IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 460-DB of 1998 Dated of Decision:- July 02, 2009 Bhambal and others ....APPELLANTS VERSUS The State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present:- Sh. R.S.Rai, Senior Advocate with Sh. Gautam Dutt, Advocate for the appellants. Sh. Kulvir Narwal, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. This is an appeal against the judgment/order 19.9.1998/ 24.9.1998 of the learned Sessions Judge, Gurgaon, whereby he convicted Fajru son of Chander Khan, Suraj Mal son of Chand Mal, Hassan Mohammad son of Chander Khan, Nijar Khan son of Chander Khan, Sultan son of Noor Mohammad under Sections 302/323/325 148/149 IPC and sentenced them to undergo imprisonment as under: - Name of convict Offence under Section Sentence awarded Amount of fine Sentence in default of payment of fine 2 Criminal Appeal No. 460-DB of 1998 1 Fajru 2 Suraj Mal 3 Hassan Mohammad 4 Nijar Khan 5 Sultan 148 IPC Two years RI each Nil - 302 IPC read with 149 IPC Imprisonmen t for life each Rs.1000/- each Six months RI 325 IPC read with 149 IPC Three years RI each Rs.300/- each Two months RI 323 IPC read with 149 IPC Six months RI each Nil - The trial Court also convicted Bhambal son of Sampat, Raj Khan son of Rai Mal, Deenu son of Peerji, Gafoor son of Niwaj Khan, Ilyas son of Mamrej, Hussain Khan son of Niwaj Khan, Issa son of Suraj Mal, Hussain Khan son of Dallu and Jamil son of Sumer Khan under Sections 323/325/148/149 IPC and sentenced them as under: - Name of convict Offence under Section Sentence awarded Amount of fine Sentence in default of payment of fine 3 Criminal Appeal No. 460-DB of 1998 1 Bhamal 2 Raj Khan 3 Deenu 4 Gafoor 5 Ilyas 6 Hussain Khan S/O Niwaj Khan 7 Issa S/O Suraj Mal 8 Hussain Khan S/O Dallu 9 Jamil 148 IPC Two years RI each Nil - 325 IPC read with 149 IPC Three years RI each Rs.300/- each Two months RI 323 IPC read with 149 IPC Six months RI each Nil - Sentences were ordered to run concurrently. The case of the prosecution is unfolded by the statement Ex.PC of Ash Mohammad given to Jagdish Parshad ASI at Primary Health Centre, Nagina. Ash Mohammad stated, that he is an agriculturist. On 12.2.1995 at 9.30 a.m., he along with Akhtar, Rashid and Rehmat were putting earth along the back wall of their residential house. At that time Ashila, Mehmood and Jumma were sitting at the shop of Ashila. In the meantime, Fazru son of Chandu came there and asked them as to why they were digging the earth from their land. Ash Mohammad stated, that the land was common and no demarcation had taken place. Fazru then threatened him that he would be taught a lesson. After some time, Fazru along with Suraj Mal, Hassan Mohammad, Nazar Khan and Sultan all armed with lathis came there. Thereafter Suraj Mal gave a lathi blow on the waist of Rehmat. Fazru gave a lathi blow on the abdomen of Rehmat. Hassan Mohammad 4 Criminal Appeal No. 460-DB of 1998 gave a lathi blow on the neck of Rehmat. Nazar Khan gave a lathi blow on the abdomen of Rehmat. Sultan gave a lathi blow on the waist of Rehmat. On the call given by Fazru, accused Isha, Ilias, Hussain Khan son of Niwaj Khan, Deenu, Hussain Khan son of Dallu, Gaffur, Raje Khan and Babbal came there armed with lathis and pharsas. On reaching there, Isha gave a pharsa blow on the head of Rashid lathiwise. Illyas gave a Bellam blow on his head lathiwise. Hussain Khan and Deenu gave a lathi blow each on the hands of Shokat. Gaffur gave a blow on the feet of Umar Mohammad. Babbal gave a lathi blow on the right feet of Sheodan. Jamil son of Sumer Khan gave a lathi blow on the foot of Khurshid and Raje Khan gave a Pharsa blow on the right feet of Ash Mohammad lathiwise. Ash Mohammad further stated, that they also gave injuries to the accused party in self-defence. Subban came to the spot. Mohar Khan gave lathi blows on his head and hands. Thereafter Ashila, Mehmood, Jumma and some persons from the village came there and separated the two parties. Ash Mohammad with his brothers took Rehmat to the Civil Hospital, at Nagina. Rehmat succumbed to his injuries in the hospital. On the basis of this statement, FIR Ex.PC/2 was recorded on the same day i.e. 12.2.1995 at 4.30 p.m. and the special report reached the S.D.J.M. on 12.2.1995 at 8.40 p.m. The prosecution to prove its case brought into the witness box, Dr. B.B.Aggarwal PW1, Ashok Kumar PW2, Aas Mohd. PW3, Asilla PW4, Khurshid PW5, Dr. Pawan Singh PW6, Dr. B.K.Moil PW7, Jagdish Parshad ASI PW8 and Puran Mal SI PW9. 5 Criminal Appeal No. 460-DB of 1998 Learned counsel for the appellants has argued, that it is a case of free fight. It has come in evidence that the complainant party was the one which was picking up the earth from the common land of the co-sharer without taking the consent of the appellants. The injuries attributed to appellants Sultan, Nijar Khan, Hassan Mohd., Fazru and Jamil are five in number. The fatal injuries being on the abdomen given by Fazru and Nijar Khan. The fatal injuries were not given intentionally to injure the spleen of the deceased, but Rehmat died due to non availability of medical treatment. Occurrence had taken place at 9.30 p.m. on 12.2.1995 and he was taken into a tractor trolley to the Primary Health Centre, Nagina at 12.30 p.m. The complainant party felt the injuries not to be serious, as all of them were abrasions. It has come in the evidence of Aas Mohd. PW3, that there was no previous enmity between the parties. In fact only a skirmish had taken place. At the most, it is a case of free fight, where both the parties gave