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DEVENDER SINGH & ORS versus STATE OF HARYANA.

High Court of Punjab and Haryana, Chandigarh

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Devender Singh & Ors v. State of Haryana. - CRA-D-50-DB-1997 [2006] RD-P&H 847 (16 February 2006)

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH.

Criminal Appeal No.50-DB of 1997.

Devender Singh and others Vs. State of Haryana.

Coram: Hon'ble Mr.Justice J.S. Narang.

Hon'ble Mr.Justice Baldev Singh.

Present: Mr.R.S. Cheema, Senior Advocate, with Mr.Jasev Singh Mehndiratta, Advocate,

for the appellants.

Mr. Ajay Chaudhary, Deputy Advocate General, Haryana.

Criminal Revision No.290 of 1997.

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

Raghbir Singh Vs. Devender Singh and others.

Present: Mr.Baldev Singh, Senior Advocate, with Mr.Harinder Singh.

Criminal Revision No.528 of 1997.

Jai Pal Vs. State of Haryana and others.

Present: Mr.Baldev Singh, Senior Advocate, with Mr.Harinder Singh.

Mr. Ajay Chaudhary, Deputy Advocate General, Haryana.

-.-

BALDEV SINGH , J.

This judgment would dispose of Criminal Appeal No.50-DB of 1997 (Devender Singh and others vs. State Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

of Haryana, Criminal Revision No.290 of 1997 (Raghbir Singh vs. Devender Singh and others) and Criminal Revision No.528 of 1997 (Jai Pal vs. State of Haryana and others.

Devender Singh, Suresh Singh and Shamsher sons of Lekhi Ram and Jai Bhagwan, Jai Pal and Jagbir Singh sons of Hardwari Lal have filed the appeal against the impugned judgment dated December 12, 1996 and sentence order dated December 17, 1996, passed by Sh.J.D. Chandna, the then Additional Sessions Judge, Bhiwani in case First Information Report No. 275 dated June 30, 1993, under Sections 302/ 323/ 324/ 326/ 147/ 148 read with Section 149 of the Indian Penal Code (hereinafter referred to as `the Code') registered at Police Station Sadar, Charkhi Dadri.

The appellants were convicted under Section 302 read with Section 149 of the code for the murder of Sajjan Singh son of Daryav Singh. They were also convicted under Section 148 of the Code for the offence of rioting and under Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

Sections 323, 324 read with Section 149 of the Code for causing injuries to Daryav Singh and Gaje Singh. Each of the appellants was sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- and in default of payment of fine to further undergo R.I for two years under Section 302 read with Section 149 of the Code. Each of them was sentenced to undergo R.I for one year under Section 148 of the Code.

Further, each of them was sentenced to undergo R.I for one year and to pay fine of Rs.500/- and in default of payment of fine to further undergo R.I for three months under Section 324 read with Section 149 of the Code and to undergo R.I for six months under Section 323 read with Section 149 of the Code.

All the substantive sentences were ordered to run concurrently.

Raj Kumar being a juvenile at the time of the alleged occurrence was tried separately in the Juvenile Court.

This judgment is confined to the conviction and sentence of these six appellants.

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

The facts of the prosecution case are that on June 29, 1993, at about 7/8 A.M, P.W. 3 Daryav Siongh along with his sons Sajjan Singh (deceased) and P.W.5 Gaje Singh were weeding out the wild grass from their cotton field. All the six appellants, namely, Devender Singh, Suresh Singh, Shamsher, Jai Bhagwan, Jai Pal and Jagbir Singh along with Raj Kumar son of Lekhi Ram (juvenile, who was separately tried), came there together. Devender Singh and Jagbir Singh (appellants) were armed with `Pharsas'. The remaining appellants were armed with `Jaillys'. The appellants challenged P.W.3 Daryav Singh, Sajjan Singh and Gaje Singh that they would teach them a lesson for getting the land of Puran transferred in favour of the sons of Daryav Singh and that they would uproot their `Bajra' crop. They also said that they would cause them injuries and would get the land of Puran. P.W Daryav Singh told them that it was not good to quarrel and they should go from there. The appellants started abusing them.

