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DAYA KISHAN versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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Daya Kishan v. State of Haryana - CRA-D-277-DB-2004 [2006] RD-P&H 6656 (7 September 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. A. No.277-DB of 2004

Date of decision : 21-08-2006

Daya Kishan

... Appellant

versus

State of Haryana

... Respondent

Crl. A. No.152-DB of 2006

Raj Singh alias Raja

... Appellant

versus

State of Haryana

... Respondent

CORAM : HON'BLE MR. JUSTICE VIRENDER SINIGH
HON'BLE MR. JUSTICE A.N. JINDAL

Present : Mr. Ashit Malik, Advocate

for the appellant in Crl.A.No.277-DB of 2004.

Mr. Robin Dutt, Advocate

for the appellant in Crl.A.No.152-DB of 2006.

Mr. Sunil Katyal, DAG, Haryana

for the respondent.

JUDGMENT

A.N. JINDAL, J.

This judgment disposes of two Criminal Appeals No.277-DB of 2004 filed by the appellant-Daya Kishan and Criminal Appeal No.152-DB of 2006 filed by appellant-Raj Singh alias Raja.

Accused Daya Kishan, Raj Singh alias Raja, Ajmer, Krishan and Sat Narain alias Pohla were challaned for committing murder of Rajesh son of Balbir and causing injuries to Bhalle Ram and his son Sanjay, his daughters Kamlesh and Meena Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

and his wife Kishni, on 30.11.1998 in the area of village Jagsi. Initially all the five accused were charged for the offences under Sections 302/307/323/148/149 IPC and accused Sat Narain was further charged under Section 27 of the Arms Act but during trial the accused Sat Narain, Krishan and Ajmer absconded consequently, they were declared as Proclaimed Offenders. However, at the stage of defence, the accused Raja Singh alias raja also absconded. Therefore, trial Court was left to decide the fate of Daya Kishan accused. He was tried for the aforesaid offences and was convicted by the Sessions Judge, Sonipat vide judgment dated 19/21.1.2004 and was sentenced as under :- Daya Kishan

U/s 302/149 IPC : To undergo rigorous imprisonment for life and to pay fine of Rs.3000/-. In default of payment of fine to further undergo rigorous imprisonment for two years.

U/s 307/149 IPC : To undergo rigorous imprisonment for seven years and to pay fine of Rs.2000/-. In

default of payment of fine to further undergo rigorous imprisonment for one year.

U/s 323/149IPC : To undergo rigorous imprisonment for one year.

U/s 148 IPC : To undergo rigorous imprisonment for two years.

Later on accused Raj Singh alias Raja was also arrested.

Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

Therefore, he was provided an opportunity to lead defence evidence.

Ultimately he was convicted under Sections 148/302/307/323 read with Section 149 of IPC and was sentenced as under :- U/s 302/149 IPC : To undergo rigorous imprisonment for life and to pay fine of Rs.3000/-. In default of payment of fine to further undergo rigorous imprisonment for two years.

U/s 307/149 IPC : To undergo rigorous imprisonment for seven years and to pay fine of Rs.2000/-. In

default of payment of fine to further undergo rigorous imprisonment for one year.

U/s 323/149IPC : To undergo rigorous imprisonment for one year.

U/s 148 IPC : To undergo rigorous imprisonment for two years.

However, all the substantive sentences were ordered to run concurrently.

In nut-shell, the prosecution case in brief is that Bhalle Ram had constructed shops at bus stand of village Jagsi. In one of the shops there is a liquor vend. The shops were being run by his son Sanjay and nephew Rajesh (son of Balbir) whereas two other shops were lying vacant.

Some area of the plot behind the shops was lying vacant and was used for tethering the cattle. There was a civil suit pending between complainant Bhalle Ram and accused Daya Kishan regarding land pertaining to the shops for about six months prior to the occurrence. Despite the fact that Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

Panchayat had got settled the matter, Daya Kishan was bearing grudge against the complainant party.

