Balwan Singh vs State of Haryana

J.S. Sekhon, J.

This appeal as well as Criminal Appeal No. 573DBA of 1987 directed by the State of Haryana against the acquittal of Kapur Singh and Chander accused shall be disposed of by this judgment as these arise out of the same judgment of the learned Additional Sessions Judge, Sonepat and rest upon the same evidence.

In brief, the facts of the prosecution case are that Aad Ram deceased along with Hoshiar Singh (P.W.8) and the latter''s brothers Prem and Manphul had entered into an agreement on July 2, 1984, to purchase 8 killas of land from Radhey Sham and Mange Ram of their village Nizampur and the sale deed was to be executed by July 16, 1984. Balwan Singh accused also wanted to take possession of this land illegally and thus felt sore towards the prospective vendees. On July 3, 1984, Balwan Singh accused also gave beatings to Sultan Singh (PW12), the nephew of aforesaid Hoshiar Singh and thereafter absconded from the village. With this background of strained relations, it is alleged that on July 14, 1984, at about 7 p.m., Hoshiar Singh (PW8) and Aad Ram deceased were sitting outside the Cana Crusher of the former when Balwan Singh along with his friend, Ram Kishan, carrying Dangs besides his relation Chander accused carrying a gun and his wife''s brother Kapur Singh carrying a jaily came there from the side of village Ludana. Balwan Singh accused then exhorted to teach a lesson to Hoshiar Singh and Aad Ram for purchasing the land of banias and he opened the attack by giving four lathi blows to Hoshiar Singh (PW8) which landed on the right elbow, right armpit, right side of the waist and near the right elbow joint. Ram Kishan accused then dealt five lathi blows to Hoshiar Singh on the left armpit, left side near the waist, left arm and on the left hand wrist joint and on the left knee. Then Kapur Singh accused dealt four jaily blows lathiwise on the left leg, right calf, left thigh and on the right cheek of Hoshiar Singh PW. Thereafter, Chander accused fired a gun shot in the air besides striking its but dangwise on the left temple and forehead at Aad Ram (deceased), Kapur Singh accused also gave three jaily blows thrustwise on the left and right thigh of the deceased while Balwan Singh accused dealt a lathi blow on the back side of the head of Aad Ram (deceased) and Ram Kishan accused gave a lathi blow on the right side of the forehead of the victim. Aad Ram them fell down and became unconscious. Jagtar Singh (PW9) and Sumer Chand are alleged to have seen the occurrence. On the alarm raised by these witnesses, all the accused ran away along with their respective weapons towards village Ludana. Jagat Singh PW then brought both the injured to Civil Hospital, Gohana, at 9.25 p.m. in a tractor trolly where Dr. Satvir Chaudhari (PW1) examined Hoshiar Singh PW and found 13 injuries with blunt weapon on his person. All the injuries were declared simple later on. This doctor referred Aad Ram (deceased) to Medical College Hospital, Rohtak, for treatment as his condition was precarious. He also sent intimation Exhibit PB to the Police Station, Gohana. The Morhrrir Head Constable of Police Station, Gohana, gave a telephonic message to Sub Inspector Parkash Chand (PW13), Incharge of Police Station, Baroda, at 10 p.m. upon receipt of which, he along with other police officials went to Civil Hospital, Gohana, and concluded the statement Exhibit PJ of Hoshiar Singh (PW8) at 10.40 p.m., after the doctor had declared him fit to make the same. On it basis, the Formal Information Report Exhibit PJ/1 was got recorded through ASI Hari Singh in Police Station, Baroda, at 11.10 p.m. during the same night.

Reverting to the fate of Aad Ram deceased, it transpires that he was admitted in the Medical College Hospital, Rohtak for treatment during the same night and on an Xray examination of his skull, Dr. Arun Kumar Narula (PW2) detected fracture of the frontopartielal bone of the right side. Unfortunately, Aad Ram expired in the hospital on July 20, 1984. The offence was then converted into one under Section 302/34 of the Indian Penal Code by S.I. Parkash Chand. The autopsy on the dead body of Aad Ram was conducted by Dr. D.K. Sharma (PW4), who found save injuries on his person out of which injuries Nos. 1 and 4 were located on the head while the rest on left leg, right thigh and left thigh. He also found fracture of the left temporal frontal bone. The head injury was found sufficient to cause death in the ordinary course of nature.

