Sher Singh & Anr vs State Of Haryana

2. At 6 a.m. on the 29th September 1991 Umed Singh deceased accompanied by his wife Bimla PW-1 and son Raj Kumar PW-6 had gone to their fields situated in village Kosli, Police Station Jatusana, District Rewari, for harvesting the Crl. Appeal No.1071/2009 etc. bajra crop when 2 accused Balbir Singh armed with a Kulhari, Mange Ram, Sher Singh and Harish with lathis, Surender with a bankri, Rajesh and Smt. Rajesh with a jailli each, and Des Raj empty handed came to the spot. The accused raised a lalkara that they would teach Umed Singh a lesson for having interfered in the purchase of agricultural land and on saying so Balbir Singh gave a kulhari blow on the left knee of Umed Singh, Des Raj grappled with Umed Singh and felled him to the ground whereafter Sher Singh gave a lathi blow on his chest and Mange Ram and Harish also gave lathi blows on his person and Surender and Smt. Rajesh gave blows with bankris on the back portion of his hand and Rajesh gave a jailli blow lathiwise. Bimla and Raj Kumar stepped forward to rescue Umed Singh and they too were attacked by Surender who gave a bankri blow on Bimla's head and Smt. Rajesh administered another blow on her head whereafter Mange Ram gave a lathi blow on the left hand and Raju gave a jailli blow lathiwise on Bimla's head. An alarm raised by Bimla attracted many persons, including Crl. Appeal No.1071/2009 etc. Shakuntla, 3 Hoshiar, Raghu Nath, Om Prakash, Siri Chand and Mahabir and when Shakuntla intervened, Mange Ram dealt her a lathi blow on the left knee. The accused then lifted Umed Singh and took him to the tubewell belonging to Balbir Singh accused where he was left bleeding. The accused then ran away from the spot. Information about the occurrence was carried to the village by Raj Kumar PW-6 on which Mansa, Braham and Bhagat Singh reached the tubewell. They removed Umed Singh, Bimla and Raj Kumar in an auto rickshaw to the Primary Health Centre, Kosli. Dr. Ravinder Nath examined Bimla at 7.30 am. on the same day and found three skin deep lacerated wounds on the head, forearm and the web space between the index and middle finger of the left hand and several other injuries on the thighs as well. The doctor opined that the injuries had been caused by a blunt weapon within six hours. Raj Kumar too was examined by the said doctor who found two superficial injuries on the right side of his head and three on the right lower leg. Injury No.1 was put under Crl. Appeal No.1071/2009 etc. observation 4 while the other was declared simple. In the opinion of the doctor, these injuries had been caused within six hours. Umed Singh was also examined and was found to have injuries of the dimensions of 10 cm x 10 cm and 15 cm x 15 cm on the upper arm and back, respectively. The doctor opined that all the injuries had been caused by a blunt weapon within a duration of six hours. Umed Singh, after receiving first aid at the Primary Health Center, was referred to the Civil Hospital, Rewari at about 10 a.m. while Bimla and Raj Kumar were discharged. The Medical Officer also sent information to the Police Post, Kosli about the arrival of the injured. ASI Balbir Singh PW accordingly reached the Primary Health Center but found that Umed Singh had already been removed to the Civil Hospital, whereas Bimla and Raj Kumar had gone home after being discharged, with the result that the ASI received no information about the incident at that time. Umed Singh, however, died in the Civil Hospital, Rewari at 1.10 p.m. on the same day and information to this effect was received by Bimla Crl. Appeal No.1071/2009 etc. in the village at 5 3.00 p.m. A First Information Report was, accordingly, registered at Police Station, Jatusana at 7.10 p.m. on the basis of Bimla's statement recorded by ASI Balbir Singh of Police Post, Kosli at 6 p.m. The Special Report was also delivered to the Illaqa Magistrate at Rewari on the 30th September 1991 at 1.25 a.m. ASI Balbir Singh also reached the hospital and conducted the inquest proceedings and referred the dead body for a post- mortem examination which was carried out by Dr. V.K.Jain, PW-4 of the Civil Hospital, Rewari. In the opinion of the Medical Officer, all the injuries were ante-mortem in nature but he was unable to give any definite opinion about the weapons used as nine of the injuries had been stitched up whereas the remaining injuries were blunt weapon injuries. During the course of the investigation, Sub-Inspector Jai Narain PW-8 visited the place of incident (on the 30th September 1991) and picked up two pairs of chappals, a rapri with a broken handle, a piece of rope and a blood stained match box from the field of Umed Singh deceased or Crl. Appeal No.1071/2009 etc. nearabouts. The 6 Police Officer then went to the field of Balbir Singh accused and picked up blood stained earth from near his tubewell. He also prepared the site plan relating to the incident in the field of Umed Singh and the tubewell of Balbir Singh. Some of the accused including Sher Singh were arrested on the October 2, 1991 by Sub-Inspector Karan Singh PW-10 and on the interrogation of accused, Balbir Singh, a kulhari was also recovered. On the completion of the investigation, the police filed a charge-sheet against Balbir Singh and his sons Mange Ram, Des Raj and Surender whereas the other accused i.e. Sher Singh, Rajesh, Harish and Smt. Rajesh were placed in column 2. These accused were subsequently summoned by orders dated April 4, 1992 made on an application under Section 319 of the Cr.P.C.