On 30.11.1998, at about 7.00 PM, Sanjay and Rajesh were sitting at their shops, at that time Meena daughter of the complainant had come for tethering the cattle in the aforesaid vacant plot. Complainant Bhalle Ram, his daughter Kamlesh and wife Kishni were unloading Puraal (Paddy straw) from the cart. At that time, accused Kishan (son of Daya Kishan) made some purchases from Sanjay for which Sanjay demanded price,at this, Kishan accused threw the envelope containing the goods on the chest of Sanjay and remarked him in filthy language that he would be burnt after putting him in the Puraali. He also remarked that Sanjay was selling the goods at an exorbitant price. Thereafter, both Sanjay and Kishan exchanged hot words. Then Kishan ran away towards his house by remarking that he would teach him a lesson just then. After a short while, Kishan son of Daya Kishan, Ajmer, Raja sons of Lal Chand and Daya Kishan (whose houses are located behind the shops of the complainant) came armed with deadly weapons. Pohla alias Sat Naraian was armed with gun, Ajmer was armed with Jeli, Daya Kishan, Raja and Kishan were armed with lathies. They exhorted that they would not spare them. Thereafter, Pohla (Sat Naraian) fired at Rajesh (nephew of the complainant) from his gun. Consequently, Rajesh fell down. When Sanjay tried to catch hold of Pohla alias Sat Naraian, then he was also caused injuries on his chest by Pohla. In the meantime, complainant, his daughters Kamlesh and Meena and wife Kishni intervened and started rescuing the injured. Then, Daya Kishan, Ajmer and Kishan inflicted one lathi blow each on the right eye, Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

left elbow and left hand of the complainant respectively. They also caused injuries to the daughters and wife of the complainant. On hearing alarm, Ram Kishan and Hoshiara witnesses also came at the spot. At this, the accused left the place for their house with their respective weapons.

Consequently, the complainant, his daughters Kamlesh and Meena, his nephew Rajesh and son Sanjay were removed to Civil Hospital, Gohana in a vehicle arranged by Suresh and Satbir. The doctors at Gohana referred them to PGIMS, Rohtak where Rajesh was declared dead and other injured were admitted in the hospital. It was also alleged that the complainant party also caused injuries to Daya Kishan in their self defence.

On the aforesaid statement made by Bhalle Ram Ex.PD recorded by ASI Ram Parkash, FIR Ex.PG was recorded by the SHO, Police Station Baroda at 7.30 AM on 1.12.1998 which was received by the Judicial Magistrate Ist Class, Gohana at 1.00 PM on 1.12.1998.

On conclusion of the investigation, challan against Kishan, Raj Singh alias Raja, Ajmer and Daya Kishan was presented.

However, challan against accused Sat Naraian (Proclaimed Offender) was presented later on, on receipt of both the challans by commitment, the Court framed the charges against all the accused under Section 148 IPC, 323 read with Section 149 IPC. Accused Sat Naraian alias Pohla was charged under Section 302 IPC and the remaining accused were charged under Section 302 read with Section 149 IPC. Accused Sat Naraian was also charged under Section 307 IPC and the remaining accused were charged under Section 307 read with Section 149 IPC. Accused Sat Naraian was also charged under Section 27 of the Arms Act, to which they pleaded not guilty and claimed Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

trial.

In order to secure conviction of the accused, the prosecution examined HC Rajinder Parshad (PW-1), Subhash Licence Clerk (PW-2), Dr. Vimal Kumar Sharma (PW-3), Bhalle Ram (PW-4), Krishan photographer (PW-5), C. Rajesh Kumar (PW-6), C. Dal Singh (PW-7), Balwan Singh UGC (PW-8), C. Ishwar Singh (PW-9), Sanjay injured (PW-10), Kamlesh (PW-11), Ram Kishan (PW-12), SI Mahender Singh(PW-13), Dr. Rajesh Saini (PW-14), Rai Singh Member Panchayat (PW-15), Ran Singh (PW-16), Inspector Ram Parkash (PW-17), Tek Ram (PW-18), ASI Ram Parkash(PW-19), Inspector Ramdhan (PW-20) and Dr.

S.S. Gupta (PW-21). After tendering into evidence report of Director, FSL, the prosecution closed its evidence.

