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THE STATE OF HARYANA versus PIRTHI & ANR

High Court of Punjab and Haryana, Chandigarh

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The State of Haryana v. Pirthi & Anr - CRA-D-54-DBA-1997 [2007] RD-P&H 1077 (30 January 2007)

Criminal Appeal No. 54-DBA of 1997 1

IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH

CRIMINAL APPEAL NO. 54-DBA OF 1997

DATE OF DECISION: FEBRUARY 07,2007

The State of Haryana ..Appellant

Versus

Pirthi and another ..Respondents

CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE H.S.BHALLA

PRESENT:-Mr. P.S.Sullar, Deputy Advocate General, Haryana for the appellant.

Mr. R.S.Cheema, Senior Advocate

with Ms. Tanu Bedi, Advocate

for the respondents.

H.S.BHALLA, J.

This appeal is the outcome of the impugned judgment dated 12.1.1996 passed by Additional Sessions Judge, Sonipat, by virtue of which he acquitted accused-respondents, namely, Pirthi and Om Parkash sons of Jage Ram, residents of village Kilorad.

Aggrieved against this judgment, the State of Haryana has knocked the door of this Court praying for acceptance of the appeal and setting aside the judgment of acquittal passed in favour of the accused-respondents by Additional Sessions Judge, Sonipat.

A synoptical resume of the prosecution case is as under:-

On receipt of medical ruqas, Ex. PD and Ex. PE, when the police party headed by SI/SHO Nar Singh (PW-16) was on patrolling duty and reached near the General Hospital, Sonipat, they Criminal Appeal No. 54-DBA of 1997 2

moved an application, Ex. PF, before the doctor for ascertaining the condition of Tek Ram for making statement, whereupon Dr. Arun Garg declared him fit for making statement vide his opinion Ex.

PF/1. He then recorded statement of Tek Ram mentioning therein that he is the resident of village Killoard. He used to cultivate the land on Batai after taking the land of others. He has three daughters, out of them, two are married and one is unmarried. He has two sons, elder is Rohtash and younger is Satish. Both the boys are unmarried.

On 16.3.1992 an altercation took place among the womenfolk of both the sides over some wooden sticks, which was patched up on account of intervention of the village panchayat. On 17.3.1992 Pirthi and Om Parkash sons of Jage Ram, Harijan, after consuming liquor, came to their house about 6.00 P.M. and gave abuses and they also stated that they would teach a lesson to them and their ladies for lifting the fire woods. On persuation, they went from there on that day but stated that they were to celebrate the Holi next day by killing them. The complainant narrated this matter to the village Sarpanch also who assured him that he will make the accused understand.

On 18.3.1992 at about 6.00 P.M. complainant Tek Ram was smoking Hukka along with his brother Sarup Singh and sons Rohtash and Satish in the gali in front of his house. Both the accused, namely, Pirthi and Om Parkash came there with ballams in their hands. They started abusing and saying that they were to teach them a lesson over the previous altercation and were to celebrate Holi by killing them. Pirthi accused then inflicted a blow with a ballam, which fell on the right side of the chest of Tek Ram whereas Om Parkash accused gave a ballam blow on his right shoulder. When Criminal Appeal No. 54-DBA of 1997 3

Rohtash attempted to intervene, then Pirthi inflicted a ballam blow on the left side of his chest. Then on hearing the alarm, persons from the neighbourhood were also attracted to the spot. Both the accused fled away from the spot along with their ballams. The injured Tek Ram and Rohtash were then removed to the General Hospital, Sonipat in the four-wheeler of one Raghbir. After reaching General Hospital, Sonipat, injured Rohtash succumbed to his injury. On the basis of this statement, Ex. PA, a formal FIR, Ex. PA/1 was recorded on the same day at 10.00 P.M. Sub Inspector Nar Singh (PW-16) conducted inquest proceedings vide Ex. PO on the dead body of Rohtas deceased and then proceeded to the place of occurrence and prepared rough site plan Ex. PP. He also lifted the blood stained earth. After completing necessary formalities, accused were challaned and sent up for a trial.

Accused were charge sheeted under sections 302/307/324 read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial.

Prosecution, in order to prove its case, examined Ishwar Singh, ASI (PW-1), Qila Singh, MHC (PW-2), Ishwar Singh, Constable (PW-3), Anil Kumar, Draftsman (PW-4), Vinod Kumar, Constable (PW-5), Dr. Arun Garg (PW-6), Dr. Primila Jain (PW-7), Dalbir Singh, Constable (PW-8), Suraj Mal (PW-9), Tek Ram (PW- 10), Satish (PW-11), Jai Singh, Sarpanch (PW-12), Som Nath, SI (PW-13), Sahab Singh, ASI (PW-14), Dr. K.K.Dua (PW-15), and Nar Singh, Inspector (PW-16).

