Dharam and Others vs State of Haryana

Surya Kant, J.—This appeal has been directed against the judgment and order dated 16th and 19th July, 2001 passed by the learned Additional Sessions Judges, Sonepat in Sessions Case No. 135 of 1999 whereby the appellants, having been found guilty of commission of offences under Sections 148/149/302/324 and 323 IPC, were sentenced in the following terms:-

Offence

Punishment

148 IPC

To undergo RI for two years and to pay a fine of Rs.5000/- each and in zefault thereof to undergo RI for six months.

302/149 IPC

To undergo RI for life as also to pay a fine of Rs.20,000/- each and in default thereof to undergo RI for three years.

324/149 IPC

To undergo RI for two years as also to pay a fine of Rs.5000/- each and in default thereof to undergo RI for six months.

323/149 IPC

To undergo RI for six months.

The prosecution machinery was set into motion on 16.7.1999 when Amarjit-the complainant (PW8) made the statement (Ex.PB) before the SHO, PS Gohana, to the effect that his father (deceased Partap) had six brothers, out of whom, his father and four others were from one mother and two, namely, Hawa Singh and Jagdish were from the other. That five brothers from one mother were having a joint Khewat and one of them, namely, Haria was unmarried and was living with the complainant''s father who also used to cultivate the share of land belonging to Haria. However, uncle (Tau) of the complainant, namely, Dharma and his sons, Raj Singh and Raj Kanwal as well as Kitaba son of Hazari, his another uncle and Bijender son of Kitaba were holding grudge against the non-partition of the land as they were claiming share out of the land belonging to Haria; that yesterday all the above named persons had asked the father of the complainant to divide the land of Haria, failing which he would not be allowed to see the sun on the next day; that today at about 6 AM, the complainant along with his mother Angrejo and his father-deceased Partap, his uncle Jagdish and Raghbir had come to the fields known as Bhatwala to fetch grass; all the aforementioned five persons, came to the fields belonging to the complainant party and started erecting a boundary and when they were stopped by the complainant party, all the five (Dharma etc.) went towards their tubewell and came back i.e. Kitaba with a Phali and other four, namely, Dharma etc. armed with Pharsas and thereafter Dharma raised Lalkara to teach a lesson for not permitting to raise the boundary, upon which Bijender gave a spear blow on the head of the complainant''s father, whereas Raj Singh gave second spear blow on the head of father of the complainant. When the complainant and others intervened, Bijender hit the complainant (Amarjit) with a spear in the right arm. Thereafter, Raj Kumar and Dharma also gave one spear blow each of the head of the complainant, as a result of which his father, namely, Partap, fell down on the ground. When Raghbir Singh intervened, Kitaba inflicted a Phali blow in the left side of the chest of complainant''s uncle Raghbir. Meantime, many persons came at the spot from their fields and on seeing them all the five accused persons fled along with their respective weapons. The complainant''s father, namely, Partap was brought to Civil Hospital, Gohana, after arranging a conveyance but the doctor declared him brought dead.

Based upon the aforementioned information, FIR No. 156 under Sections 148, 149/302/323 IPC was registered against the appellants at 11.30 AM in Police Station Gohana, special report of which was received by the Illaqa Magistrate, Gohana, at 1 PM on the same day.

Dr. Rajesh Kumar (PW12), who was posted at CHC, Gohana, conducted post mortem on the dead body of deceased Partap and found following injuries on his person:-

On left parietal bone 10 x 3cm x 3cm wound. Edges of the wound were well delineated. Underlying bone was fractured and fractured bone had pierced the brain matter. Posterior to this wound, there was horizontal wound 3cm x 1cm on scalp and just behind this wound there was 4cm x 2 mm lacerated wound.

ON that very day, Dr. Rajesh Kumar also conducted medical examination of Ranbir son of Hazari Lal and found the following injuries on his person:-

"1. Over left parietal bone oblique incised wound 7cm x 2cm x 1 cm in posterior aspect. The margins of the wound were well delineated.