On closure of the prosecution evidence, statement of the accused namely Kishan, Ajmer, Daya Kishan and Raj Singh alias Raja were recorded under Section 313 of Cr.P.C. However, the accused Sat Naraian alias Pohla who was released on interim bail by the Court did not surrender, therefore, he was declared as Proclaimed Offender by the Court vide order dated 16.1.2001. Consequently, all the accused except accused Daya Kishan continued absconding and were declared as Proclaimed Offenders.

Therefore, the Court tried the case against accused Daya Kishan and Raj Singh alias Raja.

Both the accused denied all the allegations in their statements under Section 313 of Cr.P.C. and pleaded their false implication.

Daya Kishan further explained that when he was present in his house along with his father Daya Kishan and ladies, then Sanjay who was armed with Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

Gandasa and 20-25 persons armed with weapon came to their house and raised Lalkaras to teach them a lesson. Upon this, Sanjay inflicted a gandasa blow to him and other occupants of the house. Then he fired a shot with his gun in his self defence. Other accused namely Ajmer, Sat Naraian, Raj Singh alias Raja were not present.

Accused Raj Singh alias Raja in his statement under Section 313 of Cr.P.C. also pleaded his innocence and false implication in this case.

In their defence, the accused produced Dr. Gaurav Bhardwaj (DW-1), Bhan Singh (DW-2), Khazan Singh (DW-3) and Dr. S.S.

Gupta (DW-4).

When the case was fixed for defence, accused Raj Singh alias Raja absconded, as such he was declared Proclaimed Offender.

However, he was arrested later on. He did not lead any evidence in defence.

The trial Court after scrutinizing the evidence on record, convicted both the accused and sentenced them accordingly. Hence thse appeals.

We have heard learned counsel for the appellants, learned State counsel and scrutinized the records with their assistance.

First of all stress has been laid by the learned counsel for the appellants that there is an ordinate delay in lodging the FIR and the said delay has been utilized by the prosecution to concoct a false story and throw the net wider as the delay has not been explained, therefore, the possibility of confabulation and manipulation cannot be ruled out.

Having appreciated the evidence on record, we observe Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

that it is a case where one person was murdered and the other was attempted to be killed and the witnesses namely Bhalle Ram, Kamlesh, Meena and Kishni were caused injuries. As per evidence, occurrence in this case took place at 7.00 PM on 30.11.1998 at village Jagsi which is at a distance of 16 kms from the Police Station Baroda in District Sonepat. After the incident, the injured were taken to Civil Hospital, Gohana from where they were referred to PGIMS, Rohtak. ASI Ram Parkash (PW-19) on receipt of telephonic message at 10.30PM, first of all, went to Civil Hospital, Gohana from where he came to know that the injured were referred to PGIMS, Rohtak and thereafter he received two ruqas from MHC, Police Post, PGIMS, Rohtak, one about the deceased Rajesh and other about the admission of the injured at PGIMS, Rohtak. After covering the distance from Baroda to Gohana and then from Gohana to Rohtak he reached PGIMS, Rohtak in the morning at about 4.00 AM. Thereafter he consumed time in seeking opinion of doctor with regard to fitness of the injured to make a statements. ASI Ram Parkash (PW-19) has stated that due to night time no conveyance was available to him, therefore, he could not reach the PGIMS, Rohtak prior to that. As regards the approach made by Bhalle Ram to the police earlier, it will not be unsafe to observe that since one person had already died and the other was struggling for life besides he himself being injured and three others also received injuries, therefore, under these circumstances in all human probabilities, the earnest desire of Bhalle Ram was to save and secure the lives of the injured then to run to the Police Station for lodging the FIR. Even otherwise, the fear trauma prevailing upon the villager whose kith and kin is murdered and some are injured can Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

well be imagined and it would not be improbable if he after risking his own life did not move anywhere during the night time. Besides the aforesaid circumstances, for slight delay in lodging the FIR, since occurrence in this case has been admitted by the accused, the delay in lodging the FIR assuming insignificance. It is also well settled proposition of law that the case of the prosecution cannot be thrown out simply on the ground that there is delay in lodging the FIR. In case of delay Court should be on its guard to look for possible corroboration and consider its effect on truthfulness of the prosecution witnesses.