In their statements recorded under Section 313 of the Code of Criminal Procedure, the appellants denied the allegations of Criminal Appeal No. 54-DBA of 1997 4

the prosecution and pleaded that they have been falsely Implicated in this case. Appellant Pirthi has stated that actually on 18.3.1992 he had come from outside after the discharge of his duties and reached his house at 6.30 P.M. He further disclosed that at that time he noticed that Tek Ram, Satish, and Sarupa armed with lathis and Rohtas deceased armed with a ballam were causing injuries to his co-accused Om Parkash and his other family members namely, Ishwar, Dalipa, Chameli and Ratni and that in that process, his nephew Ishwar snatched ballam from the hands of Rohtas and in the right of private defence, he caused injuries to Tek Ram and Rohtas.

He also stated that he himself did not participate in this incident out of fear and police did not take any action against the complainant party even though his family members were also admitted in the hospital regarding the treatment of their injuries. This very stand was adopted by the other accused Om Parkash who also added that he himself was caused a lathi blow on his head by Tek Ram on account of which he had fallen down and turned unconscious. Accused- appellants opted to produce evidence in defence. They examined Smt. Ratni, wife of Pirthi accused, as DW-1.

Learned Deputy Advocate General appearing for the State of Haryana has vehemently argued that the learned trial Court has arrived at a wrong conclusion in acquitting the respondents- accused contrary to the ocular accounts given by Tek Ram (PW-10), father of deceased Rohtash and Satish (PW-11), the brother of the deceased, the injured-eye witnesses to the occurrence, by misreading and misappreciating their testimony on the record. In fact, both the appellants had inflicted injuries on the person of Tek Ram Criminal Appeal No. 54-DBA of 1997 5

(PW-10) by means of a ballam each, which were holding in their hands, whereas solitary fatal blow on the person of Rohtash deceased was inflicted by appellant Pirthi. The fact of causing injuries on the person of the injured eye witnesses, as referred to above, has been corroborated by medical evidence. As per the opinion of Dr. K.K.Dua (PW-15), cause of death of Rohtas was the chest injury inflicted by a sharp edged weapon, which was ante- mortem in nature and sufficient to cause death in the ordinary course. Further, as per the opinion of Dr. Arun Garg (PW-6), injury No.1 on the person of Tek Ram (PW-10) was declared dangerous to life. Learned Deputy Advocate General appearing for the appellant- State has submitted that both the accused-respondents were liable to be convicted under Sections 302/307 read with Section 34 of the Indian Penal Code.

On the other hand, learned counsel appearing for the respondents-accused has vehemently argued that the injuries caused by the respondents or the members of their family had to cause injuries to Rohtash, deceased, and Tek Ram (PW-10), the father of the deceased, in exercise of their right of private defence, especially when the complainant party, namely, Tek Ram, Satish and Sarupa armed with lathis and Rohtash deceased armed with a ballam entered into the house of Pirthi accused and started causing injuries to them and in that process, finding no other alternative, nephew of the accused, snatched the ballam from the hands of Rohtash and inflicted injuries with the same on the persons of Rohtash and Tek Ram in the right of private defence. In their statements recorded under Section 313 of the Code of Criminal Criminal Appeal No. 54-DBA of 1997 6

Procedure, the same stand has been taken by the accused that it was the complainant party who was the aggressor, having deadly weapons in their hands and caused injuries to them, which fact has also been established on the record by medical evidence wherein as many as 15 injuries are shown to have been inflicted by the members of the complainant party, whereas only three injuries are shown have been caused by the accused party. Learned counsel appearing for the accused-respondents has further pointed out that on 18.3.1992 Dr. B.D.Chaudhary medico-legally examined Smt. Ratni, Ishwar Singh, Chameli, Dalip Singh and Om Parkash and found various injuries on their persons vide medico-legal reports, Ex. DA to Ex. DE respectively. None of these injuries had been explained by the prosecution witnesses, which clearly rendered the entire genesis of the prosecution version doubtful.

The contentions raised by the learned counsel appearing for the parties and the observations made by the learned trial Court have to be examined minutely in the light of the evidence available on the record.

Before we proceed further in the matter, we would like to observe that it is well settled law that order of acquittal can be interfered with only if there is an absolute assurance of the guilt of the accused upon the evidence on record and the High Court would not be justified in interfering with the order of acquittal, unless the same is found to be perverse and the order of acquittal can be set aside if the view taken by the learned trial Court is perverse. We would also like to observe that if on over-all appreciation of evidence available on record, two views are possible and when on appreciation Criminal Appeal No. 54-DBA of 1997 7

of evidence, a particular view has been preferred by the learned Additional Sessions Judge, Sonipat, and when the findings cannot be said to be perverse merely because another view is possible, the High Court would not be justified in interfering with the acquittal order recorded by the learned trial Judge. The entire case as set up by the prosecution on the record of the case as also the plea of defence supported by evidence produced in defence has to be scrutinized in the light of the evidence available on record and keeping in view the observations made above.