Balwan Singh and Ram Kishan accused were arrested by S.I. Parkash Chand (PW13) on July 30, 1984, at 7.20 p.m., in the area of village Ishapur Kheri near Butana minor in the presence of Sat Pal (PW11) and other witnesses. Both the accused got recovered a dang each in pursuance of their disclosure statement, but ultimately human blood was not detected on any of these weapons. After completion of investigation, all the accused were arraigned for trial on such like allegations for the murder of Aad Ram and for causing injuries to Hoshiar Singh PW in furtherance of their common intention.

The trial Court acquitted Chander accused as his presence or participation in this occurrence was found to be doubtful while Kapur Singh accused was acquitted by giving him the benefit of doubt by way of abundant caution because the medical evidence did not corroborate the version of Hoshiar Singh and Jagtar Singh eyewitnesses about this accused having given blows with a twopronged jaily thrustwise on the legs of the deceased. The version of the eyewitnesses and Sultan Singh (PW12) that Balwan Singh accused wanted to take forcible possession of the disputed land or that he wanted to purchase the same, did not find favour with the trial Court. Balwan Singh and Ram Kishan accused were, however, convicted for the offence under Section 302 read with Section 34 and Section 323 read with Section 34 of the Indian Penal Code as the medical evidence corroborated the ocular testimony of Hoshiar Singh and Jagtar Singh witnesses regarding their participation in this crime. Each one of them was sentenced to undergo imprisonment for life besides to pay a fine of Rs. 1000/ or in default of payment thereof to undergo further six months''s rigorous imprisonment on the first count and to undergo each for six months'' rigorous imprisonment on the second count. The substantive sentences of imprisonment were, however, ordered to run concurrently.

We have heard the learned Counsel for the parties besides perusing the records.

The trial Court rightly disbelieved the version of Hoshiar Singh (PW8) Jagat Singh (PW9) and Sultan Singh (PW12) about Balwan Singh accused having tried to take forcible possession of the land in dispute by sowing Jantar crop therein as the sowing of any crop specifically did not figure in the First Information Report lodged by Hoshiar Singh injured PW. Moreover, according to Hoshiar Singh and Jagat Singh witnesses, the crop was sown about 2/3 days prior to July 2, 1984, while Sultan Singh PW in his statement Ex.PR dated July 3, 1984, before the police had asserted that Jantar seeds were sown about fifteen days prior to the lodging of the report. Sultan Singh is the real nephew of Hoshiar Singh injured and, thus, was expected to be familiar with these fact especially when on July 3, 1984, Balwan Singh accused gave simple injuries to him. Due to nonexamination of Radhey Sham and Mange Ram owners of the land in dispute, the trial Court rightly found the evidence of Hoshiar Singh and Jagat Singh being unreliable. In order to prove the fact that Balwan Singh accused also wanted to purchase this land especially when Hoshiar Singh (PW8) during crossexamination had admitted that he did not known whether the brother of Balwan Singh accused had ever talked to Radhey Shyam and Mange Ram for purchasing this land. The trial Court, however, came to the conclusion that Sultan Singh PW did receive simple injuries at the hands of Balwan Singh accused on July 3, 1984, as otherwise there was no occasion for Sultan Singh to lodge the report Exhibit PR against this accused. The medical evidence of Dr. Satvir Chaudhary (PW1), who found four simple injuries on the person of Sultan Singh PW.13 on July 3, 1984, was also used as corroborative evidence in this regard.