In the instant case, on scrutiny of testimony of Bhalle Ram (PW-4), Sanjay (PW-10) and Kamlesh (PW-11), all injured eye witnesses, it transpires that the said testimonies are quite consistent and corroborate each other and they do not smell of any material contradiction and improvements so as to discard them and throw away the prosecution version. As such this argument advanced by the learned counsel for the appellants stands repelled.

Now coming to the next contention of the learned counsel for the appellants that as per ocular version, one shot each was fired at Sanjay injured and Rajesh deceased whereas three used cartridges and one missed cartridge were recovered during inquisition which create doubt over the prosecution version. Having examined the aforesaid contention we do not find impressed by it for the reasons that the occurrence had taken place in the evening time at about 7.00 PM, two persons were injured as a result of gun shots and three others were injured. The missed fire could also create confusion in the mind of the witnesses about the Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

number of shots as it could not sound. Even otherwise, at such odd hours of the day a photographic picturisation of the spot could not be expected from the rustic and illiterate witnesses. It may further be observed that in cases where use of fire arm is admitted by the accused at the time of occurrence then this minor inconsistency between the medical evidence and the ocular evidence cannot result into rejection of the ocular version. Again, the ocular version being consistent fits in with the medical evidence, therefore, the recovery of more cartridges then two does not effect the subsetrum of the prosecution case. Even otherwise, we are only to see as to how deceased fell victim but it is immaterial that he became victim as a result of one or two gun shots. As a matter of fact, occurrence in this case is admitted by the accused. The plea set up by the accused is two fold; (i) Daya Kishan accused and his son Kishan were not present at the time of occurrence and they fired shots by exercising the right of self-defence; and (ii) Sat Naraian alias Pohla, Ajmer and Raj Singh alias Raja were not present at the time of occurrence. Daya Kishan has stated that when he was present in his house, then Sanjay (injured from the complainant party) armed with Gandasa along with 20-25 persons armed with various weapons forced entry into their house and exhorted to teach them a lesson. Sanjay gave a Gandasa blow to him and other persons, then in their self-defence, he fired a shot with a gun. Similar statement has been made by Kishan accused in this case in order to prove this defence version. The accused had introduced Khazan Singh (DW-3) to state that first of all Rajesh (deceased) gave Gandasa blow on the head of Daya Kishan and others gave blow with axe and lathies. This witness further states that Sanjay also gave Gandasa Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

blow on the person of Kishan and also the other ladies accompanying him inflicted injuries on the person of Daya Kishan, thereafter, Daya Kishan fired a shot from his gun. In order to prove their injuries, the accused have also referred to the statement of Dr. Rajesh Saini (PW-14), Dr. Gaurav Bhardwaj (DW-1), Dr. S.S. Gupta (DW-4). He has also examined Dr. Bhan Singh (DW-2).

Before we set to settle the controversy with regard to availability of right of private defence to the accused, it will be essential to reproduce the injuries on the person of accused and deceased. Dr. Rajesh Saini while appearing in the witness box as PW-14 deposed on 30.11.1998 he prepared the MLR of Sanjay son of Bhalle Ram vide MLR No.RS/PGI/Nove. 1998/8 and found the following injuries on his person :- "1. Multiple pallets entry wounds marks on right side of chest around nipple varying from size 0.3 cms x 0.3 cms to 1 cm x 0.5 cm Entry wounds were 12 in number.

2. Complained of chest pain. The patient was referred to Surgeon for

opinion and further management for injuries Nos. 1 and

2. Nature of injuries kept under observation caused within probable duration of 12 hours. The kind of weapon used was fire arm injury."

On the same day,he also medico-legally examined Kamlesh vide MLR No.RS/PGI/Nov, 1998/9 Ex.PM and noted the following injuries:-

Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

"1. Puncture wound of 1 cm of 0.5 cm on left arm on posterior lateral region 10 cm above the left elbow joint.

2. Complaint of pain in arm and movements at shoulder joint restricted.

Patient was referred to orthopaedician for expert report and further management for injuries No.1 and 2. Nature of injuries kept under observation, probable duration 12 hours and kind of weapon was blunt for all."

