High Court of Punjab and Haryana, Chandigarh
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Ram Chander v. State of Haryana - CRA-D-787-db-2002  RD-P&H 3057 (11 May 2006)
Criminal Appeal No. 787-DB of 2002
Date of decision: 5.5.2006
Ram Chander ..Appellant
State of Haryana ...Respondent
Criminal Appeal No. 851-DB of 2002
Nanu Ram and others ...Appellants
State of Haryana ...Respondent
Criminal Appeal No. 860-DB of 2002
Bhoj Ram ..Appellant
State of Haryana ...Respondent
CORAM: HON'BLE MR.JUSTICE AMAR DUTT
HON'BLE MR.JUSTICE A.N.JINDAL
Present: None for the appellant in Criminal Appeal No.787-DB of 2002 None for appellants No. 1 to 3 in Criminal Appeal No.851-DB of 2002 Mr.Surinder Deswal, Advocate, for appellant Nos.4 and 5 in Criminal Appeal No.851-DB of 2002.
Mr.S.S.Dinarpur, Advocate for the appellant in Criminal Appeal No.860-DB of 2002.
Mr.B.S.Rana, Senior Deputy Advocate General, Haryana.
Amar Dutt, J.
Ram Chander and six others have filed the present appeals to challenge the conviction and sentence imposed upon them by the Additional Sessions Judge, Ambala ****
Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that on 7.12.1999 appellants Ram Chander, Nanu Ram, Gore Lal, Lalu Ram, Jamna Parshad, Kiran Pal and Bhoj Ram along with complainant Santosh Kumar, were working as labourers at Aggarwal Brick Kiln, Baragarh. At about 6.30 P.M. on that day Santosh Kumar and members of his family had left the Brick Kiln for boarding the train from Ambala for their native village Dhara Shiv, District Raipur (Madhya Pradesh). The complainant and his family was followed by appellants Ram Chander and Jamna Parshad to the Railway Station, where he was told that an evil soul had effected the wife of Shoku Lal and, therefore, Santosh Kumar was requested to accompany them back to the Brick Kiln. This was presumably on account of the fact that his wife Radhika Bai had been claiming in the residential area of Brick Kiln that she could get rid of evil soul that took possession of any human being. In response to the request, Santosh Kumar and his wife Radhika Bai and children returned to the Brick Kiln where on arrival the appellants said that a lady expert in evil soul had come and she should be done to death. Saying this Nanu Ram armed with a lathi, Kiran Pal armed with a danda, Jamna Parsad armed with a Phatti and Bhoj Ram armed with Phatti started giving ruthless beatings to Radhika Bai while Gore Lal caught hold the hairs of Radhika Bai. Lalu Ram and Jamna Parshad were asking other appellants to finish Radhika Bai and also gave slap and fists/kicks blows to her. Santosh Kumar cried for help and on hearing his shouts of Bachao Bachao, Nand Kumar and Dalu Ram reached the spot and rescued Radhika Bai, who fell ****
on the ground due to beatings given to her and succumbed to her injuries.
After Radhika Bai had been rescued from the clutches of the appellants, Santosh Kumar went to the office of Thekedar of Brick Kiln leaving his wife in the care of Nand Kumar and Dalu Ram. In the office Jai Parkash Munshi met him and both of them proceeded toward the Police Station, Shazadpur for lodging the report when on the way near Sugar Mill, they met a police party headed by ASI Ram Sarup PW8, who recorded the statement Ex. PF of Santosh Kumar and after making necessary endorsement forwarded the same to Police Station, Shazadpur and on its basis formal FIR Ex. PF/1 was recorded and he himself proceeded to place of occurrence and on reaching there completed the inquest papers and forwarded the dead- body of Radhika Bai for post-mortem examination. After this investigation was taken over by Sub Inspector Surjit Kumar PW11. He searched for the accused and arrested them from the fields adjoining the Aggarwal Brick Kiln. After their arrest SI Surjit Kumar, PW11 interrogated Nanu Ram, who made a disclosure statement Ex. PH, pursuant whereof he got discovered a Danda. He also interrogated Kiran Pal, who made a disclosure statement Ex.PI, pursuant whereof he too got discovered a danda. Interrogation of Bhoj Ram and Ram Chander led to discovery of a Phhatti each with which injuries have been caused to deceased. He got prepared a site plan showing the place from where recoveries had been effected.
