High Court of Punjab and Haryana, Chandigarh
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Manga son of Makkar v. State of Haryana - CRA-D-439-DB-2000  RD-P&H 5474 (10 August 2006)
Manga son of Makkar APPELLANT
State of Haryana RESPONDENT
CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL
HON'BLE MR.JUSTICE BALDEV SINGH
Present:- Mrs.Baljit Mann, Advocate for the appellants.
Mr.Kulvir Narwal, Additional A.G. Haryana.
MEHTAB S.GILL, J.
We will be deciding Criminal Appeal No.439-DB of 2000 and Criminal Appeal No.404-DB of 2000 by this common judgment, as they arise out of the same judgment/order dated 24.8.2000/26.8.2000 of the Additional Sessions Judge, Karnal, whereby he convicted Manga son of Makkar, Hari Dutt son of Telu Ram, Harphul son of Dhani Ram and Ram Mehar son of Siri Ram under Sections 302/323/324/325 read with Sections 148/149 I.P.C. and sentenced them to undergo imprisonment for life under Section 302 I.P.C. and various terms of sentences under different sections of the I.P.C. During the course of this appeal, Hari Dutt son of Telu Ram died. Appeal against Hari Dutt son of Telu Ram has thus abated.
The prosecution case is unfolded by the statement Ex.PQ given by Jagdish to ASI Bharat Singh at the Community Health Centre, Assandh on 10.1.1993. Jagdish stated that he is a resident of Village Salwan. His house is situated on the Kabulpur Road, Salwan. There are manure pits on the side of the road and thereafter is the Phirni (outer road). Houses of Hari Dutt and Dhani Ram sons of Telu Ram are situated along the Phirni. They have occupied some portions of the Phirni. Dhani Ram etc. have filed a civil suit against Jagdish and others which was pending in the Civil Court, Karnal, regarding the non-existence of manure pits between the Pucca road and Phirni. This case was decided in favour of Jagdish. Demarcation of the manure pits was done through the Halqa Patwari. On 10.1.1993, brother of the complainant Hari Singh, brought one cart load of earth soil for the manure pits. At about 12.30 p.m. Jagdish, his father Manphool, Bhag Singh son of Kabool Singh and Pawan Singh son of Bhag Singh all residents of Salwan along with Hari Singh started unloading the earth soil. At that time, Hari Dutt son of Telu Ram, Dhani Ram son of Telu Ram, Harphul son of Dhani Ram, Manga son of Makkar and Ram Mehar son of Siri Ram armed with lathis and Gandasis came there and started hurling abuses on the complainant party. They said that the manure pits are not their's and they will not allow them to unload the earth soil. Thereafter Dhani Ram gave a Gandasi blow on the head of Manphool, Manga also gave a Gandasi blow on the head of Manphool.
Manphool fell down and while he was lying, Hari Dutt and Ram Mehar inflicted Lathi blows on him indiscriminately. Dhani Ram thereafter gave a Gandasi blow on the head of Jagdish. Manga gave a Gandasi blow from the reverse side on the right side of the back of Jagdish. Ram Mehar gave one lathi blow on the left side of Jagdish's waist and another lathi blow on his left thigh. Hari Dutt gave a lathi blow to Jagdish on his right arm. Bhag Singh, Pawan Singh and Hari Singh tried to separate the accused and Manphool. Thereafter Hari Dutt and others caused injuries to Bhag Singh and Pawan Singh with their respective weapons. In the meantime, Som Dutt came and he along with Hari Singh rescued the complainant party. In the fight Manphool, Bhag Singh, Pawan Singh and complainant Jagdish were injured. They were taken to the Government Hospital, Assandh in a Rehra for treatment. On the basis of this statement, F.I.R. Ex.PQ/1 was recorded on 10.1.1993 at 6.15 p.m. at Police Station Assandh. Special report reached the J.M.I.C., Karnal on the next day i.e. on 11.1.1993, at 7 a.m.
