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HAWA SINGH & ORS versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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Hawa Singh & Ors v. State of Haryana - CRA-D-143-db-2005 [2006] RD-P&H 8891 (19 October 2006)

Crl. Appeal No. 143 DB of 2005 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. Appeal No. 143 DB of 2005

Date of decision: 24.10.2006

Hawa Singh and others ...Appellants

Versus

State of Haryana ...Respondent.

CORAM:- HON'BLE MR. JUSTICE K.S. GAREWAL
HON'BLE MR. JUSTICE R.S. MANDAN

Present: Mr. R.S. Ghai, Senior Advocate with R.S. Chahar, Advocate and

Mr. Vinod Ghai, Advocate,

for the appellants.

Mr. S.S. Goripuria, DAG, Haryana.

K.S.GAREWAL, J.

On the day of Phag 2000 (March 20), in Village Kitlana, Bhiwani, Man Singh's family and sons of his cousin Shankar exchanged blows. Man Singh was fatally injured, while his son Sajjan (PW-7), Sajjan's wife Anju (PW-8), Man Singh's mother Sarti and brother Azad Singh were injured. On the other hand, sons of Shankar, namely, Jagdish and Devinder @ Raju as well as his wife Gindori also received injuries.

Shankar's five sons, Hawa Singh, Parkash, Jagdish, Devender @ Raju and Balwan along with his daughter Murti were tried, convicted and sentenced by the learned Additional Sessions Judge, Bhiwani, on January 17/19, 2005 for Man Singh's murder and for other lesser offences (during Crl. Appeal No. 143 DB of 2005 2

the trial Gindori Devi died and proceedings against her were dropped on January 25, 2001). All the six appellants herein were sentenced to rigorous imprisonment for life and to other lesser concurrent terms. The appellants have challenged their convictions and sentences through this appeal.

The prosecution case against the appellants was that the plot adjoining Man Singh's house was claimed by Man Singh to be his but it was under no one's possession. There was a fight over the said plot on July 16, 1993 in which all the accused except Devender @ Raju were convicted and sentenced for causing injuries to Sajjan and others. The appellants asked Man Singh to enter into a compromise but Man Singh's family did not agree.

On March 20, 2000 at 4 p.m. Man Singh was sitting near the gate of his house while members of his family were present inside the house. Hawa Singh, Parkash and Jagdish armed with swords, Balwan and Devender @ Raju armed with lathis, their sister Murti armed with rapri and their mother Gindori armed with pharsa came there. They entered the house and upon exhortation, that a lesson be taught to Man Singh for getting them convicted, Hawa Singh opened the attack with a sword with which he hit Man Singh on the head. This was followed by Parkash giving a blow with his sword which hit Man Singh in the middle of his head. Jagdish also gave a sword blow which hit Man Singh on the back of the head. When alarm was raised, Balwan hit Sajjan (PW-7) with a lathi on his forehead above left eye. Devender @ Raju hit Sajjan (PW-7) with a lathi on left of his leg. Murti and Gindori also inflicted injuries on Sajjan. They also caused grievous injuries to Anju and Sarti. Sajjan's younger brother Krishan and his uncle Azad Singh reached the spot to rescue them from the Crl. Appeal No. 143 DB of 2005 3

assailants. During the course of rescuing the injured Azad Singh also sustained injuries. Some injuries were also inflicted by complainant party on the accused in self defence, before the accused retreated from the spot with their respective weapons. After the occurrence was over, the injured were evacuated to Civil Hospital, Bhiwani. On reaching the hospital Man Singh succumbed to his injuries, whereas the injured were medico legally examined. Anju and Sajjan were medico legally examined by Dr. Arjun Chander Yadav (PW-1) at 6.35 p.m. and 8.15 p.m., respectively. Anju was found to have the following injuries on her right hand.

"Lacerated wound on the right hand which was bone deep x-ray and ortho-surgeon opinion was advised."

Sajjan was found to have the following injuries on his person.

1. Lacerated wound on scalp. Fresh bleeding was present. X-ray and surgeon opinion was advised.

2. Abrasion on little finger of left hand, was freely mobile.

3. Lacerated wound on left leg, fresh bleeding was present.

4. Bruised thumb of right hand, mobility was restricted. X- ray was advised.

5. Lacerated wound on scalp, fresh bleeding was present.

6. Bruises multiple on the back, pinkish.

7. Bruise on right side of chest." Some time later at 12.15 a.m. on March 21, 2000, Sarti was medico-legally examined by Dr. R.P. Sharma (PW-9) and found to have the following injuries on her person.

"Lacerated wound 4 cm x 5 cm on frontroprietal region (mid line)

Crl. Appeal No. 143 DB of 2005 4

Advised x-ray skull."