Anteriorly over parietal bone there was irregular lacerated wound 2cm x 2cm x 2cm in size.

1cm x 2mm wound below elbow and right side.

Swelling right thigh 5x4 cms in size.

Posterior over scapula 9cm x 1cm incised wound.

6.10 x 1 cm incised wound on the right side of back in middle."

It may be mentioned here that the afore-stated Dr. Rajesh Kumar also medico-legally examined Dharma, son of Chhote Lal appellant No. 1 found the following injuries on his person:-

"1. Incised wound 2cm x 1 cm x 5cm deep on left upper part of chest, just lateral to sternum.

Outer left buttock on medial side two wounds .5cm x .5cm in size.

On medial side of right eye blue discolouration of skin with swelling.

Swelling at the base of nose.

Pain right knee.

Pain over left hand associated with swelling 5 x 4cm in size".

The injuries were simple, caused within two hours. The weapon used for injury No. 1 was sharp and blunt pointed for injuries No.2,3,4 and 5.

Similarly, he also medico legally examined Kitaba, son of Hazari-appellant No.4 and found the following injury on his person:-

Patient complained of pain abdomen .5 x .5cm wound right hypochondrium. Depth of the wound can not be ascertained. There was a similar wound adjacent to it".

The doctor opined that the duration of injury was within two hours and weapon used was blunt pointed. The injury was kept under observation.

Raj Kumar son of Dharam Singh-appellant No.3 was also examined by Dr. Rajesh Kumar and the following injuries were found on his person:-

On occipital bone 8 x 2 x 1 cm lacerated wound.

There was a lacerated wound 1 x .5cms over dorsal side of head on proximial phalynax.

In support of its case, the prosecution examined as many as 13 witnesses, which included Dr. B.S. Kadian (PW1), Dr. Rajesh Kumar (PW12), Rajinder Singh Patwari (PW6), who prepared the site plan (Ex.PC), SI Amar Dass (PW7), Amarjit-complainant and the eye witness (PW8), Raghbir Singh (PW9), Ranbir (PW11) and DSP Ram Kishan (PW13), who, while working as an Inspector, had partly investigated the case, apart from some other formal witnesses.

In their statements made u/s 313 of the Code of Criminal Procedure, the appellants, without disputing their presence or participation in the fight, took a common stand in their defence, which they disclosed in their reply to question No.1 3 to the following effect:-

On the day of alleged occurrence, Partap Singh deceased and his son Amarjit Started the tubewell of Dharma for irrigation of their fields without his permission and when he protested and switched off the electricity, Partap armed with Farsa and Amarjeet armed with Jelly attacked him. On his alarm, we reached there and tried to save him from them. They were also assaulted by the complainant side and he was given as many as six injuries by Farsa. Dharma picked up a farsa lying by the side of Kotha tubewell and caused only one injury to Partap deceased and Amarjeet to save himself and also to save to me and Kitaba. Partap Singh died at the spot and we took his dead body first to the police and police of police station Gohana had taken the dead body of Partap Singh to PHC, Gohana. I am innocent and falsely implicated in this case".

They also produced MHC Ram Phul Singh as DW1 in their defence evidence.

Rejecting the plea of private defence taken by the appellants, the learned Additional District Judge, vide his judgment dated 16.7.2001, held that the appellants armed with deadly weapons, with their common intention to commit murder, attacked the deceased as well as his other family members including the complainant and were, thus, guilty of the offences under Sections 148/149/302/324/323/34 IPC.