The prosecution to prove its case, brought into the witness-box Dr.Mithlesh Rani PW-1, Dr.M.K.Rana PW-2, Dr.Shashi Prabha PW-3, ASI Ram Parkash PW-4, Manohar Lal Draftsman PW-5, Constable Ramesh Kumar PW-6, HC Mam Raj PW-7, Bhupinder Kumar Ahlmad PW-8, Jagdish PW-9, Pawan Kumar PW-10, ASI Bharat Singh PW-11 and Inspector Rohtash Singh PW-12.
Learned counsel for the appellants has argued, that there is a delay in sending of the special report. F.I.R. Ex.PQ/1 is ante-timed. Occurrence had taken place on 10.1.1993 at 12.30 p.m. Deceased Manphool was admitted at 2.30 p.m. in C.H.C., Assandh. He was declared fit to make a statement at 5 p.m.
Special report reached the J.M.I.C., Karnal on 11.1.1993 at 7 a.m. There is an unexplained delay of 18 hours. Inspector Rohtash Singh PW-12 in his statement before the Court has stated that a Gypsy was available in the Police Station. It has also come in the evidence of Constable Ramesh Kumar PW-6 who took the special report that there was a motor-cycle available in the police station. The Investigating Officer, was all along, wright from the time he came to know about the occurrence till the recording of the F.I.R., trying to help the complainant party.
In F.I.R. Ex.PQ/1 the words "We also gave injuries to the appellants", which is mark "B to B" has been added at a later stage. This has been done, so that the injuries on the person of the appellant party i.e. Harphool, Dhani Ram, Panpori, Omi could be explained. Though the Investigating Officer knew that the appellant party also suffered injuries, but he did not make any effort to take them to the hospital and have them examined also. The total injuries on the person of the appellants are 15 in number, clearly showing that it was the complainant party who were the aggressors.
The medical evidence does not corroborate the ocular account.
Dr.Shashi Prabha PW-3 has stated, that the cause of death of Manphool was due to injuries to the brain. Dr.M.K.Rana PW-2 has stated that injury No.3 could be caused due to fall on a hard/solid surface. If injury No.3 was caused due to falling on a solid surface, appellant cannot be held liable for the death of Manphool. It falsifies the case of the prosecution. Further, it has come in evidence and in F.I.R. Ex.PQ/1 and in the statements of both the eye-witnesses Jagdish PW-9 and Pawan Kumar PW-10 that Ram Mehar and Hari Dutt gave Dang blows on the person of the deceased indiscriminately, but in the post- mortem report, there is only one Dang injury i.e. injury No.3. Both these witnesses are implanted.
Learned counsel for the appellants has further argued that as per the plaint, Ex.DJ and order Ex.DL, the parties were directed to maintain status quo, regarding the possession of manure pits, which was the bone of contention between the parties. It is clear from the civil suit, which was decreed in favour of the appellants, that it were the appellants who were in possession of the manure pits. As per the site plan Ex.PR prepared by Manohar Lal Draftsman PW-5, manure pits are not in possession of the complainant party. The Investigating Officer in his statement has admitted that the house of the complainant party is on the Phirni, and the manure pits are not next to the houses of the complainant party, but were next to the house of appellant Dhani Ram.
Learned counsel for the State has argued that there is no delay in lodging of the F.I.R. Ex.PQ/1. The distance between Police Station Assandh and Karnal is 40 kms. By the time the special report was handed over to Constable Ramesh Kumar PW-6 at 9 p.m., it had become dark. The road to Karnal from Police Station Assandh is a link road. He could not get any vehicle to reach Karnal. Constable Ramesh Kumar PW-6 left for Karnal on 11.1.1993, early in the morning and handed over the special report to the J.M.I.C., Karnal at 7 a.m.
F.I.R. is not ante-timed. The line mark B to B has not been added later on, but it was there at the very outset, which is clear from the F.I.R. Ex.PQ/1. The difference in line and words is the same. There is continuity in writing of the F.I.R. Ex.PQ/1.
Demarcation was done by one Som Nath Kanungo who was appointed as a Commissioner and in his report Ex.DH has stated that appellant Manga wanted to take illegal possession of these manure pits. Demarcation was done after informing both the parties and in the presence of both the parties. No objection was raised at the spot qua the demarcation. Both the parties were satisfied.