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

Sajjan Singh and Gaje Singh asked them to refrain from abusing them. At this, Jagbir Singh (appellant) gave a `Pharsa' blow which hit the head of P.W.3 Daryav Singh. Then Devender Singh (appellant) gave a `Pharsa' blow which hit on the head of Sajjan Singh. Shamsher (appellant) gave a `Jailly' blow which hit on the neck of Gaje Singh. Suresh Singh (appellant) gave a `Jailly' blow `lathiwise' which hit on the shoulder of Daryav Singh. Raj Kumar gave a `Jailly' blow which hit the right knee of Daryav Singh. Daryav Singh fell down. Jai Bhagwan (appellant) gave a `Jailly' blow which hit Sajjan Singh on his right shoulder. Shamsher (appellant) gave a `Jailly' blow to Sajjan Singh which hit on his back. Jai Pal (appellant) gave a `Jailly' blow on the right leg of Sajjan Singh. Sajjan Singh also fell down. Devender Singh (appellant) gave a `Pharsa' blow from reverse side which hit on the left foot of Gaje Singh. Suresh Singh (appellant) gave a `Jailly' blow on the shoulder of Gaje Singh. Jai Pal (appellant) also gave a `Jailly' blow to Gaje Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

Singh. Shamsher (appellant) also gave a `Jailly' blow on the back of Gaje Singh. All the injured raised an alarm, which attracted P.Ws Rajbir and Raghbir. They came there and rescued the injured from the appellants. They then fled away with their weapons.

Rajbir and Raghbir brought the injured to General Hospital, Charkhi Dadri. P.W.11 Dr.S.C. Gupta medico-legally examined Daryav Singh on June 29, 1993 at 11 A.M and he found the following injuries:

"On general examination:- General

condition of the patient was

guarded. Patient was conscious.

B.P. Was 110/70 mm of HG.

Bleeding from the nose and mouth

was present).

1. An incised wound size 6 cms x 1.5 cms bone deep on the middle

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

of the skull extending from the middle to the occipital region of the skull. Margins were smooth and regular. Hair parts

were present inside the wound.

Profused bleeding was present. Advised X- ray skull AP and lateral view.

2. Reddish contusion on the anterior aspect of the right thigh size 6 cms x 4 cms extending above

downward. Movements were painful but

were not restricted.

3. Reddish contusion on the dorsal aspect of the left forearm near the wrist joint. It was tender on touch and

size was 4 cms x 2 cms. Movements

were painful but not restricted."

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

All the injuries were kept under observation. Their probable duration was within 24 hours. Injury No.1 was found with sharp weapon while injuries Nos.2 and 3 were found with blunt weapon. Exhibit P.J is the copy of medico-legal report.

Exhibit P.J/1 is the pictorial diagram showing the seats of the injuries.

P.W.11 Dr.S.C.Gupta, on June 29, 1993, at 11.20 A.M also medico-legally examined Sajjan Singh s/o Daryav Singh and found the following injuries on his person:- "On general examination:- General

condition of the patient was guarded.

Patient was unconscious. Pupils

were sluggishly reacting to light.

Bleeding from the nose and mouth

was present. B.P. Was 110/70 mm of

HG. Pulse was 96 per minute.

1. An incised wound size 8 Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

cms x 1.5 cms into bone deep on the

middle of the skull extending intro-

posteriorly. Margins were smooth and

regular hairfullicles were cut and

embedded in the wound. Profused

bleeding was present. Advised X-ray skull A.P and lateral view.

2. Multiple reddish contusions of varying size on the back at the

various places.

3. Reddish contusion 6 cms x 3 cms on the left calf region. Tender on touch. Movements were painful but not

restricted.

4. Reddish contusion on the top of the right shoulder joint. Movements were painful. Size was 4 cms x 2 cms

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

extending above-onward towards the

back."

Injuries Nos.1 and 4 were kept under observation while injury Nos.2 and 3 were found simple. Probable duration of all the injuries was within 24 hours. Injury No.1 was caused with sharp weapon while injuries Nos.2, 3 and 4 were caused with blunt weapon. Exhibit P.K is the copy of the medico- legal report. Exhibit P.K/1 is the pictorial diagram showing the seats of the injuries.

P.W.11 Dr.S.C.Gupta on June 29, 1993, also medico- legally examined Gaje Singh son of Daryav Singh and found the following injuries on his person:-

"General condition was guarded.

Patient was conscious. No neurological

deficient. Pupils were normal and well

reacting to light both sides. B.P. Was

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

116/80 mm of HG. Pulse was 86 per

minute.

1. A punctured wound of size .75 in diameter depth (?) on the left side of the neck laterally 4 cm below the angle

of the mandible. Margins were irregular.

Fresh bleeding was present. Injury was

kept under observation subject to

Surgeon's opinion.

2. Contusion on the dorsal aspect of the left hand reddish in colour.

Size was 3 cms x 2 cms. Tender on

touch. Movements were painful. Injury

was kept under observation.