On 1.12.1998 , at about 12.53 AM, he also medico- legally examined Kishni wife of Bhalle vide MLR No.RS/PGI/Dec. 1998/1 Ex.PN and found the following injuries on her person :- "1. Lacerated wound 2 cms x 1 cm on upper lip on right side.

2. Complaint of pain in left leg and contusion of 4 cms x 4 cms on posterior aspect of left leg.

3. Teeth posterior to lacerated wound lip (upper) can be moved.

The patient was referred to dental surgeon for injury No.1 and 3 and for injury No.2 for ortheopaedician. Nature of injuries kept under observation, probable duration 12 hours, kind of weapon used was blunt for all."

On the same night, he examined Meena wife of Mahender, 18 years Female, resident of Jagsi vide MLR No. RS/PGI/Dec.

Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

1998/2 at 1:00 AM Ex.PO and noted the following injuries :-

1. Lacerated wound of 4.5 cms c 0.5 cm bone deep on left parietal region

2. Lacerated wound 4 cms x 0.5 cm bone deep on right parietal region.

3. Abrasion of 3 cms x 3 cms on lateral aspect of right knee joint.

He referred the injured for expert opinion by surgeon and further management for injuries No.1 and 2 and for orthopaedic opinion for injury No.3. For nature of injuries, these were kept under observation.

Probable duration of injuries 12 hours and kind of weapon used was blunt for all."

On the same night, he examined Bhalle Ram vide MLR No.RS/PGI/Dec.1998/3 and found the following injuries :-

1. Abrasion of 3 cms x 2 cms on posterior surface of left forearm. Swelling was present on the upper left forearm.

2. Lacerated wound of 1 cm x 0.2 cm on dorsum of left wrist joint.

3. Contusion of 12 cms x 4 cms on left side of chest.

4. Lacerated wound of 4 cms x 0.5 cm x bone deep just above the right eye brow."

During cross-examination he deposed that on the same night i.e. 1.12.1998 at 2.30 AM, he examined Daya Kishan son of Net Ram, 60 years, Male, resident of Jagsi vide MLR No.RS/PGI/Dec.1998/4 and Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

found following injuries :-

1. Abrasion of 1.5 cms x 0.2 cm on anterior surface of left leg. Swelling around the abrasion present.

Movement of leg restricted.

2. Lacerated wound of 6 cms x 0.3 cm on left parietal region.

3. Complaint of pain and tenderness present on the left infraemammary region."

Dr. Vimal Kumar Sharma (PW-3), Medical Officer, General Hospital, Rohtak who conducted the post mortem examination on the dead body of Rajesh observed as under :- "Tt was the dead body of 175cm long male wearing a printed bushirt of white colour, a green waist, an underwear and grey colour trouser. The clothes were stained in blood with multiple holes in the bushirt and the waist.

There were bluish circular 0.5 cm to 1 cm in diameter multiple holes, on the anterior surface of chest and upper part of abdomen in the area of 25 cms x 22 cms starting from 5 cms above the nipple and 6 cms above the umbilicus Margin were abraded in inverted.

The direction of all punctured wounds track was anterior posterior.

Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

On dissection the internal organs were found perforated and pellets were found pierced in the internal organs and collected which were found to be 26 in number and handed over to the police.

The phoracacis cavity was full of blood and so was the abdominal cavity. The walls, ribs, cartilage, ploures, right lung, left lung, the heart, the large vessels, pericardium, peritoneum, abdominal wall, stomach, small intestines, large intestines, liver and spleen were found punctured at many places."