The medical evidence corroborates the ocular account. The tesitmony of both Jagdish PW-9 and Pawan Kumar PW-10 is cogent and convincing, both being injured eye-witnesses. Their testimony could not be demolished by the defence when they were cross-examined.
We have heard the learned counsel for the parties and perused the record with their assistance.
Both appellants and the prosecution witnesses have built up a case, that though the occurrence had taken place, but the opposite party were the aggressors.
The bone of contention between the parties were two manure pits which the appellants claim to be theirs, while the complainant party also claimed that the said piece of land belonged to them. Appellants Dhani Ram and Hari Dutt along with some others filed a suit Ex.DI in the Court of the Sub Judge Ist Class, Karnal, praying for the relief of a permanent injunction, be granted in their favour.
The Court of Sub Judge Ist Class, Karnal, passed a status quo order Ex.DJ and the parties were directed to maintain status quo, till further orders regarding the existing condition of the suit property. This order is dated 31.3.1989. The suit was finally decided on 2.12.1993. Unfortunately on 10.1.1993, the present occurrence took place. At 12.30 p.m. appellants attacked deceased Manphool, Jagdish PW-9 and Pawan Kumar PW-10 after deceased Manphool had unloaded a cart of earth soil. Injuries were inflicted on Manphool, Jagdish PW-9 and Pawan Kumar PW-10. The complainant party in self defence also inflicted injuries on Harphool, Dhani Ram, Panpori, Omi. It is the case of the defence also that in this occurrence injuries were inflicted on some of them, by the complainant party.
Dr.Mithlesh Rani PW-1 has stated, that on 10.1.1993 at 7.50 p.m.
she sent Ruqa Ex.PA to the Incharge of Police Post Government Hospital, Karnal, through a special messenger that Manphool was brought dead by his son Hari Singh at 7.50 p.m. Dr.M.K.Rana PW-2 examined Jagdish PW-9 on 10.1.1993 at 5 p.m. Though Jagdish PW-9 was examined at 5 p.m., but it has been stated by Dr.M.K.Rana in his statement before the Court, that he arrived in the hospital at 2.30 p.m. Jagdish PW-9 had six injuries on his person, out of which injury No.1 was with a sharp-edged weapon and the remaining were with blunt weapon. Injury No.4 was declared grievous after the X-Ray report was received at 5.30 p.m. He examined Manphool and found three injuries on his person. Injuries 1 and 2 were caused with sharp edged weapon, whereas injury No.3 was caused by a blunt weapon. He was referred to Civil Hospital, Karnal. Bhag Singh son of Kabool Singh was examined on the same day i.e. 10.1.1993 at 6 p.m. He had 4 injuries on has person. Bhag Singh had also arrived at 2.30 p.m. on the same day. Pawan Kumar PW-10 was also examined on the same day, and he had also arrived in the hospital at 2.30 p.m. Ruqa Ex.PF was sent to the S.H.O., Police Station Assandh at 2.45 p.m. on 10.1.1993. The police moved an application Ex.PG as to whether Manphool, Jagdish, Bhag Singh and Pawan Kumar were fit to make statements. Vide opinion Ex.PG/1, they were declared unfit to make statement by Dr.M.K.Rana PW-2. Another application was made by the police at 5 p.m. on the same day and except for Manphool, all others were declared fit to make statement vide opinion Ex.PG/2. It is clear from the testimony of this witness that all the injured reached the Government Hospital Assandh at 2.30 p.m. i.e. two hours after the occurrence. The first and foremost worry of the injured was to have themselves medically treated from the doctor. This witness has also opined that Gandasas Exs.P1 and P2 could cause the injuries on the person of Manphool and Jagdish.
Coming to the injuries on the person of the appellants, Dr.M.K.Rana PW-2 has opined that on 11.1.1993, he examined Panpori, Omi, Dhani Ram and Harphool at 1.30 a.m. i.e. after a gap of 12 hours. There were 6 injuries on the person of Panpori. Omi wife of appellant Dhani Ram was examined at 2.30 a.m.
and there were 4 injuries on her person. Injury No.1 which is an incised wound on the left parietal region of the head, clotted blood was present. On the same day appellant Dhani Ram was examined at 2.45 a.m., there were 7 injuries on his person. Injury No.1 was a lacerated wound on the middle finger of the right hand, clotted blood was present. Injury No.3 was an incised wound on the parietal region and this also had clotted blood. Appellant Harphool son of Dhani Ram was examined on the same day i.e. 11.1.1993 at 3.15 a.m. Four injuries were found on his person.
