Attar Singh and others vs State of Haryana

S.S. Grewal, J.

This appeal is directed against the order of Sessions Judge, Rohtak, dated 28.5.1992 whereby Chhatar Singh appellant was convicted under Section 302 I.P.C. While his coappellant Attar Singh, Kewal and Kirpa Ram were convicted under Section 302 read with Section 149 of the Indian Penal Code for committing the murder of Jai Narain, Attar Singh was also convicted under Section 307 of the Indian Penal Code for firing towards Subha Chand, Dilbagh Singh and Baldev Singh PWs and Kamlesh and Savitri, whereas co appellants Chhatar Singh, Kewal Ram and Kirpa Ram were convicted under Section 307 read with Section 149 of the Indian Penal Code. All the aforesaid four appellants were further convicted under Sections 148, 325 read with Section 149 I.P.C. and 323 read with Section 149 of the Indian Penal Code. Vide order dated 10.6.1992 Chhatar Singh appellant was sentenced to undergo imprisonment for life under section 302 of the Indian Penal Code while Attar Singh, Kewal Ram and Kirpa Ram appellants were sentenced to undergo imprisonment or life under Section 302 read with Section 149 of the Indian Penal Code. Attar Singh appellant was sentenced to undergo rigorous imprisonment for seven years under Section 307 of the Indian Penal Code while Chattar Singh, Kewal Ram and Kirpa Ram appellants were sentenced to undergo rigorous imprisonment for five years each under section 307 read with Section 149 of the Indian Penal Code. All the four appellants were further sentenced to undergo rigorous imprisonment for one year under section 148 of the Indian Penal Code rigorous imprisonment for three years each under section 325 read with Section 149 of the Indian Penal Code and rigorous imprisonment for one year each under section 323 read with section 149 of the Indian Penal Code. All the substantive sentence of imprisonment were ordered to run concurrently by the learned trial Court. Mahi Pal, Anup Singh, Satish Chandan and Surender coaccused of the aforesaid appellants were acquitted by the learned trial court.

Aggrieved against the aforesaid order of acquittal Kamlesh wife of Jai Narain deceased filed Criminal Revision No. 778 of 1992 for awarding compensation to the tune of Rs. 5,00,000/ to the revision petitioner. The aforesaid revision was ordered to be listed with the main appeal qua the enhancement of sentence regarding convicted accusedrespondents only. Since common questions of law and fact are involved, both the appeal as well as the revision shall be disposed of by common judgment.

In brief facts of the prosecution case as emerged from the first information report lodged by Baldev Singh, first informant and brother of Jai Narain deceased, are that in the year 1980, the first informant along with his brothers Ram Kumar, Subha Chand, Jage Ram and Jai Narain deceased along with their sister''s son Sat Pal resident of Marot purchased 50 Killas of land. Sat Pal who had 1/5th share in the aforesaid land sold his share in favour of Chhatar Singh, Attar Singh and Kewal Ram appellants. The complainant party which was in possession of the said land filed a suit for preemption, whereas the present appellant Attar Singh and others filed a suit for partition.