3. A lacerated wound on the middle of the left hand on the palmer

aspect. Bleeding was present. Movements

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

were painful but not restricted.

4. An abrasion with contusion having clotted blood on the left foot.

Movements were painful but not

restricted.

5. A reddish contusion 3 cms x 12 cms extending medio-laterally on the back. Tender on touch."

Injuries Nos.1 and 2 were kept under observation.

Injuries Nos.3, 4 an d 5 were found simple in nature. Probable duration of all the injuries was within 24 hours. Injury No.1 was found with blunt weapon while injuries Nos.2, 3, 4 and 5 were found with blunt weapon. Exhibit P.L is the copy of the medico- legal report. Exhibit P.L/1 is the pictorial diagram showing the seats of the injuries.

P.W.11 Dr.S.C.Gupta, on June 29, 1993, also medico- Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

legally examined Jai Pal (appellant) and he found the following injuries on his person:-

"General condition was fair. Patient was conscious. No neurological deficient.

Pupils were normal. B.P. Was 120/80

mm of HG. Pulse was 86 per minute.

1. Two punctured wounds x 3.5 cms apart to each other, vertical in

position in the middle of the chest of size 5 cms x 5 cms into depth (?). Wound was

partially healed. Injury was kept under

observation.

2. Incised wound of size 3 cms x 1 cm into muscle deep on the left

parietal region of the skull. Margins were smooth and regular. Bleeding was present on touch. Wound was already dressed by

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

ordinary clothes. Advised X-ray of the

skull."

Both the injuries were kept under observation and the probable duration was within 24 to 36 hours. Kind of weapon used was blunt pointed. Injury No.2 was caused by sharp weapon.

P.W.11 Dr.S.C.Gupta on June 29, 1993, sent ruqa (Exhibit P.M) to Station House Officer, Police Station Sadar, Charkhi Dadri regarding the admission of injured Daryav Singh, Sajjan Singh and Gaje Singh in General Hospital, Charkhi Dadri. P.W.12 Head Constable Jagphool Singh, on receiving ruqa (Exhibit P.M) along with copies of medico-legal reports (Exhibits P.L, P.J and P.K) in the Police Station, reached General Hospital, Charkhi Dadri. He moved an application (Exhibit P.M/1) to ascertain the condition of Sajjan Singh (injured) if he was fit to make statement. Dr.S.C. Gupta, vide his endorsement Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

(Exhibit P.M /2) gave opinion that he was not fit to make statement. He gave report that the other two injured, namely, Daryav Singh and Gaje Singh were fit to make statements.

P.W.12 Head Constable Jagphool Singh then recorded the statement of P.W.3 Daryav Singh, which is Exhibit P.C.

Endorsement (Exhibit P.C/II) was made underneath it and it was sent for registration of the case. First Information Report was registered on its basis. Copy of the First Information Report is Exhibit P.C/1.

Head Constable Jagphool Singh took with him P.W.Raghbir. He inspected the place of occurrence and drew the site plan (Exhibit P.Q).

On July 03, 1993, P.W.2 Jagphool Singh, Head Constable, reached General Hospital, Charkhi Dadri and gave application (Exhibit P.R). Endorsement (Exhibit P.R/1) was made by the Doctor informing that Sajjan Singh injured had been referred to Medical College and Hospital, Rohtak. P.W.12 Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

Jagphool Singh, Head Constable, then went to Rohtak. He gave an application (Exhibit P.R/2) and the Doctor, vide his endorsement (Exhibit P.R/3) declared that Sajjan Singh was unfit to make statement.

P.W.12 Jagphool Singh, Head Constable, on July 06, 1993, arrested Shamsher, Jai Bhagwan, Jai Pal and Devender Singh (appellants) and Raj Kumar. Shamsher, Jai Bhagwan and Jai Pal (appellants) produced `Jaillys' while Devender Singh (appellant) produced `Pharsa'. These weapons were sealed separately into parcels and recovery memos (Exhibits P.S/1, P.S/2, P.W/3 and P.S) were prepared.

On June 30, 1993, P.W.2 Dr.Hitesh Malhotra had radiologically examined Sajjan Singh. He found fracture in frontol-parietal region. There was no fracture in chest.

Exhibit P.A is copy of his X-ray report. Exhibit P.A/1 to P.A/5 are X-ray filmsl.