From the above evidence, it is amply established that Rajesh aged about 19 years died at the spot and Sanjay suffered injuries on the right side of his chest due to fire arm injuries. Kamlesh, Kishni, Meena and Bhalle Ram suffered punctured wounds, lacerated wounds, contusions and abrasions which indicate that different weapons were used, however, defence denies having used different weapons at the time of causing injuries. The case of the defence is that only Kishan and Daya Kishan were present at the spot and only Daya Kishan caused fire arm injury. It will add to the frustration of the defence version when accused Kishan in his statement under Section 313 Cr.P.C. concealed having caused any injuries to the complainant party. Since the injures on the person of the complainant party lead us to infer the involvement of more than one person, therefore, in the light of other consistent version coming from the mouth of Bhalle Ram (PW-4), Sanjay (PW-10) and Kamlesh (PW-11), involvement of all the Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

accused is proved. The aforesaid witnesses have consistently stated that Sat Naraian alias Pohla fired shots with his gun which hit Rajesh and Sanjay, whereas Raj Singh alias Raja who was armed with lathi along with other accused attacked the complainant party. Daya Kishan gave a lathi blow on the right eye of Bhalle Ram and other accused caused injuries to Kamlesh, Kishni and Meena. Testimony of aforesaid witnesses was challenged by the accused by making a lengthy cross-examination. But despite the scorching cross examination as conducted by the counsel their conduct could not be scratched a little and they withstood the test.

A definite evidence led by the prosecution that first of all accused Kishan came to the shop of Sanjay and after creating a turmoil over the purchase of some articles, he went back and returned with a bigger force consisting of all the accused armed with deadly weapons including guns and started causing injuries to the complainant party. The occurrence took place in front of the shop of the deceased. The house of the accused was at the back of the shops of the complainant. These facts indicate that the accused were preperators of the crime. They were neither excited nor provoked by the complainant party to cause them injuries nor there was any such occasion. It has come in evidence that complainant party had lost litigation from one Pirthi Singh regarding the shops and the accused had purchased the land underneath the shops, therefore, they had grudge against the accused as admitted by Bhalle Ram (PW-4) to a suggestion given to him.

Another suggestion regarding motive has been given to Bhalle Ram (PW-4) that Naresh has been making indecent remarks to Smt.

Sudesh wife of Sat Naraian on account of which Naresh son of Bhalle Ram Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

was reprimanded and they had quarreled with him on number of times.

Later on Naresh was murdered. Bhalle Ram had named the accused as culprits on account of suspicion and consequently they were arrested by the police. All this goes to show that the accused had grudge against the family of Bhalle Ram and this will amount sufficient motive to cause injuries to the family of Bhalle Ram. Therefore, the circumstances prove that as a sequel of quarrel between Sanjay and Kishan, Kishan went to his house and brought all the accused along with him who had fired shots at Sanjay and Rajesh and caused injuries to other family members whosoever came forward at their rescue. Resultantly, Rajesh died and Sanjay could be saved.

Notwithstanding the fact that the prosecution has led ample evidence to prove the complicity of the accused in the crime, yet the defence led by the accused to prove that the complainant party was aggressor and they acted in self-defence does not inspire confidence and satisfies the conscience of the Court. Daya Kishan has stated that when Sanjay attacked him with Gandasa, then they in their self-defence fired a shot with a gun. Be that it may, if Sanjay had inflicted Gandasa blow then it would have caused an incised wound. It is not the case of the accused that Sanjay gave Gandasa blow from its blunt side then in this situation it would be presumed that he had inflicted Gandasa blow from its sharp side. But this defence plea stands contradicted by Dr. Rajesh Saini (PW-14) who stated that Daya Kishan suffered only two injuries i.e. one abrasion and second lacerated wound and third complaint of pain. Even according to Dr.

S.S. Gupta (DW-4) accused Kishan was having only abrasion and lacerated wounds. Thus, the examination of the injuries of the two accused reveal Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

that none of them suffered any incised wound. It may further be observed that if Sanjay had gone to the house of Daya Kishan with 20-25 persons armed with deadly weapons then in all human probabilities they would not have returned after causing two injuries to Daya Kishan and two minor injuries to the accused Kishan. It may further be observed that Dr. S.S.

Gupta (DW-4) had stated that possibility of suffering injuries by accused Kishan as mentioned in medicolegal report Ex.DB by a fall could not be ruled out. He has intelligently concealed the time of medicolegal examination of accused Kishan in Ex.DB, however, as per record, he was examined by him on the next day i.e. on 1.12.1998, which also creates doubt if Kishan accused suffered injuries during the same occurrence. Had he suffered injuries during the same occurrence, then he must have been medico-legally examined along with his father on the same day.