The occurrence took place on 7.6.1989 at about 8.30 A.M. when Subha Chand, Jai Narain and Dilbagh Singh their relation went to their fields for working. Shortly before the occurrence Jai Narain was watering the plants with a sprinkler and for this purpose he went ahead to change the line of the sprinkler. At that time Kewal Ram and Chhatar Singh appellants armed with Ballams, Attar Singh appellant armed with a pistol, Kirpa Ram appellant armed with Jaili and 45 other persons armed with Lathis and Jailis emerged from the eucalyptus trees standing nearby. On seeing them Jai Narain came running towards the place where Subha Chand and Dilbagh Singh were already standing. Jai Narain had hardly covered a short distance and reached near the place where guava trees were standing, Chatter Singh appellant came forward and gave a blow with Ballam to Jai Narain hitting him on his left side of the neck. Kewal Ram appellant then gave a blow with a Ballam to Jai Narain hitting him on his chin. Jai Narain fell down on receipt of the said injuries shortly thereafter Chhater Singh gave a second blow with his Ballam hitting Jai Narain on the upper portion of his head. Kewal Ram appellant gave a blow with a Ballam to Jai Narain on the back side of his head, Chhatar Singh gave third blow with a Ballam to Jai Narain hitting him on the upper portion of his head. Kirpa Ram gave a blow with Jaili lathiwise to Jai Narain hitting him in his waist. Subha Chand, Dilbagh Singh along with Smt. Kamlesh wife of Jai Narain and Smt. Savitri wife of Subha Chand who had come there to serve meals to other persons of the complainant party, rushed towards Jai Narain to rescue him. Thereupon Kirpa Ram appellant gave a lathiwise blow with Jaili hitting Baldev Singh on his waist and unknown young man gave a blow with a lathi on the left thumb of Baldev Singh PW. Another youngman who was wearing a chequered design shirt and a Jean pant gave a Lathi blow on the front of the right leg of Baldev Singh PW. The aforesaid accused inflicted injuries with their respective weapons to Subha Chand, Dilbagh Singh as well as Kamlesh and Savitri. Attar Singh appellant fired two shots from his pistol with the intention to kill the members of the complainant party but the same missed the target. In the meantime on hearing the alarm raised by the complainant party, Bani Singh and Sultan Singh came to the spot from the adjoining fields. On seeing them all the aforesaid accused ran away from the spot along with their respective weapons. In their selfdefence the complainant party also caused injuries to one or two unknown persons. Sultan Singh and Bani Singh took the injured in their tractor to Civil Hospital, Jhajar and as they reached near the fate of the said Hospital Jai Narain succumbed to his injuries. According to the first informant Baldev Singh, his brother Jai Narain was murdered because of grudge regarding the land in dispute and on this account the injuries were inflicted to the complainant party in order to kill them. It was also mentioned in the first information report that the murder of Jai Narain was planned at the house of Mehar Ram, earlier.

On receipt of ruqa from Civil Hospital, Jhajjar, ASI Raj Kumar went there and recorded the statement of Baldev Singh at 12.20 P.M. on the same day and on its basis formal first information report was subsequently registered at the Police Station at 1.20 P.M. and the special report reached the Ilaqa Magistrate at Jhajjar at 6.05 P.M. after the postmortem examination had been conducted at 4.30 P.M. that day. He also recorded the statements of the witnesses and prepared inquest report. At about 4 P.M. SI Gian Singh came to Civil Hospital, Jhajar and took over the investigation from ASI Raj Kumar. He also went to the spot and inspected the same, lifted blood stained earth from near the spot which was duly sealed and taken into possession. SI Gian Singh arrested Chhatar Singh, Kewal Ram and Kirpa Ram appellants on 12.6.1989 while Attar Singh was arrested on 13.6.1989 when he surrendered in the Court. In pursuance of the disclosure statements made by the appellants, the alleged weapons of offence were recovered from them. After completion of the investigation, the appellants and their other coaccused were challenged, tried, convicted, sentenced on acquitted, as stated earlier.

Appellants when examined under Section 313 of the Criminal Procedure Code, denied the prosecution allegations appearing in evidence against them and pleaded false implication. According to Attar Singh appellant, Sat Pal through his wife had purchased 50 Killas of land jointly with the deceased and other members of the complainant party. His wife got partition of her share in the land and started cultivating the same and subsequently sold the same to the present appellants as the deceased and other members of the family of the complainant party were only willing to purchase the share of Smt. Savitri wife of Sat Pal on nominal price. The complainant part, filed a suit for pre emotion whereas the accused party filed a suit for partition and their action was not liked by the complainant party; that death of Jai Narain was the result of mutual infighting amongst the family members and taking advantage of the injuries, Jage Ram brother of Baldev Singh a practising lawyer at Jhajjar conspired with the local police in order to pressurise Attar Singh and other accused to sell their land to the complainant party at a nominal price, and falsely implicated them in this case. According to Attar Singh he was serving as Assistant Sanitary Inspector in Municipal Corporation Delhi Najafgarh Zone and performed his duty on, that date. After he came to know about the false implication for the members of his family, he sent telegrams to the higher authorities but could not get justice and he surrendered in the Court and that he was falsely implicated to spoil his service career. Chhatar Singh appellant also pleaded that he was serving in the Health Department of Delhi Administration as Dispenser and he performed his duty on that day in Pandwala Kalan Dispensary and he was falsely implicated, in order to spoil his service carrier. Kewal Ram appellant pleaded that he was about 65 years of age and is practically blind and can walk with the assistance of a helper and that he is innocent. Kirpa Ram appellant pleaded that he is an old and infirm person of 90 years and can walk with great difficulty and that too with the support of a stick and was falsely implicated in this case. The other coaccused of the appellants also pleaded false implication. The evidence produced by the appellants in their defence mainly relates to the plea of alibi sent up by Attar Singh and Chhatar Singh appellants concerning their presence at the station of their posting on the day of occurrence. Besides copies of the revenue record and copies of the orders of the revenue courts and those of civil courts were also tendered in evidence and thereafter the defence was closed.