3. The prosecution in support of its case relied primarily on the evidence of Bimla PW-2 and Raj Kumar PW-6, the two injured witness, Dr. V.K.Jain, PW-4 who had conducted the post-mortem on the dead body, ASI Balbir Singh PW-7, Sub-

Sub-Inspector Karan Singh PW-10. The prosecution case was then put to the accused and they denied all the allegations levelled against them and pleaded false implication as also a counter version. Mange Ram stated that two years before the occurrence, his father Balbir had purchased 2 acres of land and had acquired rights as a co-sharer and on that basis he had successfully pre-empted a sale in favour of Umed Singh and that Umed Singh was, accordingly, upset with Balbir Singh and that a fight had taken place on the 21st August 1991 and injuries had been inflicted on his brother Des Raj accused. He further stated that at about 6 a.m. on the 29 th September 1991 his mother Parvati DW-9 had been working in their field whereas Des Raj accused was ploughing the land at some distance when Umed Singh, Bimla and Raj Kumar armed with Kasis and Bhankris had attacked Parvati and caused injuries to her on which Des Raj had come running and he too had been caused injuries by them whereafter Pappu, Partap, Hoshiar and Raghbir had also arrived at that Crl. Appeal No.1071/2009 etc. place and Des 8 Raj and the new arrivals had accordingly given injuries to the complainant party in their defence. He further stated that Parvati had been medico-legally examined on the same day at the Primary Health Center, Kosli in the presence of the complainant party and though the police too had been present at that time and a request had been made by Parvati to record her statement, the police had not done so and had colluded with the opposite party and after the death of Umed Singh, had registered a false case against them. Sher Singh and Harish, however, pleaded an alibi and examined three witnesses Ravinder Singh DW-1, Bhagwan Devi DW-2 and Shailender DW-9 to the effect that they had been present in their house at 6 a.m. on the 29th September 1991 with Sher Singh taking tuitions ( and Harish still asleep) which had been attended by Ravi, Ravinder Singh, PW and Rajesh upto 8 a.m. and that Bhagwan Devi had also come to take lassi during that period. Dr. Neel Kanth Sharma DW-7, Radiologist, ESI Hospital, Faridabad was also examined who deposed that he had performed an X-Ray on Crl. Appeal No.1071/2009 etc. the person of 9 Parvati DW-9 on the 28th October, 1991 and the test had revealed a dislocation of the right wrist and a fracture of the femur.

The High Court vide its judgment dated 1st October 2008 partly allowed the appeal whereby the conviction and sentence awarded under Section 302/149 was set aside and a conviction under Section 304 Part II read with Section 149 with a sentence of 5 years rigorous imprisonment and a fine of Rs.50,000/- each was substituted; the other parts of the sentence being maintained. In arriving at its conclusions, the High Court found that as the place of occurrence had been shifted by the prosecution from the field of Balbir Singh to that of Umed Singh and as there was no explanation for the injuries to two members of the accused party it was difficult to believe the prosecution story in totality. The Court then Crl. Appeal No.1071/2009 etc. observed that the 11 nature and extent of the injuries received by the witnesses would help in determining what had really transpired and by some convoluted inferential process arrived at a conclusion which was neither the story of the prosecution nor of the defence and observed thus:

10. It has also been submitted in the light of the findings recorded by the High Court that the genesis and site of the incident had been changed as the High Court too had not accepted that the incident had happened in the field of Umed Singh and that if the matter was to be carried to its logical conclusion, the conviction of the appellants could not be justified. It has been emphasized that the prosecution story that Umed Singh had been dragged from his field to the tubewell of Balbir Singh had no basis in the evidence as there were no drag marks on the body or on the ground indicating that the body had indeed been dragged from one place to the other. It bears reiteration that as per the prosecution story the incident had happened in the field of Umed Singh whereafter he had been shifted to the tubewell of Balbir Singh and subsequently taken to the Primary Health Centre. Sub- Inspector Jai Narain PW8 visited the site of occurrence on the 30th September 1991 and took into possession two pairs of Crl. Appeal No.1071/2009 etc. chappals Ex.P3 21 and P4, one rapri with a broken handle, one danti, one piece of rope and one blood stained match box lying on the path by the side of the occurrence which would be relevant as the complainant party was harvesting the bajra crop. He had, thereafter, examined the place surrounding the tubewell and recovered blood stained earth from that place in the presence of Bhagat Singh, Sarpanch. It is perhaps even more significant that in the site plan PW prepared by this Police Officer, the prosecution story is clearly spelt out. Mark A in the site plan is the place where the injuries are alleged to have been caused to Umed Singh, his wife Bimla and to Raj Kumar and also the place from where two pairs of chappals, a broken bankri and a danti had been picked up. Mark B is the place where the rope was lying and the distance from Mark A to Mark B is 14 karams. Mark C in the site plan is the place where the blood stained match box had been picked up and the distance between Mark A and C is 17 karams and Mark D is the place from where blood stained earth had been picked up from the field of Balbir Crl. Appeal No.1071/2009 etc. Singh and the 22 distance from Mark A to Mark D is 294 karams. (Note: One karam is about 5 feet) It is significant that the site plan Ex.PW prepared by the police officer corresponds entirely with the site plan Ex.PG prepared by the Patwari. The two site plans indicate that when Umed Singh was dragged or lifted from Mark A to Mark D, several items which had been on his person had fallen en route and this is borne out by the recoveries noted above. To our mind, the plans which were prepared almost contemporaneously to the incident, prove the case of the prosecution with regard to the site of the incident beyond any doubt. The observation of the High Court, therefore, that there appeared to be some confusion about the place of incident is completely misplaced. In that eventuality, also the possibility that a large number of persons had been involved in the incident, cannot be ruled out, as it would not have been possible for a few persons to have carried Umed Singh to a distance 294 karams from point A to D. It must, therefore, be held that the circumstances indicate that all the appellants Crl. Appeal No.1071/2009 etc. were in fact 23 participants in the murder.

Crl. Appeal No.1071/2009 etc. 26

15. A perusal of these injuries and the post-mortem report clearly reveal that the intention of the accused was evident and that was to cause death and merely because most of the injuries were on the extremities would not be a reason to bring the case within Section 304 Part II of the IPC more particularly as the doctor had opined that they were sufficient to cause death in the ordinary course of nature. It appears that great damage had been caused as the fracture of the 9th and 10th ribs had damaged vital organs both in the abdominal and thoracic cavities. The judgments relied upon by the Division Bench to hold that the case would fall within Section 304 Part Crl. Appeal No.1071/2009 etc. II are on their 30 peculiar facts. It is true, that as per the statement of the two eye witnesses, some of the accused were armed with cutting weapons and there are no incised injuries on the person of the deceased. The post-mortem report, however, says that no opinion could be given with regard to the weapons used for injury Nos. 6, 10, 12, 17 to 20, 22, 24 and 25 as the said injuries had been stitched up at the time when Umed Singh was still alive. The post-mortem Doctor, however, testified that all the other injuries were blunt weapon injuries. It has also come in evidence that some of the cutting weapons had been used from the wrong side as well. We are, therefore, of the opinion that the judgment of the High Court cannot be sustained in fact or in law. Criminal Appeal Nos. 1071/2009 and 1294/2009 Sher Singh vs. State of Haryana and Des Raj vs. State of Haryana are, accordingly, dismissed whereas Criminal Appeal Nos. 97- 98/2010 and 182-183/2010 are allowed. Ipso-facto the judgment of the trial court is restored in all respects. The appeals are disposed of as above.