On completion of the investigation, a challan was presented against the appellants before the Illaqa Magistrate, who committed the same to the Court of Sessions for trial as offences disclosed therein were exclusively triable by that Court.
On going through the papers sent up with the challan, the trial Court found that prima facie a case was made out against the appellants under Sections 148,302 read with section 149 IPC and, accordingly, framed the charge under those Sections and 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 Ishwar Chand as PW1, Ved Parkash as PW2, Dr.S.K.Singhal as PW3, Mahi Pal as PW4, Daya Kishan as PW5, Rajbir Singh as PW6, Jai Parkash as PW7, ASI Ram Sarup as PW8, Santosh Kumar as PW9, Nand Kumar as PW10 and Inspector Surjit Kumar as PW11.
After completion of the prosecution evidence when the incriminating circumstances appearing in the prosecution case, were put to the appellants, they denied all of them and asserted that they were innocent and had been falsely implicated in the case. They, however, chose not to lead any evidence in defence.
After hearing the arguments, the trial Court came to the conclusion that the prosecution has been able to prove its case against the accused beyond all reasonable doubts that on 7.12.1999 appellants while acting in pursuance of common object formed an unlawful assembly and caused fatal injuries to Radhika Bai, and accordingly, convicted them under Sections 148 and 302 read with Section 149 IPC and sentenced them to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.500/- each under Section 148 IPC. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for two months. The appellants were further sentenced to undergo imprisonment ****
for life and to pay a fine of Rs.2000/- each under Section 302 read with Section 149 IPC. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for eight months. Dissatisfied with the judgment appellant-Ram Chander had filed Criminal Appeal No.787- DB of 2002, appellants Nanu Ram, Gore Lal, Lalu Ram, Jamna Parshad and Kiran Pal had filed Criminal Appeal No.851-DB of 2002 and appellant Bhoj Ram had filed Criminal Appeal No.860-DB of 2002. We propose to dispose of all the three appeals by this judgment.
We have heard Mr.Surinder Deswal, learned counsel appearing on behalf of appellant Nos.4 and 5 in Criminal Appeal No.851-DB of 2002, Mr.S.S.Dinarpur, learned counsel appearing on behalf of the appellant in Criminal Appeal No.860-DB of 2002 and Mr.B.S.Rana, learned Senior Deputy Advocate General, Punjab.
On behalf of the appellants, our attention had been drawn to the testimony of PW 3 Dr.S.K.Singhal, Medical Officer, Civil Hospital, Nariangarh, who was the member of the Board, which performed the post- mortem on the dead-body of Radhika Bai. The Board has found five injuries on the person of Radhika Bai, which read as under:-
1. Deformity was present on the lower part of right fore-arm. Front of lower half of the right forearm was having contusion measuring 5" X 2". On exploration, both bones of the forearm were found fractured in lower one third.
2. There was a contusion bluish in colour 8 cm X 3 cm on front of right shoulder. On dissection, dark brown blood was present in subcutaneous tissue with fracture of upper end of ****
right scapula associated ligaments were torn.
3. There were multiple superficial abrasions of varying size on outer and frontal aspects of left upper limb with clotted blood. Whole of the upper limb was dark bluish in colour with extra vasation of dark blood in the subcutaneous tissue.