The learned counsel for the parties were heard at length.

It is the prosecution case that the occurrence took place at 8.30 A.M. on 7th of June, 1989 whereas ASI Raj Kumar recorded the statement of Baldev Singh which was completed at 12.20 P.M. in Civil Hospital, Jhajjar and the formal first information report was started to be recorded at 12.35 P.M. and was concluded at 1.20 P.M. The complainant party along with the injured and Jai Narain deceased reached Civil Hospital, Jhajjar after covering a distance of 8 Kilometers at 9 A.M. and ruqa about their arrival was sent to the police station. All the injured PWs namely Subha Chand, Baldev Singh and Dilbagh Singh as well as Kamlesh wife of Jai Narain and Smt. Savitri wife of Subha Chand had been examined by Dr. S.C. Sharma, in between 11.25 A.M. and 1.20 P.M. It is true that the first anxiety of the injured would be to get themselves medically examined and also to ensure that the life of Jai Narain who was seriously injured could be saved. Jai Narain died when they reached near the gate of the Hospital. The special report in this case reached the Ilaqa Magistrate at Jhajjar at 6.05 P.M. The dead body of Jai Narain reached the Civil Hospital at about 10.30 A.M. and the postmortem examination was conducted at 4.30 P.M. on the same day. Taking all these factors into consideration we are of the view that there is some unexplained delay both in lodging the first information report, as well as in sending the special report to the Ilaqa Magistrate, and, thus there was ample time for the complainant party to make due deliberations and consultations to introduce a version of its own choice. Delay per se is, however, not fatal to the prosecution story and its only effect is that it puts the Court on its guard to scrutinize the prosecution evidence more thoroughly in material particulars. Thus it would be rodent to seek independent corroboration concerning the truthfulness of the prosecution story on material aspects of the case.

The prosecution, in the instant case, has alleged a definite motive. According to the prosecution, the complainant party had purchased 50 Killas of land in the year 1980. Sat Pal sister''s son of the deceased had 1/5th share in the said land through his wife which was subsequently sold in favour of Kewal Ram, Attar Singh and Chhatar Singh appellants vide registered sale deed dated 6th of September, 1988 i.e. about 9 months prior to the present occurrence. Copy of the plaint Ex. DW 10/A shows that after about three months of the present occurrence suit for preemption was filed by Ram Kumar brother of Baldev Singh, Subha Chand and Jai Narain deceased. Kewal Ram, Attar Singh and Chhatar Singh appellants filed civil suit for permanent injunction against Jai Narain deceased and his brothers Subha Chand, Ram Kumar, Baldev Singh and Jage Ram on 10.1.1989 that they were owners in possession of the suit land and Jai Narain (deceased) and his other codefendants be restrained from dispossessing, their, forcibly. On 13.2.1989. Sub Judge 1st Class, Jhajjar granted temporary in junction restraining the said defendants from interfering in peaceful possession of the plaintiffs over the suit property and the appeal against the aforesaid order was dismissed by Additional District Judge, on 10.3.1990. Obviously the civil suit has not been finally decided, nor, it is necessary for the purpose of present appeal to go into the question of merits and demerits of the cases set up by the parties before the Civil Court. Rather it is well settled that in criminal cases only question of actual physical possession of the land in dispute at the time when the occurrence takes place is of material consequence and not the title of the parties. However, from the afore said circumstances, it is quite apparent that the relations between the complainant and the accused party were already strained before the occurrence took place as the complainant party had staked its claim to the possession of the entire land including the portion which had been purchased by the accused party. It is significant to note that the suit filed by the accused party had not been finally decided and the subject matter of the said suit was still pending when the occurrence took place. It these circumstances an inference can reasonably be drawn that the accused party too had the motive to attack the complainant party.

