-7) deposed that he had not stated before the police, that the sons of Dariya and Dariya, wanted to continue the water course, and he wanted to dismantle, that water course. He further deposed, that he had not stated to the Police that he, Deva Singh, Mahavir, Subhash, and Birbal, were present, and wanted to close the running water course. He further Crl. Appeal No.166-SB of 1992 14 deposed that he did not state before the police, that he was given lathi blow, while closing the water course. When his attention was drawn to his previous statement, these facts were found recorded therein. He further deposed that he had stated before the Police, that Randhir had caught hold of him. When he was confronted with his previous statement, this fact was not found recorded therein. All these contradictions and improvements, made by these witnesses, in their statements, did not relate to the subtratum of the case. These only relate to insignificant details. These improvements and contradictions, therefore, did not cause any dent, in the prosecution story, in any manner. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 14. It appears that some of the members of the accused party were apparently falsely roped in. Dariya and Hoshiar Singh were statedly armed with lathies, whereas, Satyawan and Shakti, were statedly armed with a gandasi each. Hoshiar Singh is the son of Dalip Singh. Dalip Singh, was also one of the accused, who was acquitted by the trial Court. Dalip Singh, is the brother of Dariya, and, as such, Hoshiara, is the nephew of Dariya. Both Dariya and Hoshiara, were attributed lathi blows on the person of Lal Chand. In my considered opinion, one of them, was capable enough to cause injuries, with lathi, on the person of Lal Chand. Just with a view to exaggerate the number of the accused, the name of Hoshiar Singh, was apparently involved in the commission of crime. Similarly, Satyawan and Shakti were statedly armed with gandasis. There were two injuries, on the person of Deva Singh, and the same were declared grievous in nature. In my considered opinion, Shakti Singh, Crl. Appeal No.166-SB of 1992 15 with gandasi, was capable enough to cause two incised injuries, on the person of Deva Singh. Satyawan is the son of Dariya Singh, and Shakti Singh, is also the son of Dariya Singh. It appears that, Satyawan, was falsely involved, in the instant case, with a view to exaggerate the