Azad was also medico legally examined by Dr. R.P.Sharma (PW-9) and found to have the following injuries on his person.

1. Rounded lacerated wound 5 x 5 cm with smooth margins on lateral side of right fore-arm in its middle 1/3rd

. Underlying defuse swelling present beneath and around this injury.

Advised ortho-surgeon opinion."

2. Lacerated wound 1.5 x .5 cm on lateral side of right wrist.

3. Linear abrasion 3 cm long on left side of cheek." The case was registered at Police Station Sadar, Bhiwani on the basis of the statement of Sajjan (PW-7) recorded by ASI Suraj Bhan at 10.50 p.m. on the same evening at General Hospital, Bhiwani. FIR was recorded at 11.30 p.m. under Sections 302, 148, 149 452, and 323 IPC.

Special report was delivered at 3.50 a.m. on March 21, 2000. Thereafter, the Investigating Officer took up the investigation by first preparing the inquest report on the dead body of Man Singh deceased. After the inquest proceedings, post-mortem was conducted by Dr. Ramesh Kumar (PW-4).

The Medical Officer found the following injuries on the body of Man Singh.

1. An incised wound 2-1/2 x inch on the left temporoparietal region of scalp. It is just one inch above the upper part of left pinna. Wound is running horizontally and vertically direction. On exploring the wound, the underlying tissue shows clotted blood in huge amount and the underlying bone was healthy.

Crl. Appeal No. 143 DB of 2005 5

2. An incised wound of 3 x 1 inch size running almost in the middle of scalp on parietal region. On opening the injury, there was a good amount of clotted blood present under the injury. On further opening, the underlying perital bone was fractured and this fracture extends upto the frontal bone which was also fractured. On further opening membrance and brain matter were heavily congested due to hematoma formation.

3. Only clotted blood was present. No external injury seen, all the injuries are anti-mortem in nature.

In the opinion of the Medical Officer, the cause of death were injuries 1 and 2 which caused haemorrage and shock and injury to the brain.

These injuries were sufficient to cause death in ordinary course of nature.

The probable time between injury and death was within hours and time between death and post-mortem was within 24 hours.

The accused were arrested on March 30, 2000 by Inspector Darshan Lal (PW-11). On the basis of their respective disclosure statements, certain weapons were recovered from possession of the accused.

Axes from Parkash and Hawa Singh, rapris from Jagdish and Devender @ Raju and a lathi from Balwan.

After completion of the investigation, all the accused barring Murti were sent up for trial. Murti was placed in column 2 of the report under Section 173 Cr.P.C. She was subsequently summoned to stand trial under Section 319 Cr.P.C. Charge was first framed against the accused on July 19, 2000 under Section 302 read Section 149 IPC and other related offences. Charges were re-framed on January 25, 2001. By this time Murti Crl. Appeal No. 143 DB of 2005 6

Devi had been summoned as accused. Finally, charge was re-framed on April 15, 2004.

The prosecution examined Dr. Arjun Chander Yadav (PW-1), HC Jagdish Chander PW-2 (with regard to registration of the FIR), HC Ajit Singh PW-3 (with regard to taking Man Singh's dead body for post- mortem), Dr. Rakesh Kumar (PW-4), C. Maha Singh PW-5 (with regarding to delivery of special report) Draftsman Kanwarpal Singh PW-6 (with regard to preparation of site plan), Sajjan (PW-7), Anju (PW-8), Dr. R.P.

Sharma (PW-9), Ravinder Singh AVRK (PW-10) and Inspector Darshan Lal (PW-11). Statements of the accused were recorded. They denied the various items of incriminating evidence led by the prosecution and unanimously stated that they were innocent. They had been involved in a false case. Only Gindori, Jagdish and Devender were present in the house when the complainant party attacked them in their house. The other accused were not present in the house.

On being called upon to enter defence, the accused examined Record Keeper Parshant (DW-1), who placed on record bed head tickets of Devender, Gindori and Jagdish. The learned Additional Sessions Judge accepted the prosecution case in its entirety and convicted the appellants.

The learned counsel for the appellants has argued that there was delay in registration of the case. The occurrence had taken place at 4 p.m.

Sajjan's statement was recorded at 10.50 p.m. and on its basis FIR was registered at 11.30 p.m. The special report of the case was delivered to the learned Magistrate at 3.50 a.m. on the following day. Therefore, there was a long delay in the finalization of the prosecution version. During this period, pre-registration consultations had taken place and the version finally Crl. Appeal No. 143 DB of 2005 7

presented at the trial was based on a belated FIR, which was not the correct story. It was further argued that the medical evidence did not corroborate the eye witness account. The prosecution version had been finalized after the Investigating Officer had closely inspected the dead body and came to a definite conclusion regarding the nature and number of injuries. The case was an inquest-oriented one. Two of the accused, Jagdish and Devender, had also received injuries but no explanation is forthcoming regarding the manner in which these had been inflicted during the occurrence. The place of occurrence had been shifted from the house of the appellants to the house of the complainant party. The appellants' were the victims of assault, the complainant party had trespassed into their house in order to try and take forcible possession of the plot. The two appellants had received injuries.