The ocular account, in the instant case, rested on the testimony of Baldev Singh PW. 7, Subha Chand PW. 8 brothers of the deceased and Dilbagh Singh PW. 9 whose sister is married to Subha Chand aforesaid. All the three eyewitnesses have imprint of injuries on their person. Medical evidence reveals that Baldev Singh PW. 7 had four blunt weapon injuries on his person including a grievous injury on the left hand; Subha Chand PW. 9 had two injuries including an incised wound in the middle of the occipital region of the skull and Dilbagh Singh PW. 9 had two injuries including an incised wound on the head. The nature, extent and seats of the injuries of these three eye witnesses do not in any manner indicate that these could be selfinflicted or self suffered. Apart from these witnesses, Savitri wife of Subha Chand PW and Kamlesh widow of the deceased had also received injuries. Since both these witnesses were not produced by the prosecution and no injury on their person is attributed to the present appellants, we do not deem it necessary to deal with the prosecution version concerning the infliction of injuries on these two witnesses.

Baldev Singh, Subha Chand and Dilbagh Singh have given cogent reason for their presence at the spot at the time of the occurrence. Dilbagh Singh PW who is a close relations of the deceased was staying with the deceased and his brothers, about a month prior to the present occurrence for helping them in the agricultural operations. All these three eyewitnesses namely Baldev Singh, Subha Chand and Dilbagh Singh along with Jai Narain deceased had gone to the fields on their tractor. Thus the presence of all these three eye witnesses at the spot at the time of the occurrence is, quite natural, probable and convincing.

The main question which further arises for determination is about the credibility of these three eye witnesses concerning the truthfulness of the prosecution story. All the three eyewitnesses have given consistent version that the occurrence took place when Jai Narain deceased had gone to change the line of his sprinkler set, and in the meanwhile the appellants and their co accused came there, while armed with deadly weapons. On seeking the accused party coming Jai Narain deceased ran towards the place where Baldev Singh, Subha Chand and Dilbagh Singh PWs were standing. He was followed by the accused party and as he was at a short distance from the aforesaid witnesses, Chhatar Singh appellant gave a blow with his Ballam on the left side of the neck of Jai Narain deceased, whereas, Kewal Ram gave Ballam blow to Jai Narain on his chin and on receipt of the said injuries Jai Narain fell down on the ground. While Jai Narain was lying on the ground Chhatar Singh gave another Ballam blow hitting Jai Narain on the upper portion of his head and Kewal Ram gave a Ballam blow on the left side of the head of Jai Narain deceased. Chhatar Singh appellant gave another Ballam blow to the deceased on his head and Kirpa Ram gave a Jaili blow Lathiwise on the back of the deceased. At that stage Baldev Singh, Subha Chand and Dilbagh Singh PWs along with Kamlesh and Savitri who too had reached the place of occurrence in order to serve meals came forward in order to save Jai Narain. At that time Kirpa Ram accused gave a Jaili blow Lathiwise to Baldev Singh on his back, whereas, one of the coaccused (Mahipal) of the appellants gave a Lathi blow on his left thumb. One of the coaccused of the appellants (Anoop Singh) gave a Lathi blow to Baldev Singh on his right calf. Thereafter Attar Singh appellant fired twice from his pistol towards the complainant party but none was hit. The accused party also caused injuries to Subha Chand PW. 8 and Dilbagh Singh PW. 9 as well as to Kamlesh and Savitri aforesaid with their respective weapons. Sultan Singh and Bani Singh who too came to the spot from their nearby fields, also witnessed the entire occurrence.