Shri K.S. Ahluwalia, learned Arguing counsel on behalf of the appellants, vehemently contended that there is an ordinate delay in registration of the FIR as well as in sending the special report, which has material bearing on the mathematical attribution of injuries to the appellants by PW8, PW9 and PW11; that it stands established that the investigating agency has twisted the facts of the occurrence and has attempted to make out four injuries out of the rope in all the appellants. Shri Ahluwalia pointed out that the occurrence is stated to have taken place at 6.00 AM whereas the FIR was registered at 11.30 AM and the special report was received by the Illaqa Magistrate at 1PM. He points out that according to Amarjit-complainant (PVV8), they had firstly gone to Police Station, Gohana at about 8.00 AM but the police asked them to go to the hospital first where they reached at about 8.30 AM. Shri Ahluwalia suggests that the police, having come to know about the fight at 8.00 AM from the complainant himself, FIR was deliberately registered at 11.30 AM after concocting the story and tutoring the complainant. According to him, the medial evidence suggests that only one fatal blow was given to the deceased on his head with a sharp edged weapon, whereas Amarjit (PW8), contrary to his original version as contained in the FIR (Ex.PB/1), has attributed spear blow to the deceased at the hands of the four appellants. He next contended that the first unpolluted information received by the police, namely, statement of the complainant (Ex.PB) and the endorsement made thereupon, clearly suggests that a "fight" had taken place in village Mudlana, which is also admitted by PW8 Amarjit in his cross-examination. Shri Ahluwalia submits that his assertion of a sudden fight having taken place at the tubewell of appellant No.1 is fully corroborated by the medical evidence on record inasmuch as three of the appellants too suffered multiple injuries. It has been vehemently contended that since the appellants, especially appellant No.1, suffered six injuries upon being attacked by the deceased and his son-Amarjit (PW8), the injuries attributed to the appellants are well within protective meaning of self-defence. Alternatively, it was contended that it being a case of sudden fight, the case falls within exception (4) of Section 300 IPC and, therefore, at the best, offence u/s 304, Part 1 or II can be made out against the appellants and not an offence u/s 302 IPC.

On the other hand, Mr. K.D.S. Hooda, learned counsel representing the State contended that the appellants armed with deadly weapons and with a common intention attacked the deceased and other injured persons in the fields belonging to the deceased and the nature of injuries caused upon the vital part of body of the deceased clearly establishes that they were premeditated to commit the murder. He pointed out that the eye witnesses to the occurrence who also suffered injuries have fully corroborated the prosecution case, According to Shri Hooda, there is hardly any delay in lodging of the FIR, much less the delay which requires any explanation as the family members of deceased Partap, being under the bonafide impression as if Partap was alive, firstly rushed to the hospital with an intent to save-him and also to secure first aid for other injured family members. It was thereafter only that the complainant having met the police officials on Phuwara Chowk, narrated the incident and accompanied the police officials to the hospital where he made statement (Ex.PB), pursuant to which the FIR was registered. He highlighted the fact that before the trial Court the appellants'' had taken the plea of self-defence whereas now they are trying to make out a case of sudden fight to bring the occurrence within the scope of Section 304 Part I or II, even though it being a case of causing intentional multiple blows upon the deceased, each one of which could be fatal, squarely falls within the ambit of Section 302 IPC.

We have heard learned counsel for the parties at length and have gone through the entire record with their assistance. So far as the first contention of Shri Ahluwalia that there is an inordinate delay in lodging of the FIR and the police having come to know about the occurrence at 8.00 AM, registered the FIR at 11.30 AM only and/or utilised the interregnum in twisting the occurrence is concerned, we find from the statement of Amarjit (PW8) that on the day of occurrence at about 6.00 AM he along with his deceased father and other family members had gone to the fields where his father stopped the appellants from raising the boundary line upon which the appellants went to their tubewell and came back after 5-10 minutes and attacked the deceased and his family members. The occurrence had taken place in the fields of village Mudlana. The injured was brought to the village Bus Stand in a cart. Thereafter, he was, taken to the Civil Hospital, Gohana at about 8.30 AM. Dr. Rajesh Kumar (PW12) firstly examined two injured persons, namely, the complainant himself (PW8) and PW11. In all probability, the medical examination must not have been concluded before 9.30 AM. It was thereafter that Amarjeet (PVV8) went to call his brother-in-law and while coming back the police met him on Phawara Chowk and accompanied him to the hospital where his statement (Ex.PB) was recorded. Minor variations in time or the place where the statement was formally recorded, can cause hardly any serious dent to the prosecution case, especially when the statement was recorded after more than one year of the occurrence. In our view, registration of the FIR by the police at 11.30 AM, therefore, can neither the termed as inordinately delayed nor will have any bearing on the merits of the prosecution case.