Their mother Gindori was also injured. Thereafter, injuries were inflicted on the complainant party in self-defence. The weapons mentioned by the eye witnesses had not been recovered. Hawa Singh and Parkash were stated to be armed with swords but the weapons recovered from their possession are axes (kulharis), Jagdish was stated to be armed with sword but a rapri was recovered him and Devender @ Raju. Lastly, it was submitted that a fight had taken place between the two groups in which blows were exchanged and injuries were received on both sides, unfortunately Man Singh's injuries proved to be fatal.

Any discussion on the merits of the appellants' case and the nature of offences committed by the appellants must naturally begin by a close analysis of the injuries inflicted as this would enable the Court to roughly re-construct what really happened.

According to Dr. Rakesh Kumar (PW-4), Man Singh had two Crl. Appeal No. 143 DB of 2005 8

incised wounds on the head measuring 2-1/2 x inch and 3 x 1 inch. It was the second injury which had resulted in fracture of the perital and frontal bones which caused extensive damage to the brain. The Medical Officer also recorded a third injury but this was only clotted blood without any external injury, therefore, Man Singh really had only two external injuries.

The presence of clotted blood was not an injury at all. Sajjan (PW-7) had a lacerated wound on the scalp. On x-ray examination, this injury was declared simple. Furthermore, Sajjan had an abrasion on the little finger of his left hand, a lacerated wound on left leg with fresh bleeding and bruise thumb of the right hand. The thumb injury was also subjected to x-ray examination and found to be simple. There was a lacerated wound on scalp and fresh bleeding. There was also bruises on back, and right side of chest.

All injuries of Sajjan were sample.

Sajjan's wife Anju (PW-8) had a lacerated wound on her right hand but after x-ray examination it was declared to be simple. Sajjan's grand mother Sarti had a lacerated wound measuring 4 cm x 5 cm on front oparietal region, which too was declared simple. Lastly, Man Singh's brother Azad Singh had a rounded lacerated wound measuring 5 x 5 cm on right fore-arm, a lacerated wound on right wrist and an abrasion on left side of cheek. All injuries were simple. It may be important to note that neither Sarti nor Azad were produced as witnesses at the trial.

At this stage the injuries on the accused may also be perused.

Gindori had a lacerated wound on the scalp, a bruise on the back and a bruise on the chest. Jagdish had a lacerated wound on the scalp with fresh bleeding, bruises on fore-finger, left arm, left chest, right chest and abrasion on the thumb of right hand. Devender @ Raju had a lacerated Crl. Appeal No. 143 DB of 2005 9

wound on the scalp with fresh bleeding, abrasion on the fore-finger of left hand and an abrasion on the left knee. Devender's finger had also got dislocated.

From the above, it would be obvious that the injuries on Sajjan, Anju, Sarti and Azad were certainly more numerous than the injuries of Gindori, Jagdish and Devender but the nature and location of injuries on all these persons were quite similar.

Nevertheless, it is surprising to note that there were two injuries on the head of Man Singh and not three as testified by the Medical Officer and the witnesses, who unanimously stated that Hawa Singh, Parkash and Jagdish had inflicted injuries on Man Singh's head with swords. The third injury on Man Singh was just a clot of blood without any external injury.

Learned counsel for the appellants tried to put forth an argument based on the principle that the injuries on the accused must be explained. In this respect, it may be pointed out that firstly, there is no such binding principle and secondly, two of the appellants, who admitted their presence at the spot and who also received injuries, had made no attempt to explain how the members of the complainant party had been injured. What the accused themselves had not explained cannot be demanded from the prosecution witnesses. The accused gave no explanation of the injuries on the complainant party, therefore, the prosecution was not bound to give any explanation in this regard.

Quite interestingly the investigator also recorded three injuries on the head of the deceased in column 10 of the inquest report. Therefore, the argument that was raised that the witnesses too went on to mention that the deceased had received three injuries on the head. This actually led to Crl. Appeal No. 143 DB of 2005 10

the injuries being ascribed to three independent appellants when Sajjan's statement was recorded and FIR was registered. However, the reality was exposed when the post-mortem was conducted and only two injuries were found on the head. Such careless investigation can give no benefit to the appellants and nor should it harm the prosecution case. The argument that the investigator had adopted an inquest oriented approach and that the witnesses had also followed that approach is an argument which is not available to the appellants in this particular case. The foremost reason for rejecting this argument is that the prosecution case was based on eye witness account of two injured witnesses--Sajjan and Anju. As already observed above, the defence had not given any plausible explanation for the injuries on Sajjan, Anju, Sarti and Azad. Therefore, the defence version deserves to be rejected and the eye witness account regarding the place of occurrence, date and time must be accepted. However, the prosecution evidence did suffer from the flaw that three injuries on the head of Man Singh were ascribed to the appellants whereas there were only two injuries.