The medical evidence on the records lends independent corroboration to the ocular account given by the three eyewitnesses produced by the prosecution as far as presence and participation of Chhatar Singh and Kewal Ram appellants is concerned injuries on the left side of the neck, upper portion of the head and two injuries on the head of the deceased attributed to Chhatar Singh with a Ballam and injuries on the chin and back of the head of the deceased attributed to Kewal Ram appellant find ample corroboration from the medical evidence on the record. Kirpa Ram appellant is stated to have given a Jaili blows lathiwise on the back of Jai Narain deceased and a Jaili blow Lathiwise on the back of Baldev Singh PW during the entire occurrence, whereas, the rest of the injuries of Baldev Singh, Subha Chand and Dilbagh Singh PWs as well as Kamlesh and Savitri are attributed during the trial to the accused who had already been acquitted by the learned trial court. Thus, we do not deem it necessary to go into minute details concerning the manner in which the said eyewitnesses of Smt. Kamlesh and Savitri received injuries at the hands of the accused as no appeal against the acquittal of the said accused has been filed or admitted. The revision petition filed by the complainant party only relates to the quantum of sentence to be awarded to the appellants. We are of the firm view that all the three eyewitnesses and Smt. Kamlesh and Savitri received injuries during the same occurrence in which Jai Narain deceased received injuries at the hands of Chhatar Singh and Kewal Ram appellants.

However, taking into consideration, the nature, extent and the manner in which Baldev Singh PW and Jai Narain deceased allegedly received injuries at the hands of Kirpa Ram appellant, who was armed with a Jaili, in our view, the said injuries could not be caused with a Jaili blow given lathiwise as deposed to by the eyewitnesses. Length of the said injury in 30 cms. It is the prosecution case itself that Baldev Singh PW had received two other injuries at the hands of the accused who were armed with Lathis. Injury on the back of Baldev Singh PW could be caused by a Lathi and not by Jaili (a blunt weapon with twin or more forks which are blunt pointed at the ends). In case Jaili had been used Lathiwise then the nature and extent of injuries would have been quite different. The only part attributed to Attar Singh appellant at the fag end of the occurrence is that he fired from his pistol twice after Jai Narain deceased and others had already received injuries, without causing any injury. These is no reliable or independent circumstance to lend corroboration to the ocular account concerning the role attributed to Attar Singh appellant. Thus the presence and participation of Kirpa Ram and Attar Singh appellants during the entire occurrence seems doubtful. In this part of the country there is an unfortunate tendency to rope in innocent with the guilty. Thus as an abundant caution giving the benefit of doubt, we hereby acquit Kirpa Ram and Attar Singh appellants.

Chhatar Singh appellant also raised the plea of alibi that he was serving in Health Department of Delhi Administration as Dispenser and performed his duty on the day of occurrence in Pandwala Kalan Dispensary. The evidence produced by the defence qua the aforesaid to plea taken by Chhatar Singh appellant is not sufficient to strictly prove the plea of alibi. Admittedly the occurrence took place prior to the office hours and the possibility that Chhatar Singh appellant could not be present at the spot at the time of the occurrence has not been excluded. The plea raised by Kewal Ram appellant that he had weak eye sight or that he could not take part in the occurrence has not been substantiated on the record. As such we have not the least hesitation in rejecting the plea of alibi raised by Chhatar Singh appellant and plea of false implication taken by Kewal Ram appellant.

Faced with this situation it was submitted by the learned counsel for Chhatar Singh and Kewal Ram appellants that both the appellants had acted bona fide in exercise of right of private defence of person and property as the complainant party was the actual aggressor and not the accused party. It is true that in the instant case Chhatar Singh and Attar Singh appellants had specifically pleaded plea of alibi. However, in view of the authority of the apex Court in Gottipulla Venkata Siva Subbrayanam and others v. The State of Andhra Pradesh and another, AIR 1970 SC 1079 it was observed that the fact that the plea of selfdefence was not raised by the accused and that he had on the contrary pleaded alibi did not preclude the Court from giving to him the benefit of the right of private defence, the appellants cannot be estopped from raising such plea.

The learned counsel for the appellants referred to the stay order granted by the Civil Court in favour of the accused party whereby the complainant party had been restrained from interfering in the possession of the accused party in respect of land purchased by the accused party out of the joint holding in which the complainant party had admittedly 4/5th share. Assuming that the accused party was in possession of the land purchased by them, there is no legal, cogent or reliable evidence on the record to show that the main occurrence actually took place inside the land in possession of the accused party. The site plans Ex. PU and Ex. PP show that the place from where the blood was lifted is at point ''A'' situated in Killa No. 4 well inside the land in possession of the complainant party and quite close to their tube well and guava trees in their fields. From the perusal of copy of Jamabandi Ex. D. 8 for the year 198889 concerning the land purchased by the accused party, it is quite apparent that Killa No. 4 from where the blood stained earth had been lifted was not purchased by the accused party who have specifically claimed possession only with regard to the land actually purchased by them in specific Khasra Nos.