The contention of Shri Ahluwalia that the special report was received at 1 PM by the Illaqa Magistrate, even though the Civil Hospital and Judicial Complex are closely located, in Gohana town, therefore, an adverse inference should be drawn against the prosecution case, also carries no weight. In Ravi Kumar v. State of Punjab, 2005(2) CCC 511 (S.C.): 2005(2) AIC LR (S.C.) 335 their Lordships of the Supreme Court have held that some delay in receipt of the special report by the Illaqa Magistrate does not make the investigation tainted as delay in dispatch of the FIR is not a substance which an throw the prosecution case out in its entirety.

The next contention of Shri Ahluwalia that notwithstanding the fact that the deceased Partap had suffered one fatal head injury with a sharp edged weapon, but the police, by twisting the facts, has built up a case of causing four injuries, also stands belied by the medical as well as ocular evidence on record. As can be seen from the injuries found by Dr. Rajesh Kumar (PW12) on the body of the deceased, there were three wounds on the scalp and parietal region of the deceased head. All the three wounds were caused by sharp edged weapons, one of which was caused with such a great intensity that the underlying bone was also fractured to an extent that it pierced the brain matter. In his deposition, Amarjit (PW8) has deposed that Bijender-appellant No.4 gave a spear blow on the head of his father. Raj Singh-appellant No.2 also gave a spear blow on the head of his father. After causing multiple injuries to other persons, when Dharhia-appellant No. 1 and Raj Kumar-appellant No.3 noticed that deceased Partap was still breathing, they also gave Pharsa blows to Partap before fleeing towards their fields. According to this witness, thus, four blows with sharp edged weapons were given to the deceased. One of the injuries measuring 10 x 3cm x 3cms was so much grievous and deep that possibility of two simultaneous blows at one particular place of the scalp of the deceased can not be ruled out. The version of Amarjit (PW8) has been corroborated by Raghbir (PW9), who witnessed two spears corroborated by Raghbir (PW9), who witnessed two spears blow injuries being inflicted upon deceased Partap by Bijender and Raj Singh-appellants No 5 and 2 respectively before he himself fell down after being unconscious on account of the spear blow to him by Raj Singh and a Phali blow by Kitaba-appellant No.4 Ranbir (PW11) has also fully corroborated and explained the whole incident which led to the brutal murder of deceased Partap, apart from receipt of multiple injuries by Amarjit, Raghbir and himself. We, thus, do not find any merit in the submission that the prosecuting agency twisted the facts and/or tutored the witnesses to attribute injuries to the appellants which were never caused.