Sajjan Singh (injured) died in Medical College and Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

Hospital, Rohtak, on July 10, 1993. A V.T message, copy of which is Exhibit P.U, was received by P.W.14 Hari Charan, Assistant Sub Inspector. He then went to Medical College and Hospital, Rohtak, and from the Police Post there, he got ruqa (Exhibit P.V). Then, on the next day, i.e July 11, 1993, he prepared inquest report, which is Exhibit P.G/2. Exhibit P.G/1 application was given for conducting post mortem examination on the dead body of Sajjan Singh.

P.W.8 Dr.S.K. Sharma, on July 11, 993, conducted post mortem examination on the dead body of Sajjan Singh. His observations were as under:-

" It was 173 cms long

moderately built male body wearing a

blue printed `Chadder' having blood

supported by luco-plaster strips. Eyes

and mouth were held opened. Rigor

mortis was present. Post mortem staining Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

on the back was present.

On removing the crep

bandage from the head, there was a 28

cms long stitched wound starting 8 cms

above the bridge of the nose in mid line going backward and to the right side

reaching upto 8 cms behind right ear. At the end, there was a rubber drain from

where blood was oozing out. On exposing

the skull, tissue under the skull was

infiltrated with blood. On the skull, the frontal bone had a roughly oval hole 3

x 2 cms covered with haematoma

another hole on the right parietal bone.

It was also roughly oval and measuring

5 x 2.5 cms covered with haematoma.

Underlying brain was congested. Sub-dural Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

haematoma was also present. All other

organs were found healthy. Both the

lungs were congested.

The cause of death of the

deceased in the opinion of the doctor

was due to shock caused by head injury. It was anti mortem in nature and was

sufficient to cause death in normal course of nature. The following articles were

handed over to the police:

1. A duly stitched body after post mortem examination.

2. Copy of post mortem report No.575/93 dated 11.7.1993.

3. Police papers number 15 duly signed.

4. A packet bearing 3 seals containing clothing i.e `Chador' of the

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

deceased.

5. A sample seal." Time elapsed between death and post mortem was within 24 hours. Exhibit P.G is the carbon copy of the post mortem report.

On July 25, 1993, P.W.14 Hari Charan, Assistant Sub Inspector, arrested Jagbir Singh and Suresh Singh (appellants). Jagbir Singh got recovered a `Pharsa' in pursuance of his disclosure statement. His disclosure statement is Exhibit P.X. Sketch of the `Pharsa' is Exhibit P.X/1. Exhibit P.X/2 is the recovery memo. Exhibit P.X/3 is the site plan showing the place of recovery. Suresh Singh (appellant) got recovered a `Jailly' in pursuance of his disclosure statement.

Disclosure statement is Exhibit P.Y. Sketch of the `Jailly' is Exhibit P.Y/1. Its recovery memo is Exhibit P.Y/2. Site plan showing the place of recovery is Exhibit P.Y/3.

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

On completion of the investigation, challan was put in Court against the appellants.

The case was committed to the Court of Session for trial. Charge for the offences punishable under Sections 148/ 302 323/ 324 read with Section 149 of the Code was framed against the appellants. They did not plead guilty to the charge and claimed trial.

The prosecution, at the trial, examined fourteen witnesses, namely, P.W.1 Attar Singh, Record Keeper, P.W.2 Dr.Hitesh Malhotra, P.W.3 Daryav Singh, P.W.4 Dr.Suresh Chander, P.W.5 Gaje Singh, P.W.6 Raghbir Singh, Head Constable, P.W.7 Dr.R.A. Gupta, P.W.8 Dr.S.K. Sharma, P.W.9 Rajpal, Patwari, P.W.10 Siri Bhagwan, Inspector, P.W.11 Dr.S.C. Gupta, P.W.12 Jagphool Singh, Head Constable, P.W.13 Dr.Ajay Sharda and P.W.14 Hari Charan, Assistant Sub Inspector. They proved various documents which are on the file.

Statements of the appellants were recorded by Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

the trial Court under Section 313 of the Code of Criminal Procedure on the conclusion of the prosecution evidence.

Devender Singh (appellant) stated as under:- "There is dispute over the land

between us and the opposite party.

Civil case was already pending about the said land. I was not present at the time of occurrfence on 29.6.1994. I was not in

the village on 29.6.1994. I had gone

along with my tempo to Dadri after

taking passengers to Dadri at about

6.00 in the morning. I plied my temp for the whole day from Neemli to Dadri as

usual since morning to the evening.

When I returned with the passengers at

about 10.00 in the morning to Village

Neemli, I was told that there was some

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

raula. I have been implicated in this case falsely."

Jai Bhagwan (appellant) stated as under:- " There was a dispute about

land. We had gone to cultivate our own

land. When we were busy in sowing the

land, Raghbir etc. came there and they

started beating us. We acted in our

defence. It is a false case."

Suresh Singh (appellant) stated as under:- "It is a false case. I run a

type and photo-stat shop in Matenhel,

District Rohtak, and I was not present at the time of the said occurrfence. I have been implicated due to enmity between

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

my brothers and the opposite party."

Jai Pal (appellant) stated as under:-

" Jai Bhagwan, my brother,

and myself had gone to sow Bajra crop

in our field. Raghbir etc. came there.

Sajjan gave a Kulhari blow in my head.

There was scuffle in between me and

Sajjan. Daryav gave lathi blow aiming at me, but it ultimately landed on Sajjan.

It is a false case and I am innocent.

Shamsher (appellant) stated as under:-

" I had gone to take care of

my filed. I was 2 or 3 Killas away from

the land when I heard the raula between

these persons. The moment I reached the

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

place of occurrence, everything was over.

I am innocent.

Jagbir Singh (appellant) stated as under:- " I was not present at the

spot at the time of any such occurrence. I have been falsely implicated in this case.

The appellants, in defence, examined two witnesses, namely, D.W.1 Jagbir Singh and D.W.2 Rati Ram.

Arguments of the Ld. Counsel for the appellants and of the Deputy Advocate General, Haryana, appearing for the respondent-State, were heard and the evidence was scrutinised with their help.

The Ld. Counsel for the appellants argued that there is delay in lodging the First Information Report, which is fatal to the prosecution case. The occurrence had taken place Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

on June 29, 1993, at about 7/8 A.M. Injured Daryav Singh, Gaje Singh and Sajjan Singh were taken to General Hospital, Charkhi Dadri. They were medico-legally examined there on June 29, 1993 between 11 A.M to 12 noon. Ruqa (Exhibit P.M) was sent by P.W.11 Dr.S.C.Gupta to the Station House Officer, Police Station Sadar, Charkhi Dadri on June 29, 1993.

It was received in the Police Station on June 29,1993. P.W.12 Head Constable Jagphool Singh on June 29,1993, sought opinion of the doctor regarding the condition of the injured as to whether they were fit to make statements. The doctor declared them unfit to make statements. Then, on June 30, 1993, again opinion of the doctor was sought. He declared Daryav Singh and Gaje Singh fit to make statements. P.W.12 Head Constable Jagphool Singh then recorded the statement of P.W.3 Daryav Singh, which is Exhibit P.C. Endorsement (Exhibit P.C/II was made underneath it on June 30, 1993 at 1.30 P.M.

First Information Report was initially registered for the offences Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

under Sections 147/ 148/ 149/ 323/ 324 of the Code. Copy of the First Information Report was sent to the Ilaqa Magistrate, who received it on July 02, 1993 at 10 A.M. Section 302 of the Code was added later on on July 10,1993 when Sajjan Singh died in the hospital. So, no special messenger was sent to the Ilaqa Magistrate on June 30, 1993. The prosecution case cannot be thrown aside simply because of some delay in the First Information Report. Delay puts the Court on caution to scrutinise the testimonies of the witnesses with greater care. Sons of Lekhi Ram and sons of Hardwari Lal, who formed an unlawful assembly with the common object to grab the land in possession of the complainant party and to cause injuries to them, were named in the First Information Report.

No attempt was made to rope in innocent persons. If the complainant party intended to rope in innocent persons, then Sewa Singh, another son of Hardwari Lal, would have been roped in. Said Sewa Singh was instrumental in the civil suit Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

filed by Puran for the return of the land. So, the delay in lodging the First Information Report in this case has no nullifying effect.

The Ld. Counsel for the appellants argued that the complainant party attacked the appellants. The appellants were in possession of the land. According to the prosecution, sons of Daryav Singh had got the land of Puran transferred in their favour. Sons of Lekhi Ram and Hardwari Lal were deprived of this land. They became jealous as sons of Daryav Singh had got whole of the land of Puran. It is in evidence of P.W.3 Daryav Singh and P.W.5 Gaje Singh that the appellants came and they proclaimed that they would teach a lesson to Daryav Singh, Sajjan Singh and Gaje Singh for getting the land of Puran transferred in their favour. According to the defence version, Jai Bhagwan and Jai Pal (appellants), had gone to sow `Bajra' crop. Raghbir etc. came there. Sajjan Singh gave a `Kulhari' blow on the head of Jai Pal (appellant). There Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

was scuffle between Jai Pal (appellant) and Sajjan Singh (deceased). Daryav Singh gave a ` Lathi' blow aiming at Jai Pal (appellant), but it accidentally landed on Sajjan Singh. The defence version is not true. It is in evidence that `Bajra' crop was already standing in the land. The land was not lying vacant, so that `Bajra' crop could be sown there. The site plan prepared by the Investigating Officer reveals that six inches high `Bajra' crop was standing in the disputed land wherein the occurrence took place. It was sown by the complainant party. The appellants went to the field to uproot the `Bajra' crop. Puran, by suffering decree against him, had transferred his land in favour of the sons of Daryav Singh. Later on, Puran was prompted to challenge the decree passed against him. He filed a suit and the sons of Hardwari Lal sided with him. The sons of Daryav Singh were in possession of the land, which originally belonged to Puran. The appellants wanted to oust them from Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

the land. They formed an unlawful assembly, the common object of which was to usurp the land and to cause injuries to the complainant party. They were aggressors. The appellants had filed a cross case against the complainant party, which was dismissed and the complainant party was acquitted.

The appellants have taken the plea that they acted in self-defence. In his statement recorded under Section 313 of the Code of Criminal Procedure, Jai Bhagwan (appellant) stated that there was a dispute about land.They had gone to cultivate their land. When they were busy in sowing the land, Raghbir etc. came there and they started beating them. They acted in their self-defence.Jai Pal (appellant) in his statement recorded under Section 313 of the Code of Criminal Procedure stated that he and Jai Bhagwan (appellant) had gone to sow `Bajra' crop in their field. Raghbir etc. came ther e. Sajjan Singh gave a `Kulhari' blow in his head. There was scuffle between him and Sajjan Singh. Daryav Singh gave `Lathi' Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

blow aiming at him, but it accidentally landed on Sajjan Singh. Since the appellants were aggressors, the right of self defence is not available to them. As discussed above, the `Bajra' crop was already standing there. The defence version is false that the appellants had gone there to sow `Bajra' crop. The defence version is false that Daryav Singh aimed `Lathi' blow on Jai Pal (appellant) but it accidentally landed on Sajjan Singh. P.W.11 Dr.S.C.Gupta had medico-legally examined Sajjan Singh (deceased), Sajjan Singh had four injuries and one of them was on the head. It was not caused with a `Lathi'. The description of the injury is as under:- "1. An incised wound size 8 cms x 1.5

cms into bone deep on the middle of

the skull extending intro-posteriorly.

Margins were smooth and regular

hairfullicles were cut and embedded in

the wound. Profused bleeding was

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

present. Advised X-ray skull A.P and

lateral view.

This injury is attributed to Devender Singh (appellant). He was armed with a `Pharsa' and he had caused this injury on the head of Sajjan Singh. In this respect are the statements of P.W.3 Daryav Singh and P.W.5 Gaje Singh. They both had deposed that Devender Singh gave a `Pharsa' blow which hit the head of Sajjan Singh. So, the plea of self-defence is not available to the appellants.

It is argued by the Ld. Counsel for the appellants that injuries to Jai Pal (appellant) have not been explained by the prosecution. P.W.11 Dr.S.C.,Gupta had medico-legally examined Jai Pal (appellant) on June 29, 1993. Two injuries were found on his body, which are as under:- " 1. Two punctured wounds x

3.5 cms apart to each other, vertical in position in the middle of the chest of size Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

5 cms x 5 cms into depth (?). Wound was

partially healed. Injury was kept under

observation.

2. Incised wound of size 3 cms x 1 cm into muscle deep on the left

parietal region of the skull. Margins were smooth and regular. Bleeding was present on touch. Wound was already dressed by

ordinary clothes. Advised X-ray of the

skull."

The doctor had deposed that the wound (injury No.1) was partially healed. Second injury was an incised wound. The punctured wound and incised wound could not be caused in the same occurrence. For injury No.1, the weapon used was opined as blunt pointed. For injury No.2, the weapon used was opined as sharp. Their probable duration was Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

within 24 to 36 hours. P.W.11 Dr.S.C.Gupta deposed that possibility of these injuries having been caused by a friendly hand cannot be completely ruled out. In these circumstances, it cannot be accepted that the injuries were caused to Jai Pal (appellant) by the complainant party. The prosecution is not under an obligation to explain these minor injuries to Jai Pal (appellant).

Appellants Devender Singh and Suresh Singh have taken the plea of alibi. Shamsher (appellant) took the plea that he was 2/3 Killas away from the land when he heard `raula'. The moment he reached the place of occurrence, everything was over. Jagbir Singh (appellant) took the plea that he was not present at the spot at the time of any such occurrence. He has been falsely implicated in this case.