This necessarily meant that third swordman had not used his sword on the head of Man Singh. This appellant was Jagdish. However, Jagdish and Devender @ Raju were present at the spot as they both had received injuries. The other two appellants, namely, Balwan and Murti had not received injuries, therefore, it is possible that they may have been falsely or exaggeratedly implicated.

The prosecution also failed to establish the date when the appellants were convicted for the earlier incident of 1993, but it is possible that they had been recently convicted, a few days or few months before the present incident. The reason for saying this is that the appellants had Crl. Appeal No. 143 DB of 2005 11

attacked Man Singh and his family to teach them a lesson for their conviction for the earlier incident. The appellants did not seem to have forgiven Man Singh and his family for that incident and picked up arms once again to teach them a lesson. It would have been helpful to know the details of the earlier incident, names of the accused, weapons used by them, the parts played by them and the names of the injured persons in order to find out who out of the appellants had played the main role in that incident and who out of the complainant party had been the main witness.

There were also superficial contradictions between the weapons stated to be held by the accused and the weapons recovered from them.

None of the swords held by Hawa Singh, Parkash and Jagdish were ever recovered. Surprisingly,axes were recovered from Hawa Singh and Parkash, rapris from Jagdish and Devender @ Raju and a lathi from Balwan. In the present case the eye witness account has been accepted in the main. Non recovery of weapons or recovery of different weapons may not help the appellants. In our opinion, nothing turns on these discrepancies. The investigator may not always recover the weapons of offence. The accused may not always surrender the actual weapons and may some time hand over different weapons. The prosecution case cannot suffer on this account.

The present case was a result of a free and open fight in which weapons were used by both parties and there were injuries on both sides.

However, the appellants were quite clearly the aggressors. They inflicted far more injuries than they received. Therefore, we hold that Man Singh was given blows on the head, one each by Hawa and Parkash with their respective swords. Jagdish and Devender @ Raju used their respective weapons to inflict injuries on Sajjan, Anju, Sarti and Azad. Jagdish and Crl. Appeal No. 143 DB of 2005 12

Devender @ Raju also received injuries in return. As regards, the role played by Balwan, both the witnesses described that he and Devender @ Raju had given lathi blows to Sajjan. The medico legal report of Sajjan showed that he had received a lacerated wound on the scalp and fresh bleeding was present. The injury was simple in nature. According to Sajjan himself, Balwan had given him a blow with a lathi on his forehead above the left eye but the medico-legal report did not reveal any injury which may correspondence to this statement. We do not find that this is a case in which the common object of the assembly of the appellants was to commit Man Singh's murder. The object of the assembly may have been to beat Man Singh and his family again as had been done earlier in 1993. If this is so then only Hawa Singh and Parkash were guilty under Section 302 read with Section 34 IPC for Man Singh's murder committed in furtherance to their common intention. The remaining accused/appellants are acquitted of 148, 320/149 IPC.

Jagdish and Devender @ Raju could have only been held guilty for inflicting injuries on the witnesses. All the injuries were simple in nature, therefore, they should have been held guilty only under Section 323 read with Section 34 IPC and under Section 452 IPC. The case against Balwan and Murti has not at all been established beyond doubt.

Resultantly, the appeal is partly allowed. Balwan and Murti are acquitted outright of all charges. They shall be released forthwith unless wanted in some other case. Conviction of Hawa Singh and Parkash is converted into one under Section 302 read with Section 34 IPC and Section 452 IPC. They are acquitted of the other charges. However, the sentences as awarded under Section 302 read with Section 149 IPC shall stand Crl. Appeal No. 143 DB of 2005 13

converted to sentences under Section 302 read with Section 34 IPC and sentences under Section 452 IPC shall stand as before. All sentences shall run concurrently.

The appeal by Jagdish and Devinder @ Raju are also partly allowed. They stand convicted only under Section 323/34 IPC and 452 IPC and shall be sentenced to the same imprisonment as awarded by the learned trial court for these offences. They shall be released forthwith if they have undergone their sentences under Section 323 read with Section 34 and 452 IPC. Balwan and Murti are acquitted of all charges.

The appeal stands disposed of accordingly.

(K.S. GAREWAL)

JUDGE

24.10.2006 (R.S. MADAN)

prem 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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