injuries to each other. Appellants Fazru, Hassan Mohd, Nijar Khan and Jamil have categorically stated in their statements under Section 313 Cr.P.C. that they gave injuries to the complainant party in self-defence. The case at the most falls under Section 304 Part II IPC, as it was a sudden fight. Appellants did not have any intention to take the life of the deceased. Learned counsel for the State has argued, that FIR Ex.PC/2 is prompt. Occurrence had taken place at 9.30 a.m. on 12.2.1995. The first priority given by the complainant party was to save the life of Rehmat. They took him to the Primary Health Centre, Nagina. FIR Ex.PC/2 came 6 Criminal Appeal No. 460-DB of 1998 into existence at 4.30 p.m. after the statement of Aas Mohd. was recorded by Jagdish Chander ASI PW8, at the Primary Health Centre, Nagina and the special report reached the S.D.J.M. at 8.40 p.m. on the same day. The names of the accused, the weapons of offence and the nature of injuries caused have been clearly mentioned in FIR Ex.PC/2. Aas Mohd. PW3 is an injured eye witness. Asilla PW4, who had a Tea shop nearby, is also an independent eye witness. Both have supported the case of the prosecution. Khurshid PW5 is also an eye witness. His testimony could not be demolished in cross-examination. He also has supported the prosecution case. Appellants Fazru, Hassan Mohd, Nijar Khan and Jamil have stated in their statements under Section 313 Cr.P.C., that they gave injuries in self defence. This itself points to a fight taking place and it was the appellant party, which was the aggressor. We have heard the learned counsel for the parties and perused the record with their assistance. Appellants Sultan, Nijar Khan, Hassan Mohd., Fazru and Suraj Mal have been convicted under Section 302/325/323 read with Sections 148/149 and sentenced to undergo life imprisonment. These are the first set of accused/appellants, who injured Rehmat. The other appellants were ones, who came on to the scene a bit later armed with lathis and pharsas and gave injuries to the witnesses and some to the deceased also. Aas Mohd. PW3 in his statement before the Court has stated, that prior to this occurrence, both the complainant and the appellant parties did not have any dispute. He has further stated, that the land is common, 7 Criminal Appeal No. 460-DB of 1998 from where the mud/sand was being picked up and no partition had taken place. A suggestion has been put to this witness, that it was appellants Fazru, Hassan Mohd, Jamil and Nijar Khan, who received injuries and in their right to private defence of person and property, they inflicted injuries on the complainant party. The injuries on the person of the deceased are five in numbers. All are abrasions. We cannot overlook the argument of the learned counsel for the appellants, that the injuries being abrasions, the complainant party probably thought that Rehmat was not in a serious condition. This conclusion can be drawn from the fact, that Rehmat was not taken to the hospital immediately, but after a gap of three hours i.e. at 12.30 p.m. Rehmat was injured at 9.30 a.m. If the complainant party had thought him to be serious, he would have been taken to the Primary Health Centre, Nagina, which was only 8 K.Ms. away. The complainant party did not knew that the spleen of Rehmat had been injured, which ultimately caused his death. For three hours he was kept in the house, with no medical care. It has come in the evidence of Aas Mohd PW3, that the land from where mud was being picked up was common. Mud was being picked up to put along the wall of their house. This land was common to both the appellants and the complainant party. It was this provocation of picking up of mud/sand that provoked the appellants to take the law into their own hands. It is a case of a sudden fight, where both parties inflicted injuries on each other. Appellants did not have the intention to take the life of Rehmat but unlikely two dangs blows were given on his abdomen, which injured his spleen. The complainant party did not visualize the spleen injury, which 8 Criminal Appeal No. 460-DB of 1998 turned out to be fatal for Rehmat. If medical aid had been given in time, then probably the life of Rehmat could have been saved. We are of the considered opinion that at the most, appellants Sultan son of Noor Mohammad, Nijar Khan son of Chander Khan, Hassan Mohd. son of Chander Khan, Fazru son of Chander Khan and Suraj Mal son of Chand Mal are guilty of the offence under Section 304 Part II IPC. Their sentences are also modified to that of five years R.I. each. They are directed to pay a fine of Rs. 5,000/- each, which shall be paid to the widow of Rehmat deceased, if alive; otherwise to the legal heirs of deceased Rehmat. Conviction of Bhambal son of Sampat, Raje Khan son of Rai Mal, Deenu son of Peerji, Gafoor son of Niwaj Khan, Ilyas son of Mamraj, Hussain Khan son of Niwaj Khan, Issa son of Suraj Mal, Hussain Khan son of Dallu and Jamil son of Sumer Khan shall remain intact. Their sentences are modified to that of already undergone. They are directed to pay a fine of Rs.3,000/- each, which shall be paid to the widow of the deceased, if alive; otherwise to the legal heirs of Rehmat deceased. In the default of payment of fine, appellants shall undergo imprisonment of six months. With the above modification in conviction and sentence of the appellants, appeal is dismissed. (MEHTAB S.GILL) JUDGE (JITENDRA CHAUHAN) July 02, 2009 JUDGE 9 Criminal Appeal No. 460-DB of 1998 SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO