High Court of Punjab and Haryana, Chandigarh
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Hans Ram & Anr v. STATE OF HARYANA & Anr - CRA-D-80-DB-1993  RD-P&H 1046 (21 February 2006)
Criminal Appeal No.80-DB of 1993
Date of decision: 8.2.2006
Hans Ram and another ...Appellants
State of Haryana ...Respondent
Criminal Appeal No.304-DBA of 1993
State of Haryana ...Appellant
Satbir and another ...Respondents
Criminal Revision No. 621 of 1993
Maha Singh ...Petitioner
Har Dhayan and others ...Respondents
CORAM: HON'BLE MR.JUSTICE AMAR DUTT
HON'BLE MR.JUSTICE BALDEV SINGH
Present: Mr.Vinod Ghai, Advocate for the appellants.
Mr.B.S.Rana, Senior Deputy Advocate General, Haryana Mr.T.P.S.Mann, Advocate for the complainant.
Amar Dutt, J.
Briefly stated, the facts of the prosecution case are that on 28.2.1991 FIR No.56 was got registered in Police Station, Bawal, District Rewari by Maha Singh, one of the five sons of Sheo Chand, to the effect that about three years ago, a dispute had taken place between Har Dhayan son of Deep Chand on one side and he and his four brothers, namely, Subh Ram, Pohap Singh, Puran Singh and Sumer Singh about the alignment of a Dhol, which separate their agricultural fields. After demarcation of the Dhol was got made, stones fixing the location thereof had been laid. In spite of this, Har Dhayan and his sons harboured a grudge and on 27.2.1991 at about 4.00 P.M. Har Dhayan, his sons Chet Ram, Hans Ram, Jagdish and Satbir son of Badlu had passed a tractor over the Dhol. As a result thereof, the gram crop sown in the land by the side of the Dhol had got damaged. On 28.2.1991 in the morning, Sheo Chand had gone to the house of Har Dhayan to lodge a protest. When Sheo Chand had gone to lodge his protest, he was rebuked by Har Dhayan and his sons, who asserted that they would continue doing so even in future. At 9.00 A.M. Sheo Chand and Subh Ram had gone to the fields to assess the damage caused to the ****
crop and at that time Maha Singh was cutting the mustard crop in the nearby field. Khem Ram son of Neki Ram also resident of village Shah Pur was preparing thrashing floor for the mustard crop. In the meantime, Har Dhayan, his son Satbir, who were carrying lathis, and his son Hans Ram, who was carrying Pharsi, Chet Ram and Jagdish, who were carrying Jailis alighted from the tractor and rushed at the place where Subh Ram and Sheo Chand were standing. Within their sight, Hans Ram gave two pharsi blows in quick succession on the head of Sheo Chand. As a result thereof, Sheo Chand had fell down and while he was lying fallen down, Hans Ram gave another pharsi blow on the head of Sheo Chand. Thereafter, Chet Ram and Satbir gave lathi blows to Subh Ram, which hit him on his right and left hands from shoulder upto the dorsum. As a result thereof, Subh Ram also fell down. While he was lying on the ground, Hans Ram had given three blows with pharsi on the head of Subh Ram and Chet Ram and Jagdish had given blows with the Jailis on the right and left feet of Subh Ram.
Thereafter, Har Dhayan and Satbir had given lathi blows to Sheo Chand while Chet Ram and Jagdish continued giving blows with Jaili to Subh Ram and Sheo Chand. When Khem Ram and Maha Singh tried to intervene, Hans Ram held out threat that if anybody dare to come close, he too would ****
be done to death. The result was that Maha Singh and Khem Ram had started raising alarms, on hearing which, Rohtas s/o Har Nand, who was cutting Sarson crop came running to the spot. On seeing him, assailants sped away towards the village on the tractor. While doing so, they took their weapons along with them.
After this Rohtas brought a tractor belonging to Ram Jiwan son of Neki Ram. Puran Singh and Maha Singh removed the injured to the Government Hospital, Bawal. The injured were given first aid and referred to the Civil Hospital, Rewari. Puran Singh and Maha Singh had then brought Subh Ram and Sheo Chand to Civil Hospital, Rewari where soon after his admission, Sheo Chand succumbed to his injuries.
On receipt of a ruqqa from Community Health Centre, Bawal indicating that Subh Ram and Sheo Chand, who had been brought in an injured condition had been referred to Civil Hospital, Rewari, SI Karan Singh, S.H.O., Police Station, Bawal reached Rewari and before him Maha Singh gave a statement incorporating the details of the occurrence, which was completed at 3.30 P.M. on 28.2.1992 and forwarded to the Police Station, Bawal where FIR Ex.PH was registered under Sections 148/149/302/324/323/506 IPC. SI Karan Singh PW15 completed the ****
inquest proceedings and forwarded the dead body for getting the post- mortem conducted on the body of Sheo Chand. He himself went to the spot and taken into possession the blood stained earth through recovery memos Ex.PE and Ex.PF, searched for the accused and found tractor No.RHD 2329 standing in the Nohra of Har Dhayan and took the same into possession vide recovery memo Ex. PG. He returned to the Police Station and deposited the case property with the Moharrir Head Constable. In the meantime, Constable Pehlad Singh handed over the clothes of the deceased to the Investigating Officer, which had been entrusted to him by the Doctor and these were taken into possession through recovery memo Ex.PEE. On 3.3.1991 he arrested Hans Ram, Har Dhayan, Jagdish and Satbir from Bus Stand, Shahpur. He interrogated Har Dhayan in the presence of Surjan and Om Singh. In their presence the accused made a disclosure statement regarding his having kept concealed a lathi under a trunk in his room.
Similar disclosure statements were made by Hans Ram about his having kept concealed one Kulhari over the tand (wooden shelf) inside the baithak, Jagdish about his having kept concealed a Jaili under the husk in his Nohra and Satbir about his having kept concealed a lathi in the firewood on the Southern side wall of the school. Separate disclosure statements Ex.PO, ****
Ex.PQ, Ex.PR and Ex.PS were recorded. Pursuant thereto, the accused got the discoveries effected and the weapons were taken into possession through recovery memos Ex.PO/1, Ex.PQ/1, Ex.PR/1 and Ex.PS/1.
After completion of the investigation, during the course whereof, Investigating Officer had found Chet Ram as innocent showing him in column No.2, he filed a challan before the Illaqa Magistrate, who in turn committed the same to the Court of Sessions as the offence disclosed therein was exclusively triable by that Court.
On going through the papers sent up with the challan, on 20.7.1991 the Additional Sessions Judge, Rewari had framed charge against the appellants under Sections 302/307/324/323 read with Section 34 IPC and a separate charge had framed against appellant Hans Ram under Section 506 IPC. When the appellants pleaded not guilty to the charge, the prosecution was called upon to lead its evidence.
To bring home the charge, the prosecution examined Subh Ram as PW1 and after his statement had been recorded, the prosecution moved an application for summoning Chet Ram, which was allowed. After Chet Ram put in appearance, fresh charge was framed against all the accused under Sections 302/307/324/323 read with Section 149 IPC and a separate ****
fresh charge was framed against accused Hans Ram under Section 506 IPC on 26.9.1991 to which they pleaded not guilty.
To bring home the charge, the prosecution examined Dr.Chander Bhan as PW1, Dr.G.P.Aggarwal as PW2, Attar Singh as PW3, Dr.Anil Yadav as PW4, Dr.S.B.Gandhi as PW5, Ram Niwas as PW6, Naresh Kumar Patwari as PW7, Khem Ram as PW8, Maha Singh as PW9, Jaswant as PW10, Inder Singh, Tehsildar as PW11, Surjan as PW12, Head Constable Khursid Ahmad as PW13, Dr.R.Leekha as PW14, and SI Karan Singh as PW16.
It would not be out of place to mention here that Subh Ram's statement could not be recorded for the second time as he had died before the trial was re-commenced after arraying Chet Ram as accused.
When incriminating circumstances appearing in the prosecution case against them during recording of statements of the accused under Section 313 Cr.P.C. were put to the appellants, they denied all of them and claimed that they were falsely implicated on account of party faction in the village.
In defence, appellants examined Pardeep Kumar as DW1, Ram Narain as DW2, Ram Kishan, Election Kanungo as DW3 and Jaswant ****
Singh, Record Keeper as DW4.
After hearing the arguments, the trial Court came to the conclusion that prosecution had been able to prove its case against Har Dhayan, Hans Ram and Jagdish and as such while acquitting Chet Ram and Satbir of the charge framed against them, convicted appellants Har Dhayan, Hans Ram and Jagdish under Sections 302/307 read with Section 34 IPC and sentenced them to undergo imprisonment for life under Section 302 IPC and to pay a fine of Rs.3000/- each. In default thereof, they were ordered to undergo further R.I. for six months. Appellants were also sentenced to undergo R.I. for 10 years under Section 307 IPC and to pay a fine of Rs.1000/- each. In default thereof, they were ordered to undergo further R.I. for three months. Hence, Har Dhayan, Hans Ram and Jagdish have filed Criminal Appeal No.80-DB of 1993 while the State of Haryana being dis-satisfied with the acquittal of Chet Ram and Satbir had filed Criminal Appeal No.304-DBA of 1993 and complainant had filed Criminal Revision No.621 of 1993.
On 31.10.1995 Criminal Appeal No.80-DB of 1993, Criminal Appeal No.304-DBA of 1993 and Criminal Revision No.621 of 1993 were heard together by a Division Bench of this Court, which had passed the ****
"Mr.Varinder Singh, learned Deputy Advocate General, appearing in support of the State appeal has however urged that acquittal of Chet Ram and Satbir too was without justification and they ought to have been convicted on the basis of the evidence that had been adduced by the parties. We have gone through the reasoning adopted by the trial Court very carefully and find that no fault can be found with the same; more so in an appeal against acquittal as the benefit that accrues to the accused should not be taken away unless the judgment impugned is palpably unsupportable on the evidence.
We find that this is not the case in the matter before us in the State appeal.
In the light of the discussion rendered above, both the appeals as also Criminal Revision no.621 of 1993 are dismissed."
Hans Ram and Jagdish went up in appeal by Special Leave through Criminal Appeal No.205 of 1997 against the judgment dated 31.10.1995 in the Hon'ble Supreme Court and Hon'ble Supreme Court on ****
15.9.1998 had passed the following order:- "Hans Ram and Jagdish, the two surviving appellants, were tried for and convicted of the offences under Sections 302 and 307 read with Section 34 of the I.P.C. As the appeal preferred by them was dismissed by the High Court they have filed the instant appeal after obtaining special leave.
On perusal of the impugned judgment, we find that while dismissing the appeal, the High Court did not detail nor discuss the material evidence adduced during trial, which as the Court of appeal it was required to do. On this score alone we allow this appeal, set aside the impugned judgment of the High Court and remand the matter to it for fresh disposal of the appeal filed by the appellants in accordance with law. Since both the appellants are in jail we request the High Court to dispose of the appeal as expeditiously as possible preferably within a period of three months from the date of the communication of this order. If due to any unavoidable circumstances, the appeal cannot be disposed of within the stipulated period the appellants may prefer an application for ****
bail and if any such application is filed the High Court will consider the same on its merits."
On behalf of the State, it has been urged that as a result of the order dated 15.9.1998 passed by the Apex Court, Criminal Appeal No.304- DBA of 1993 would be deemed to have been revived as judgment dated 31.10.1995 passed by a Division Bench of this High Court had been set aside by the Apex Court and sent papers for seeking a clarification whether the order dated 15.9.1998 covers Criminal Appeal No.304-DBA of 1993 also. We had been postponing the hearing of the matters in order to enable the State of Haryana to seek clarification in this regard but the State of Haryana finally showed its reluctance to move in the matter.
We have heard Mr.Vinod Ghai, learned counsel appearing on behalf of the appellants, Mr.B.S.Rana, learned Deputy Advocate General, Haryana and Mr.T.P.S.Mann, learned counsel appearing on behalf of the complainant.
On behalf of the appellants, it was submitted that with regard to incident which was alleged to have taken place at 9.00 A.M. at Shahpur, statement of Maha Singh, which formed the basis of First Information Report was recorded only at 3.30 P.M. The delay in recording the FIR has ****
not been explained. There was no reason why the version could not have been pen down by 10.00 A.M. in the Community Health Centre, Bawal itself especially when the distance between the Community Health Centre, Bawal and Police Station, Bawal is only ½ Kilometer. In stead of doing that patient was referred to the Civil Hospital, Rewari with a view to explain the delay in the formulation of prosecution version and introduced Maha Singh and Khem Ram as witnesses. It is on the basis of this lapse that learned counsel for the appellants asserted that effort had been made by the prosecution to withhold the genesis of the occurrence and, therefore, there was no reason why other accused should not have been acquitted like Satbir and Chet Ram. It was also submitted that death in this case is clearly attributed to injury No.12 on the person of Sheo Chand for which none of the appellants can be held responsible. In these circumstances, the case maximum would fall under Section 304 IPC and, therefore, in view of the fact that the appellants had already undergone 8-1/2 years of their substantive sentence, sentences imposed upon the appellants may be modified in such a manner that period already served by the appellants be treated as sufficient to meet the ends of justice.
On behalf of the State, it was submitted that from the record it ****
is evident that ruqqa was sent immediately to the Police Station informing the Investigating Officer of the arrival of Sheo Chand and Subh Ram in an injured condition and since it was necessary to make an attempt to save the lives of the injured, Dr.Chander Bhan had immediately referred the injured for treatment to the Civil Hospital, Rewari. In these circumstances, there was no delay in lodging of the FIR.
We have carefully considered the rival submissions made by learned counsel for the parties and have gone through the record with their assistance.
The incident in the present case evidently took place on 28.2.1991. In the FIR time of the occurrence is given as 9.00 A.M.
Dr.Chander Bhan PW1 forwarded the intimation of the arrival of Subh Ram and Sheo Chand in an injured condition in the company of Maha Singh and Puran Singh sons of Sheo Chand to the S.H.O., Police Station, Bawal through note Ex.PA. This part of the statement of Dr.Chander Bhan PW1 has not been assailed nor had any effort been made to challenge the correctness of the contents thereof with regard to the names of the persons who had accompanied the injured. Both the injured were immediately referred to the Civil Hospital, Rewari where Dr. R.Leekha PW14 examined ****
Subh Ram and found 23 injuries on his person. Sheo Chand, however, did not survive due to the effect of the injuries and he died on arrival at the General Hospital, Rewari. Dr.G.P.Aggarwal, PW2 at the time of post- mortem examination found 16 injuries on the body of Sheo Chand. In view of this, we have no difficulty in coming to the conclusion that the objection taken by the appellants' counsel with regard to delay in lodging the FIR being traceable to the desire on the part of Investigating Agency to introduce Maha Singh as a witness has to be rejected. On going through the statement of Maha Singh, we find that it is not disputed that army man had come home on annual leave which assertion, if wrong, could have been challenged on the basis of documentary evidence. The fact that dispute existed between the parties about location of Dhol too is not seriously controverted in view of the document Ex.D1, which talks of a prior incident in which the parties had confronted amongst each other. Two witnesses, namely, Khem Ram and Maha Singh have been examined to prove the incident. The detail of how the incident took place as unfolded in their testimonies is supported by the medical evidence, which is available in the statement of Dr.Chander Bhan, PW2. The trial Court had clearly accepted the prosecution version and come to the conclusion that participation of all ****
the appellants except Satbir and Chet Ram was proved beyond reasonable doubt. This conclusion is not being seriously challenged before us and the main thrust of the arguments apparently is that their intention to kill cannot be inferred from the manner in which the incident took place. As already indicated, the deceased had 16 injuries on his person and as a result of these injuries, Dr.G.P.Aggarwal PW2 opined as under:- "Fracture of 7,8,9,10,11 ribs on the right side of chest, right plev canty contained massive blood. A tear of 2" X 1" over the posterior lateral part of the right liver Heart:- both chamber contained minimum blood. Liver:- a tear of 2 X 3" over the posterior lateral part of the liver.
In our opinion the cause of death of the deceased was haemorrhage and shock due to the injuries sustained by deceased cumulatively which were anti-mortem in nature and sufficient cause of death. My medical report in this behalf is Ex. P2. The duration between injury and death was 1 to 6 hours while death and PMR 6 to 36 hours. I handed over to the police well stitched dead body of the deceased with a copy of PMR a sealed pulenda of clothes wearing 7 seals. Specimen ****
seal impression of the seal use, police inquest papers numbering 1 to 12. The post-mortem report is Ex. PB was prepared in the same process with the help of a carbon. The seat of injuries had been shown by us in diagram Ex. PB/1 and the dead body was identified by Maha Singh and Puran Singh.
In cross examination, Dr.G.P.Aggarwal gave the following opinion:-
"I have not brought today with me the original post mortem report. Though we have mentioned that the injuries cumulatively were sufficient to cause the death but it does not mean that any one injury or more were not sufficient to cause of death. Particularly injury No.12 could be alone sufficient to cause death. Rest of the injury could not be individually sufficient to cause of death. The stomach contained gestic with full particularly. The deceased might have taken his last meal within six hours of his death. It could be between one hour to five hours even. A lathi blow when given lengthwise can cause of linier wound on the skull a laut portion but none of other part of the body. On stomach like portion the width would be ****
enough. The width of lathi blow injuries depends upon the force on a muscle area. The injuries on the skull area bit close to each other. But no other injury on the body are close to each other."
From the medical opinion, it is evident that cause of death in this case was as a result of injuries cumulatively on the person of Sheo Chand. These injuries were caused by the appellants, who were charged under Sections 302/307/324/323 read with Section 149 IPC but as Satbir and Chet Ram had been acquitted, therefore, the trial Court had rightly convicted them for sharing the common intention of causing injuries, which were found on the person of deceased Sheo Chand and injured Subh Ram.
The view taken by the trial Court, consequently, cannot be faulted with.
With regard to Criminal Appeal No.304-DBA of 1993, we are faced with a peculiar situation where the State of Haryana chose not to go up in appeal against the judgment dated 31.10.1995 dismissing the same.
While there is no doubt that the Apex Court had set aside the judgment but the same was done only in the appeal by Special Leave (Criminal Appeal No.205 of 1997) filed by Hans Ram and Jagdish, it would not be appropriate for us to read into the order of the Apex Court intention to ****
interfere with that part of the judgment of this Court, which dismissed the Criminal Appeal No.304-DBA of 1993 and Criminal Revision No.621 of 1993.
For the reasons stated above, the Criminal Appeal No.80-DB of 1993 is dismissed.
February 8,2006 (Baldev Singh)
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