Shri Ahluwalia contention that it was in fact the appellants party which was attacked on the tubewell of appellant No.1 by deceased Partap and his son Amarjit (PW8) or that the injuries were caused to the deceased and this associates in self defence, is neither here nor there. There is no evidence whatsoever on record to suggest that the occurrence took place near the tubewell of appellant No. 1. In fact, there is not even a suggestion to this effect on behalf of the appellants either to the Investigating Officer-SI Amar Dass (PW7) or to Rajinder Singh Patwari (PW6), who prepared the site plan (Ex.PC) after identification of the place of occurrence by Ram Chander (P Wl 0) and Jagdish. SI Amar Dass (PW7) categorically stated that he "visited the spot and prepared rough site plan Ex.PD with correct marginal notes....". He further deposed that he had also "seized from the scene of occurrence blood stained earth in the presence of a public man named Jagdish as per memo Ex.PE". In the cross-examination, he has categorically stated that "the tubewell is situated at a distance of 40 paces from the scene of occurrence.". Thus, the plea that the occurrence took place on or near the tubewell of appellant No.1 as set up by the appellants, has been completely demolished by the prosecution. On the other hand. It stands conclusively established that the occurrence had taken place in the fields belonging to deceased Partap and his family. The appellants themselves have admitted their presence and participation in the fight. They were armed with fatal weapons. They mustered courage, went and attacked the deceased and his family members in the latter'' fields. There is absolutely no evidence on record that the deceased or other injured persons were armed and/or attacked the appellants first. Rather it has been categorically deposed by Amarjit Singh (PW8), Raghbir Singh (PW9) and Ranbir (PW11) that they or deceased Partap did not cause even a single blow to any of the appellants, thus, the plea of self-defence sought to be raised by the appellants has no legal or factual basis to sustain. We accordingly reject the same.

Coming to the last contention of Shri Ahluwalia that it was a case of sudden fight, therefore, squarely falls within exception (4) of Section 300 and would attract Section 304 Part I or II Illaqa of Section 302 IPC, it may be mentioned that exception (4) of Section 300 IPC covers acts done in a sudden fight. In Ravi Kumar''s case (supra), the scope and applicability of exception (4) has been explained by the Apex Court holding that exception (4) deals with the cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both the parties puts them upon equal footing in respect of the guilt. Their Lordships have further held that:-

"A sudden fight implies mutual provocation and blow on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception I. There is no previous deliberation or determination to fight. A fight suddenly takes place for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other hand not aggravated it by his own conduct, it would not have taken the serious turn it did. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation (b) in a sudden fight; (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties, have worked themselves into a furry on account of the verbal altercation in the beginning".

(Emphasis applied)

Applying these principles to the facts and circumstances of the present case, we are unable to hold it a case of "sudden fight". There was neither mutual provocation nor aggravation nor was it a case of fight for which both the parties are more or less to be blamed. On the contrary, the appellants attacked the deceased on his vital organs causing grievous injuries other persons with deadly weapons and taking undue advantage of the deceased and other persons being un-armed, cruelty reflected in the nature of injuries and the fact that two spear blow were given to the deceased merely because some of the appellants noticed that he was still breathing, speaks volumes of their outrageous behaviour and pre-meditated intention to commit the murder. The fatal attack by the appellants, thus, completely fails to satisfy more than one mandatory ingredients of Exception (4) to Section 300 IPC, and therefore, they can not be permitted to take shelter behind Part I and II of Section 304 IPC.

The contention of Shri Ahluwalia that since some of the appellants too received injuries, the sudden fight stands established, though appears to be attractive but is found farce on an in-depth scrutiny. Dr. Rajesh Kumar (PW12), who medico legally examined the alleged injured-appellants, has categorically opined that except injury No.1 suffered by appellant No.1, rest of the injuries caused to them were by blunt weapons. He has further opined that injuries suffered by the appellants were caused within two-three hours of their examination. The sequence of medico-legal examination conducted by him, indicates that firstly Dr. Rajesh Kumar had examined two injured persons from the complainant party, then he conducted post mortem of the deceased Partap at 10 AM and thereafter only he examined three of the appellants. Their medical examination, thus, must have taken place after 10.30 AM. The injuries suffered by them were simple in nature and were two-three hours old could have been suffered after the occurrence is which Partap was killed and multiple injuries were suffered by the complainant party. On an examination of the nature of superficial injuries suffered by some of the appellants, learned Additional Sessions Judge did not hesitate in holding that the same could have been self-inflicted injuries. We have no reason whatsoever to differ with the conclusion and/or the inference drawn by the learned Additional Sessions Judge to this effect and accordingly concur with the same.

For the reason aforementioned, we find no merit in this appeal which is accordingly dismissed.