Both the witnesses, namely, Tek Ram, father of deceased Rohtash and Satish, brother of the deceased, stepped into the witness box as PW-10 and PW-11 respectively. They have made depositions in the similar fashion and supported the same version, which was contained in the FIR, Ex. PA. None of the witnesses could be able to point out either in the FIR or in their testimony when they appeared into the witness as to how and in what circumstances, the members of the accused party had sustained as many as 15 injuries on the persons of Ratni Devi, wife of accused Pirthi Singh, Smt.

Chameli Devi, wife of accused Om Parkash, Ishwar Singh, nephew, Om Parkash accused and Dalip Singh, another brother of the accused. From the medical evidence available on the record, it reveals that as many as five persons received a total number of 15 injuries. The learned trial Court has rightly observed that it cannot be said that these injuries were self suffered, inasmuch as, some of them are on the parietal region of the injured and moreover, no such suggestion was put to Dr. B.D.Chaudhary (DW-2) that these injuries Criminal Appeal No. 54-DBA of 1997 8

were self suffered by these injured with a view to mitigate the prosecution case under Section 302 of the Indian Penal Code.

In the facts and circumstances of the case, now the question that survives for consideration is, as to whether the injuries on the persons of the five members of the accused party have been explained by the prosecution or not? In order to ascertain this aspect of the matter, we would like to go through the FIR, Ex. PA, which is quite silent about these injuries on five persons from the side of the accused. The entire case of the prosecution casts a cloud of suspicion as to how these five persons were got injured in the said incident. Tek Ram (PW-10) did not explain these injuries even during the trial. He kept mum in his examination-in-chief. During cross- examination, he attempted to explain the same by stating that the women folk of his side had thrown some brick-bats in this incident and some of these brick bats must have hit the injured persons, but the version put forward by this witness cannot be believed because in the FIR there is no mention of any brick bat. Had there been any mention regarding the receipt of injuries by any member of the family of the accused with a brick bat, there was no reason for the prosecution to collect the same from the spot by SI Nar Singh (PW- 16) to prove this fact that brick bats were also used by either of the parties in the fight took place between the parties. Moreover, no person from the locality was joined as independent witness, though they were assembled at the spot, to establish this fact that the members of the accused party had received injuries by brick bats.

The point to be determined before the trial Court was that whether the occurrence took place in the manner as described by the Criminal Appeal No. 54-DBA of 1997 9

prosecution or in the manner as described by the defence and what was the effect of non-explanation of the injuries by the prosecution on the five members of the accused party? The learned trial Court has dealt with the point in issue elaborately on the basis of the material available on the record and arrived at a conclusion that the prosecution has suppressed the genesis of the occurrence and has not presented the real picture before the court. It was the defence, who put up a real picture as to how and in what manner the occurrence took place and how they were implicated in the instant case. The record further spells out that it was the complainant party, who was the aggressor and not the accused. They, under the fear of some untoward incident, in exercise of their private defence, inflicted injuries on the person of the deceased, which ultimately proved to be disastrous resulting in his death due to chest injury suffered by him.

Prior to this occurrence, an altercation also took place between the parties, but that was got patched up by the intervention of the respectables of the village. In such like circumstances, the approach adopted by the learned trial Court while dealing with this point, in our considered view, is correct and no interference is called for.

We also do agree with the view expressed by the learned trial Court that the prosecution has not explained the injuries of the members of the accused party and we feel satisfied that the prosecution has suppressed the genesis and origin of the occurrence and has not presented true version before the Court. Defence has explained the injuries of the accused, which are corroborated by medical evidence. In such like circumstances, we find serious infirmities and doubts which cast a dent in the prosecution version.

Criminal Appeal No. 54-DBA of 1997 10

Omission on the part of the prosecution to explain the injuries on the persons of the accused party assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of prosecution one. Thus, in our considered view the testimony of these two eye-injured witnesses, namely, Tek Ram (PW-10) and his son Satish (PW-11) have not been able to depict the actual incident properly as the same do not explain the injuries on the persons of five members of the accused party. In such like circumstances, the learned trial Court has rightly observed that counter defence version that actually Tek Ram, Satish, Sarup Singh and Rohtas deceased had come to the house of the members of the accused party and in that process Tek Ram and Rohtas had to be caused injuries in the right of private defence becomes highly probable. Further, we do agree with the view expressed by the learned trial Court that once the defence version that the injuries on the person of Tek Ram and Rohtas were perhaps caused by the accused party in the right of private defence is accepted, then the accused have to be acquitted straightaway as it cannot be the case of the prosecution that the accused party had exceeded in the matter of exercise of the right of private defence. As has been discussed above, the complainant party had received a total number of three injuries, while the accused party had received a total number of 15 injuries.

In view of the above discussion, appeal filed by the State of Haryana fails and is hereby dismissed. The judgment dated 12.1.196 passed by Additional Sessions Judge, Sonipat, whereby he Criminal Appeal No. 54-DBA of 1997 11

acquitted both the accused-respondents, by giving them the benefit of doubt, of the charges levelled against them, is hereby affirmed.

( H.S.BHALLA )

JUDGE

February 07, 2007 ( ADARSH KUMAR GOEL )

vk 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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