It was further submitted by the learned counsel for the appellants that Bijender Singh PW 2 has admitted that the blood stained earth was lifted from the eastern side of the field of guava trees, and some of the blood stained earth was at one point and there was a line (trail) of blood leading to the main blood stained earth and that the trail of blood was coming from the side of East and covered a distance of 30 to 32 paces and that the occurrence originated in the nearby field in possession of the appellants. The argument is devoid of any merit. The statement of Bijender Singh on this point which has been made during the trial for the first time cannot be relied upon. It is significant to note that there is no mention about any such trial in the plan prepared by the investigating officer. It is difficult to believe that in case such trail of blood was found it would have escaped the notice of the investigating officer. There is no reliable evidence on the record that the occurrence actually originated from inside the field in possession of the appellants. The consistent version given by the three stamped eyewitnesses throughout is to the effect that the occurrence originated when Jai Narain deceased had gone ahead to change the fine of sprinkler for irrigating the land in possession of the complainant party. After he had seen the accused party armed with deadly weapons approaching the place where he alone was present, Jai Narain deceased ran towards the side where his close relations including two brothers were present. The accused chased Jai Narain and inflicted injuries on his person including the fatal injury on his person and he fell down on the ground before the accused inflicted further injuries to the three eyewitnesses as well as to Smt. Kamlesh and Savitri who had come there to serve meals to the complainant party. The ocular account on this point finds ample corroboration from the recovery of blood stained earth from the place where most of the blood had actually fallen and thus recovery of blood stained earth is helpful in fixing the place of occurrence. Apart from the deceased three eyewitnesses and Kamlesh and Savitri on the side of the complainant party, have also received injuries from the hands of the acquitted accused and the position of the said injured (luring the occurrence naturally cannot be expected to be static. Thus trail of blood referred to above loses its significance. In view of the circumstances referred to above, we are of the considered view that the main occurrence originated inside the filled in possession of the complainant party. The accused party particularly Chattar Singh and Kewal Ram appellants were armed with deadly weapons like Ballams and according to the ocular account which is credible and trustworthy, had inflicted injuries to the deceased including the fatal injury, while in side the filled in possession of the complainant party. There is no material evidence on the record to prove that either Chattar Singh or Kewal Ram appellants or their other coaccused received any specific injury at the hands of the complainant party. The accused party was thus the actual aggressor and not the complainant party. No right of self defence of person or property in our view had accrued to Chattar Singh or Kewal Ram appellants, or their other coaccused. We have thus no hesitation in rejecting the defence plea set up by Chattar Singh and Kewal Ram appellants, either about their false implication, or about the plea of alibi set up by Chatter Singh appellant.

For the foregoing reasons, the prosecution in our view has been able to bring home charge under Section 302 of the Indian Penal Code against Chattar Singh appellant and under Section 302 read with section 34 of the Indian Penal Code against Kewal Ram appellant and not under section 302 read with section 149 of the Indian Penal Code against the latter. Both Chhatar Singh and Kewal Ram appellants have rightly been sentenced to undergo imprisonment for life for committing the murder to Jai Narain deceased and their sentence is upheld. We are further of the considered view that the prosecution has not been able to prove charges under Sections 307/149 or under sections 148, 325 read with Section 149 and under section 323 read with Section 149 of the Indian Penal Code against any of the appellants. Their conviction and sentence under the aforesaid charges are hereby set aside and they are acquitted. As discussed earlier the prosecution has also not been able to prove its case under section 302 read with section 149 of the Indian Penal Code against Attar Singh and Kirpa Singh appellants and their conviction and sentence under the aforesaid charge are hereby set aside and they are acquitted. The appeal filed by the appellants is partly allowed to the extent indicated above, whereas revision petition which was admitted qua quantum of sentence is dismissed. Since the trial court has not awarded any sentence of fine it is not possible to award any compensation under section 357 of the Code of Criminal Procedure either to the widow of Jai Narain deceased or to other injured persons.