No doubt, Sultan Singh PW had alleged that these injuries were caused to him by Balwan Singh accused as he wanted to take illegal possession of the land in dispute, but all the same, this witness being a young boy hardly of 20 years old, was not expected to take active part in entering into an agreement to purchased the said land especially when his father Prem Singh is still alive and the land was agreed to be purchased in the latter''s name. Thus, it appears that Sultan Singh was given injuries by Balwan Singh accused due to verbal altercation. In his statement Exhibit PR as well as in his testimony at the trial, Sultan Singh (PW12) is silent about any other eyewitness being present at the time of said incident. Under these circumstances, it cannot be said that Balwan Singh or his friend, Ram Kishan accused were inimical towards Hoshiar Singh (PW8) or Aad Ram deceased. On the other hand, Hoshiar Singh PW must be feeling agitated against Balwan Singh accused on account of latter having given injuries to his nephew Sultan Singh only eleven days prior to this occurrence. Under these circumstances, the possibility of exchange of hot words between Balwan Singh and Ram Kishan accused on one side and Hoshiar Singh PW on the other side cannot be ruled out especially when the Cana Crusher of Hoshiar Singh PW falls on the circular road of village Nizampur. It is noteworthy that villagers usually carry sticks with them while walking about in their fields and, thus, the presence of dangs with these two accused is a neutral circumstance and cannot lead to the conclusion that they had indulged in preplanned assault upon Hoshiar Singh PW. The unnatural conduct of Hoshiar Singh PW by pinpointing each and every injury given to him by the accused or to Aad Ram deceased is further eloquent of the anxiety of this witness in securing conviction of all the four accused originally arranged for trial. He had gone to the extent of stating that first Balwan Singh accused gave him four blows with lathi on the specific portions on the body. Thereafter Ram Kishan accused had given five injuries with lathi on the specific portions of the body and then Kapur Singh accused (since acquitted) gave him four jaily blows dang wise. So, in this manner, he has accounted for all the 13 injuries observed by Dr. Satvir Chaudhary (PW1) on his person. The matter does not rest here as according to him Aad Ram deceased continued standing near him even though the latter was also one of the prospective buyers of the land in dispute. Thus, it appears that S.I. Parkash Chand (PW13) had depended upon his imagination in imputing each injury of Hoshiar Singh PW to a particular accused because by the time he recorded the statement of this injured in the hospital at Gohana, he was already in possession of the MedicoLegal Report. Under these circumstances, the trial Court rightly appraised the evidence of Hoshiar Singh PW with a check of due caution.

However, the presence of Jagat Singh (PW9), a nephew of Hoshiar Singh (PW8) as well as brother of Sultan Singh (PW12) is not free from doubt because he happened to reach the spot just at the nick of time from his house on the excuse of easing out. According to him, Chander accused (since acquitted) had inflicted injuries with the but of this gun on the head of Hoshiar Singh PW, while Kapur Singh accused had given four thrusts of jauly on the legs of Hoshiar Singh, PW, whereas according to Hoshiar Singh PW8, these injuries were given by these two accused to Aad Ram deceased. It cannot be said to be the result of inadvertent mistake on the part of Jagat Singh PW, as he had repeatedly stated in the examinationinchief that Chander and Kapur Singh accused had given these injuries to Hoshiar Singh PW. Moreover, this part of the testimony of Jagat Singh (PW9) was not even got clarified or challenged by putting him a question during reexamination or by way of crossexamination with the permission of the trial Court by the prosecution. It appears that the trial Court wrongly believed the testimony of Jagat Singh PW qua the part attributed to Ram Kishan and Balwan Singh accused on the assumption that the medical evidence of Dr. D.K. Sharma (PW4) corroborated the part attributed to them. Dr. D.K. Sharma (PW4) had found the following injuries on the dead body of Aad Ram deceased during autopsy :

Face was swollen on the frontotemporal region of the left side with left eyes were black.

Unstitched wound 6 cm. x 1 cm. bone deep in left side of midline in the parietal region.

Sweelling on the left temporal region present. After cutting the clotted blood was also present.

Sweelling on the right frontotemporal region present. Under the skin, there was haemotoma of the solf tissue.

1 cm. x 5 cm. would with scab formation on the lateral side of left leg.

1 cm. x 5 cm. x 5 cm. on the left thigh with scab formation 25 cm. above the knee.

Wound with scab formation on the right thigh 22 cms. above the knee joint.

There is confusion between the evidence of Dr. D.K. Sharma and that of Dr. Arun Kumar Narula (PW2) regarding the bones of the skull which were found practured. Dr. Arun Kumar on Xray examination detected fracture of the frontoparietal bone of the right side of the skull, whereas Dr. D.K. Sharma during autopsy detected fracture of the left temporal bone of his skull. During crossexamination, Dr. Sharma ruled out the possibility of any mistake on his part in detecting the location of the fracture, but at the same time stated that the skiagrams Ex.PD/2 and Ex.PD/3 related to the fractures on right side of the skull. Strange enough, the prosecution had not examined the doctor who had treated Aad Ram deceased during his stay in the Medical College Hospital, Rohtak, in order to resolve the controversy about the location of the fracture. Thus, it cannot be said with certainty whether the fracture of the skull, bone was the result of dang blow given by Ram Kishan accused on the right side of the forehead of the victim. However, Balwan Singh accused is alleged to have given the injury on the back side of the head of Aad Ram, but no such injury was found during autopsy. Under these circumstances, it cannot be said that the medical evidence corroborated the version of Jagat Singh (PW9), who was expected to observe the actual location of the injury given by Balwan Singh accused to the victim being a bystander, even through Hoshiar Singh PW was not expected to do so. Thus, it appears that the injuries were received by Hoshiar Singh and Aad Ram deceased in quick succession and not one after the other in dramatic manner as deposed by these two witnesses.