According to the statement of Devender Singh (appellant), recorded under Section 313 of the Code of Criminal Procedure, he was not present at the time of occurrence on June 29, Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

1994. He was not in the village. He had gone along with his tempo to Charkhi Dadri at about 6.00 A.M. He plied his temp the whole day from Neemli to Charkhi Dadri as usual.

When he returned with the passengers at about 10 A.M to village Neemli, he was told that there was some `raula'.

He was falsely implicated in this case. According to the statement of Suresh Singh (appellant), recorded under Section 313 of the Code of Criminal Procedure, he was not present at the time of alleged occurrence. He ran a type and photo- stat shop in Matenhel, District Rohtak. He was implicated due to enmity between his brothers and the opposite party.

The appellants examined D.W.1 Jagbir Singh and D.W.2 Rati Ram. From their statements, the plea of alibi raised by Devender Singh and Suresh Singh (appellants) lis not proved.

Their evidence is neither cogent nor convincing. The trial Court rightly discarded their evidence. The participation of all the appellants in the occurrence is well-proved and there is no doubt Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

about it.

Last of all, the Ld. Counsel for the appellants argued that the appellants had no intention to commit the murder of Sajjan Singh. Hence, their conviction under Section 302 read with Section 149 of the Code is not sustainable.

Devender Singh and Jagbir Singh (appellants) were armed with `Pharsas'. The rest of the appellants were armed with `Jaillys'. Except one incised wound in the middle of the skull (injury No.1), the other three injuries on Sajjan Singh are on non-vital parts of the body. There are multiple contusions on the back, a contusion on left calf and a contusion on right shoulder. Injury No.1 alone was with sharp weapon while all the remaining three injuries are with blunt weapon. Injury No.1 is attributed to Devender Singh (appellant). He was armed with a `Pharsa'. If the appellants intended to cause the death of Sajjan Singh, they would have caused him more fatal injuries with force, resulting in his instantaneous death.

Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

Sajjan Singh died on July 10, 1993 i.e after eleven days of the occurrence. Statement of P.W.8 Dr.S.K. Sharma reveals that there were two oval shape holes in the skull bone of Sajjan Singh (deceased). According to P.W.8 Dr.S.K. Sharma, these might have been made by the doctors in the Medical College and Hospital, Rohtak, who had treated him for haematoma.

Had this haematoma not been there, the man would not have died. However, in this case, the appellants, after forming an unlawful assembly armed with weapons, came with the common object to take possession of the land and to uproot `Bajra' crop, which the complainant party had sown, and in prosecution of this common object, caused injuries to Sajjan Singh, Gaje Singh and Daryav Singh. Devender Singh (appellant) caused injury with `Pharsa' on the head of Sajjan Singh, which proved fatal. He is attributed with the knowledge that by causing head injury with `Pharsa', his act was likely to cause the death of Sajjan Singh. He is guilty Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

under Section 304, Part II of the Code. The other appellants are vicariously liable with the aid of Section 149 of the Code.

They are guilty under Section 304, Part II read with Section 149 of the Code.

In the case of Om Parkash v. State of Haryana, AIR 1981 Supreme Court 642, the Sessions Judge convicted the appellant under Section 304 of the Code and sentenced him to undergo R.I for 5-1/2 years. The High Court took a different view. It convicted him under Section 302 of the Code and sentenced him to undergo life imprisonment. The Hon'ble Supreme Court took more lenient view and convicted him under Section 304, Part II of the Code and sentenced him to undergo R.I for seven years. The facts were that there was a quarrel between the accused and the victim. The accused, incensed by situation, gave blow with stick on vulnerable part of victim's body resulting in his death. It was held that offence under Section 304, Part II of the Code was made out, not Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

under Section 302 of the Code and the judgment of the High Court was reversed.

In the case of State of Punjab vs. Fauja Singh and others, 1997 (1) Chandigarh Criminal Cases 385 (High Court), there were seven injuries, six on non-vital parts and seventh on spleen, which proved fatal. Dimension of injuries showed that weapons of offence were not used with force. Co- accused had caused injuries in furtherance of their common intention with the knowledge that their act was likely to cause death. It was held that offence was punishable under Section 304/34 of the Code and altered from Section 325 read with Section 34 of the Code. R.I for ten years was awarded.