4. There were multiple contusions bluish in colour of varying sizes on the back of trunk.
5. There was a lacerated wound 2 cm X 1 cm x bone deep present on left parietal region 2 cm in front of parietal eminence. Clotted blood was present. There was an extra dural haemotoma over whole of the parietal lobe with underlying brain tissue compressed."
and had opined that cause of death in this case was "head injury which was antemortem in nature and sufficient to cause death in normal course of nature". After this our attention had been drawn to the fact that in cross examination, it has been brought out that "the head injury mentioned at Sr.
No.5 of the MMR Ex. PC, possibility of this injury being caused due to fall on hard surface can not be ruled out." It is on the basis of this evidence counsel for the appellants seek to urge that in the absence of any clarification being sought by the prosecution to highlight the possibility of death being a result of cumulative effect of all the injuries and/or the injury No.5 being a result of Danda blow, which could be attributed to one of the assailants, it was submitted that no inference can be drawn that all injuries had been caused to Radhika Bai by the appellants in pursuance of common object to kill her and, therefore, at best the appellants could be held to be ****
guilty under Section 326 IPC as injuries No.1 and 2 had resulted in breaking of continuity of the underlying bones and to that extent that judgment will have to be modified.
Mr.B.S.Rana, learned Senior Deputy Advocate General, Haryana is not able to deny the correctness of the factual premises on which the arguments is built. He, however, asserted that taking into consideration the fact that the appellants through their individual acts that were carried out by them in pursuance of the common object of the unlawful assembly had murdered Radhika Bai, therefore, they cannot be absolved of the responsibility of causing the death of Radhika Bai.
We have given our thoughtful consideration to the rival contentions and have perused the record with the assistance of learned counsel for the parties.
The incident brings into focus attempts by quacks claiming super natural powers of curing mental ailments which the illiterate masses of the sub-continent at times attribute to super natural powers. The failure to get immediate relief sometimes evokes retributive action against such person by the well-wishers of the patient. Even if what is stated by the witnesses was to be accepted as true, there is in the narration of events no explanation forth coming for injury No.5, which has been found to be the fatal injury suffered by Radhika Bai. The Public Prosecutor unfortunately has not risen to the occasion and failed in his duty to seek a clarification as to how injury no.5 could have been caused. There is not even a suggestion on the record that it was a result of blows given by danda which would have been traceable to injuries given by Nanu Ram and Kiran Pal, who ****
were wielding the dandas. This lapse has left a flaw in the prosecution case on account whereof it may not be possible for us to hold that common object of unlawful assembly was to kill Radhika Bai. The fact that Radhika Bai was brought back from Ambala Railway Station to the Brick Kiln shows that at the time when appellants requested her at the Railway Station to return to the Brick Kiln, the assembly did not have any common object of harming either husband or wife. It is apparent that something happened on the return to the Brick Kiln which possibly may be her inability to cure the lady who was supposed to be possessed by evil soul that precipitated the matter and culminated in the attack. It is on account of this lacuna that we find it impossible to come to the conclusion that common object of unlawful assembly was to kill Radhika Bai. For determining what exact was the common object of the unlawful assembly, we will have to return to four other injuries, which were caused on the person of deceased during the incident. These are fractures and according to the medical opinion could not be fatal. Therefore, on re-appraisal of the evidence in the light of afore- mentioned circumstance, we come to the conclusion that common object of the unlawful assembly could at best was to give thorough beatings to the deceased. The consequent fractures which were found on various parts of body on account of what was done by seven appellants would, in our opinion, at best fall under Section 325 IPC alone and appellants can be held guilty under Section 325 IPC.
On the question of sentence, we are of the considered view that as all appellants except Jamna Parshad, whose sentence had been suspended on 8.4.2005 have already undergone more than 6 years of detention of pre ****
and post conviction period, we feel that seven years rigorous imprisonment would meet ends of justice. Hence, the appellants are sentenced to undergo rigorous imprisonment for a period of seven years each and to pay fine Rs.1000/- each. In default of payment of fine, they are ordered to undergo further rigorous imprisonment for two months each.
Except for the above modification, all the appeal fail and are dismissed accordingly.
May 5,2006 (A.N.Jindal)
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