Again the plea of self-defence as set out by the accused also stands contradicted from the medical evidence and proves the case of the prosecution. As according to Dr. Gaurav Bhardwaj (DW-1) , due to the injury, both bones of left leg of Daya Kishan were fractured meaning thereby that after suffering this injury, Daya Kishan was not in a position to move about, therefore, the version set up by him that on seeing a mob and after suffering the injuries he went back to his house, took gun and came back with the gun and fired shot at Sanjay and Rajesh becomes improbable and an after thought. This contradiction in the defence version proves the case of the prosecution that after Daya Kishan and other accused caused injuries to complainant party, thereafter Bhalle Ram attacked them and caused injuries to Daya Kishan.

Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

At the cost of repetition, it may be observed that since there is a consistent testimony of all the witnesses that all the accused caused injuries to Sanjay, Rajesh, Bhalle Ram, Kishni, Kamlesh and Meena, as a result of which Rajesh died whereas Sanjay survived of the fire arm injury and other four persons suffered injuries and all of them were present at the spot and that the accused party was the aggressor stands duly established on the record.

This is not the case where the testimony of independent witness was required as Bhalle Ram (PW-4), Sanjay (PW-10) and Kamlesh (PW-11) are stamped witnesses and they delineated the graphic version of the occurrence and participation of the accused in the crime in all minute details. They will be the last persons to substitute the accused in place of real culprits. Their testimonies stand corroborated by the medical evidence.

As such, the contention of the accused that Ram Kishan (PW-12) has been turned hostile and PW Hoshiara Singh has been given up is hardly sufficient to throw the prosecution version.

Argument regarding non-explanation of the injuries on the persons of the accused at the hands of the complainant party lacks merit as on cursory look of the statement Ex.PD made by Bhalle Ram at the very initial stage and the FIR Ex.PG recorded by ASI Ram Parkash on the basis of the aforesaid statement clearly reveals that the complainant party did not conceal anything and vomited out that they caused injuries to the accused Daya Kishan in their self-defence.

As we have already observed that Kishan accused did not suffer injuries during occurrence, therefore, injuries on his person need not Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

have been explained. Assuming that Kishan Accused suffered injuries during the occurrence even then injuries on his person being of minor nature need not have been explained.

As regards specific participation of the accused Raj Singh, it may be mentioned that Bhalle Ram (PW-4) and Kamlesh (PW-11) have specifically stated that Raj Singh alias Raja caused a lathi blow to Kamlesh. Even otherwise, the accused five in number had caused numerous injuries to six persons. It was evening time, therefore, in the natural course of human behaviour, it was very difficult for the complainant and the witnesses to give the graphic description as to which accused caused injuries to which injured. However, still the injured witnesses have discribed the part played by each accused to the best of their judgment.

Assuming for the sake of arguments, the witnesses did not mention about the specific part played by the accused, even then, since the accused formed an unlawful assembly and in furtherance of their common object armed with deadly weapons appeared at the scene, committed murder of Rajesh and attempted to commit murder of Sanjay and caused injuries to four others, then in this situation if a specific injury was not attributed to a single individual even then all the accused shall be vicariously liability for committing the crime with the aid of Section 149 IPC.

The authority if any, int his connection could be referred is Laljee and others vs. State of U.P. AIR 1989 Supreme Court 754, wherein the Apex Court observed as under :- "Section 149 makes every member of an unlawful Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly.

However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. The basis of the constructive guilt under S.149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. Thus, once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006

be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. In other words it is not open to the Court to acquit members of the unlawful assembly for lack of corroboration as to their participation."

No other point has been urged in order to assail the impugned judgment.

Having re-appreciated the evidence and vividly re- captulized the scene of occurrence (as described by the witnesses in their testimonies) we are of the view that the trial Court appreciated the prosecution evidence in a right perspective and ignored the defence version for good reasons.

Consequently, while endorsing the trial Court judgment, finding no merit in the appeals, we hereby dismiss the same.

( A.N. JINDAL )

JUDGE

August 21, 2006 ( VIRENDER SINGH)

'deepak' JUDGE

Crl. A. No.277-DB of 2004

Crl. A. No.152-DB of 2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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