In the case of Madhusudan Satpathy and others v. State of Orissa, 1994 Criminal Law Journal 144 (Supreme Court), medical evidence showed that only one fatal injury on head of the deceased was caused. Other injuries were Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

found simple. No deadly weapon was used. It was held that the accused had only knowledge that injuries inflicted by them were likely to cause death and had no intention of cause death. One accused had given `Bhala' blow on right temporal region of the head. Second accused gave a blow on the right side of his death with a wooden plank. Third accused had given a blow on the bridge of the nose. The other accused had given `Lathi' blows. Conviction by the High Court under Section 304, Part I of the Code and sentence of six years' rigorous imprisonment was altered to Section 304, Part II of the Code and sentence was reduced to three years' rigorous imprisonment.

In the case of Kotwal v. State of Madhya Pradesh, 1994 Criminal Law Journal 255 (Supreme Court), the appellant was convicted by the High Court under Section 304, Part II of the Code and and was sentenced to undergo R.I for five years. No interference was made by the Hon'ble Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

Supreme Court. The accused had caused injury on head of the deceased by throwing a stone, as a result of which the brain matter came out.

So, in this case, in our opinion, offence under Section 304, Part II of the Code is made out. Offence under Section 302 of the Code is not made out.

The appeal is, therefore, partly allowed. The impugned judgment and sentence order are modified.

Devender Singh (appellant) is convicted under Section 304, Part II of the Code. All the remaining appellants are convicted under Section 304, Part II read with Section 149 of the Code. Each of them is sentenced to undergo R.I for seven years and to pay Rs.1,000/- (each) as fine and in default of payment of fine to further undergo R.I for six months. Each of them is also convicted under Section 148 of the Code and sentenced to undergo R.I for one year. Each of them is also convicted under Section 324 read with Section 149 Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

of the Code and sentenced to undergo R.I for one year and to pay Rs.500/- (each) as fine and in default of payment of fine to further undergo R.I for three months. Further, each of them is convicted under Section 323 read with Section 149 of the Code and is sentenced to undergo R.I for six months. All the substantive sentences are ordered to run concurrently.

The amount of fine, if realized, would be paid to the heirs of Sajjan Singh.

Appellants Suresh Singh, Shamsher, Jai Bhagwan, Jai Pal and Jagbir Singh are on bail. The Chief Judicial Magistrate, Bhiwani, would issue their warrants of arrest and would commit them to jail to undergo the remaining part of their sentence. Appellant Devender Singh is confined in jail. The Chief Judicial Magistrate, Bhiwani, would issue fresh warrants of Devender Singh and send the same to jail, where he is lodged.

Raghbir Singh has filed Criminal Revision No.290 of Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

1997 stating therein that the sentence awarded to the respondents-appellants is too inadequate. They committed gruesome crime. It is also stated that heirs of the deceased are poor persons and sufficient amount of compensation be ordered to be awarded to them. The appellants-respondents have been convicted under Section 304, Part II read with Section 149 of the Code. The finding recorded by the trial Court that they had committed the offence under Section 302 read with Section 149 of the Code has been altered. So, the sentence has also been reduced.

However, it has been ordered that the amount of fine, if realized, would be paid to the heirs of Sajjan Singh (deceased). In view of these findings recorded in the appeal, this revision petition is dismissed.

Jai Pal has filed Criminal Revision No.528 of 1997 contending therein that Raghbir Singh, Daryav Singh and Gaje Singh were illegally acquitted. The police had also challaned Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

them for the offences punishable under Sections 323 and 324 read with Section 34 of the Code. Their acquittal was not challenged by the State by filing any appeal. The trial Court grossly erred in acquitting them. There is no merit in this revision petition. The State of Haryana has not filed any appeal against the acquittal. Moreover, it has been established in the appeal that Jai Pal (petitioner) along with his companions, namely, Devender Singh, Suresh Singh, Shamsher, Jai Bhagwan and Jagbir Singh formed an unlawful assembly, armed with weapons and they caused injuries to Sajjan Singh, Gaje Singh and Daryav Singh and their common object was also to uproot the `Bajra' crop sown by these respondents in the disputed land. The petitioner and and his companions were aggressors. The trial Court had rightly accepted the version given by Daryav Singh and had rightly discarded the version of the petitioner and had rightly acquitted these respondents from the charges under Section 323 and 324 Criminal Appeal No. 50-DB of 1997,

Criminal Revision No.290 of 1997 and

Criminal Revision No.528 of 1997.

read with Section 34 of the Code. This revision petition is, therefore, dismissed.

( BALDEV SINGH )

JUDGE

February 28, 2006. ( J.S. NARANG )

ak JUDGE


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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