Mr. Ram Avtar, learned Additional Advocate General, tried to persuade us that the acquittal of Chander accused by the trial Court was not well founded by contending that his participation in the occurrence was corroborated by the medical evidence as he has given injury with the but of his gun on the left temporal region of Aad Ram. There appears to be no force in this contention either as the injuries on the head of the victim could be caused by a dang also, by Balwan Singh and Ram Kishan accused. Moreover, the abnormal conduct of Chander accused in not killing the victim with a gun shot, especially when he had allegedly fired a gun shot in the air, is not acceptable. Chander accused along with seven others was prosecuted for causing injuries to Rattan Singh son of Hari Singh, but was acquitted by the learned Sessions Judge, Jind, as is apparent from the certified copy Ex.DM of his judgment dated 19.1.1981. It is noteworthy that Rattan Singh is a near collateral of Harphool of village Bagru, fatherinlaw of Manphool and brother of Hoshiar Singh PW, as is apparent from the predgree table Ex.DQ. Thus, in a way it can be well stated that Hoshiar Singh PW had a motive to falsely implicate Chander accused especially when Balwan Singh accused is also married at village Bagru and all these witnesses during investigation stage had depicted Chander accused as his relation, but during testimony of their trial sensing the untruthfulness of their version, they had alleged that Chander accused was no friendly terms with Balwan Singh accused. The matter does not rest here as the plea of alibi of Chander accused being present at village Pullukera in connection with the election of the Member of the Panchayat Samiti till 7.30/8 p.m. was rightly believed by the trial Court. There is no dispute that such election did take place on 14th July, 1984. Som Dutt (DW5) was declared elected as the member of the Panchayat Samiti Phullukhera. According to Inder Singh (DW1), the casting of votes took place at 8 a.m. to 4 p.m. and the result was announced at about 5/5.30 p.m. The testimony of Sugan Chand (DW3), Suraj Parkash (DW4) and Som Dutt (D.W.5) clearly establish that Chander accused remained present at village Phullukhera in connection with this election from 8 a.m. onwards. After the announcement of the result, Som Dutt DW5 was taken in a procession from the office of the B.D.O. to the old Mandi Phullukhera and this procession dispersed at the residence of Ram Dhari where a tea party was held up till 7.15 p.m. A number of photographs were also taken at that time. It is usual on such like occasion to take photographs of the elected candidate in the possession. Thus, the testimony of Sugan Chand DW3 photographer that he has taken the photographs Exhibits D1 to D6 sounds truthful and establish the presence of Chander accused at village Phullukhera, because he figures in these photographs.

The acquittal of Kapur Singh appellant by the trial Court also appears to be well founded. Although, he was armed with a twopronged jaily and allegedly gave three jaily blows in a thrusting manner on the left and right thigh of Aad Ram deceased, but strange enough, the medical evidence of Dr. D.K. Sharma (PW4) simply reveals the presence of injury No. 5 on the left leg and injury No. 6 on the left thigh while injury No. 7 on the right thigh above the knee joint. If actually the twopronged weapon was used like a stab weapon, then lacerated or stab wound with a specific pattern corresponding to the width of the twopronged would have figured on the thigh of the victim. Moreover, the causing of these injuries with dang by Balwan Singh and Ram Kishan accused cannot be ruled out. Similarly, in the case of Hoshiar Singh PW it is alleged that Kapur Singh accused had given four blows with a jaily by using it like a dang. The dang actually used like a jaily and not being used effectively, also reveals the anxiety of Hoshiar Singh witness to falsely implicate Kapur Singh accused, who happens to be the wife''s brother Balwan Singh accused. However, the acquittal of Chander and Kapur Singh accused will not ipso facto render the testimony of Hoshiar Singh Qua the participation of Balwan Singh and Ram Kishan accused as unreliable as the dictum falusus in uno, falsus in omnibus is not applicable to the Courts in India while appraising the evidence of the witnesses. In this regard it is noteworthy that there is no doubt about the presence of Hoshiar Singh PW at the time of this occurrence as he has suffered as many as 13 injuries on his person. Dr. Satvir Chaudhary (PW1) had observed the following 13 injuries on the person of Hoshiar Singh :

3 cm. x 1/2 cm. x bone deep lacerated wound on right parietal region of scalp 4 cm. from anterior hair line and 10 cms. from tip of right pinna. Oozing of blood was present. Xray was advise.