Injuries on the person of the appellant party show that a few of their injuries, had blood oozing out. No explanation has come from the side of the appellants as to why for 12 hours they did not go to the hospital, or to the police, or to any private medical practitioner to have their wounds taken care off. The only explanation coming is in the statement of appellant Harphool given under Section 313 Cr.P.C. wherein he has stated that they did not come out of their houses, due to fear from the complainant party. This explanation is not plausible and believable. Occurrence had taken place at 12.30 p.m. It was broad day light.
Both the parties were agitating qua the possession of manure pits. If it had been night time, it could be believed that the appellants were afraid to come out of their houses, but in this case, they had ample time during the day to go to the hospital, or the police or some private medical practitioner. In fact, the appellants were all this time planning and building up a defence for themselves.
As per the discussion above, we are of the view that there was no delay in lodging of the F.I.R. Occurrence had taken place on 10.1.1993 at 12.30 p.m. and complainant party reached the hospital at 2.30 p.m. Dr.M.K.Rana PW-2 declared Jagdish PW-9 and Pawan Kumar PW-10 fit to make a statement at 5 p.m. F.I.R. Ex.PQ/1 came into existence at 6.15 p.m. and the special report reached the J.M.I.C., Karnal on 11.1.1993 at 7 a.m. Constable Ramesh Kumar PW-6 has given an explanation that due to terrorism, trucks did not ply in the night on the roads from Kaithal, Jind, Panipat, Saffidon and Pundri. It did not occur to him either to use the Jeep of the S.H.O., or the motor cycle. He got a truck at 5 a.m. in the morning and thereafter reached Karnal and handed over the special report to the J.M.I.C. at 7 a.m. Even if there is some delay in lodging of the F.I.R., it will make no difference to the case of the prosecution, as appellant Harphool in his statement under Section 313 Cr.P.C. has stated that it was Jagdish PW-9 and Manphool who came armed and started causing injuries to Dhani Ram, on hearing the alarm, he along with Omi, Panpori wife of Hari Dutt came to the spot and tried to rescue Dhani Ram. In the process, injuries were inflicted to Jagdish PW-9 and deceased Manphool in self defence, Bhag Singh and Pawan Kumar PW-10 also joined Jagdish PW-9 in inflicting the injuries on Dhani Ram. Bhag Singh and Pawan Kumar PW-10 also received injuries. From this statement, it is clear that a fight took place between the complainant party and the appellants and what is to be seen is as to who were the aggressors.
Manohar Lal Draftsman PW-5 in his report Ex.PR which has gone unchallenged, has shown that the earth and soil brought by the complainant party was thrown next to their own houses. Point A is the place where the earth and soil was taken off. This is within the house of Manphool and some part is on the Phirni. Point B is the place from where blood was picked up by the Investigating Officer. No pits have been shown near the house of Manphool deceased. The pits were next to the houses of appellants Manga and Ram Kumar which are at quite a distance. The statement of this witness and map Ex.PR, has gone unchallenged by the defence.
The argument put forward by the learned counsel for the appellants that the Investigating Officer was trying to help the complainant party right from the beginning, does not cut much ice. Both the injured eye-witnesses Jagdish PW-9 and Pawan Kumar PW-10 though put to a lengthy cross-examination, stood by their version and have corroborated each other inter se and also F.I.R.
The medical evidence, as discussed above, corroborates the ocular account.
We have no hesitation in coming to the conclusion that it were the appellants who were the aggressors. They were the ones who first attacked the complainant party and resultantly received some injuries also from the side of the complainant party in self defence.
We do not find any infirmity in the judgment of the trial Court.
Both the appeals are dismissed.
( MEHTAB S.GILL )
( BALDEV SINGH )
August 28, 2006 JUDGE
WHETHER TO BE REFERRED TO REPORTER? YES/NO
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