3 cm. x 3 cm. abrasion on right face over the maler bone. Serunm layer was formed.

3 cm. x 3 cm. custusion on back of right chest wall 7 cms. below the inferior angle of right scapula and 5 cms. from mid line. Reddish in colour. Advised Xray.

3 cm. x 3 cm. reddish contusion on back of left chest wall, 10 cms. below the inferior angle of left scapula and 15 cms. from the mid line. Xray was advised.

12 cms. x 3 cms. transversely placed reddish contusion on back of right abdomen 5 cms. below the costal margin.

12 cms. x 2.5 cms. transverse reddish contusion on back of left abdominal wall 10 cms. below the costal margin.

Abrasion in area 3 cms. x 1 cm. on back and outer aspect of left forearm in upper 1/2rd with defused sweeling all around.

The whole of left lower 1/3rd of forearm was swollen and tender to touch, reddish colour. Abrasions were present on dorsal aspect of this swelling in an area of 5 cms. x 4 cms. Xray was advised.

Multiple abrasion on back and outer aspect of right forearm in upper 2/3rd.

20 cms. x 3 cms. vertically placed contusion on lateral aspect of left thigh in upper half, reddish colour.

Abrasion over the front of left thigh and left knee joint.

2 cms. x 1 cm. abrasion on front of left leg in its middle.

8 cms. x 1/4th cm. abrasion on inner side of right leg in upper 1/4th.

Although these injuries were ultimately found simple in nature, but all the same were kept under observation as some of the injuries were located on the vital part of the body. There is no option but to conclude that he has received these injuries at the hands of his adversaries. As already discussed, the possibility of sudden alteration between Balwan Singh and Ram Kishan accused on one side and Hoshiar Singh and Aad Ram deceased on the other cannot be ruled out. If that is so, then both the accused had individually reacted to the situation and it cannot be said that they had shared the common intention of each other or that they intended to kill Aad Ram especially when according to Hoshiar Singh PW, Aad Ram was given injury on intervention after he had suffered all the injuries at the hands of the accused. Moreover, they have dealt one blow each on the head of Aad Ram as already discussed, it is not clear from the medical evidence whether the left frontoparietal bone was found fractured or the right frontoparietal bone. It is not the case of Hoshiar Singh PW that Aad Ram was given any of the these injuries after his failing down on the ground. The injury attributed to Balwan Singh accused on the back side of the head of Aad Ram is not corroborated by medical evidence or Dr. D.K. Sharma, as no injury was found on the back side of the head of the victim. Thus, it appears from the testimony of Hoshiar Singh PW that Balwan Singh and Ram Kishan accused had developed common intention to cause grievous injuries with blunt weapon to Hoshiar Singh PW and when Aad Ram intervened to rescue Hoshiar Singh, he was also given an injury on the head by any of these two accused. Consequently, the conviction of the appellant can at the most be maintained for the offence under Section 325 read with Section 34 of the Indian Penal Code, as at the most they shared the common intention of each other to voluntarily cause grievous hurt to Hoshiar Singh PW with blunt weapon and hitting the intervener Aad Ram during this process.

For the foregoing reasons, the conviction and sentence of the appellants for the offence under Section 302 read with Section 34 of the Indian Penal Code for the murder of Aad Ram being not sustainable, are hereby set aside by partly accepting this appeal, but convert their conviction for the offence under Section 325 read with Section 34 of the Indian Penal Code regarding the injuries given to Aad Ram deceased. The conviction and sentence of these two appellants for the offence under Section 323 read with Section 34 of the Indian Penal Code for causing injuries to Hoshiar Singh injured (PW8) are, however, sustained. The appeal filed by the State against the acquittal of Kapur Singh and Chander is hereby dismissed. These two appellants are in custody since July 30, 1984. They have almost undergone more than three years substantive sentence. The substantive sentence already undergone by them shall be treated as sufficient for the offence under Section 325 read with Section 34 of the Indian Penal Code. Each of them is, however, ordered to pay a fine of Rs. 1000/ or in default of payment thereof to further suffer six months'' rigorous imprisonment. The entire fine, if realised, shall be paid as compensation to the heir of Aad Ram. The sentence on the other count shall run concurrently.

The appeals stand disposed of accordingly.