Jagbir Singh vs State of Haryana

Satish Kumar Mittal, J.—Jagbir, Joginder, Raj Singh alias Rajbir and Balbir (appellants No. 1, 2, 3 and 4 herein) along with their father Rattan Singh (appellant No. 5 herein) were tried by the court of Additional Sessions Judge, Sonepat, for the offences punishable under Sections 302, 323 and 506 read with Section 34 of the Indian Penal Code, 1860 (IPC, for short) for committing murder of Rai Singh and causing injuries to complainant Ram Sarup (PW. 7). The trial court, vide judgment dated 11.07.2002 convicted the appellants for the aforesaid offences and vide order dated 13.07.2002, they have been sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- each, and in default of payment of fine to undergo further rigorous imprisonment for two years u/s 302 read with Section 34, IPC; to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- each, and in default of payment of fine to undergo further rigorous imprisonment for 15 days u/s 323 read with Section 34, IPC; and to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- each, and in default of payment of fine to undergo further rigorous imprisonment for 15 days u/s 506 read with Section 34, IPC. All the substantive sentences have been ordered to run concurrently. Feeling aggrieved by the said judgment and order, the appellants have filed the instant appeal.

During the pendency of the appeal, appellant Raj Singh alias Rajbir expired on 06.10.2013 (as disclosed by learned counsel for the appellants on the strength of death certificate, which has not been controverted by learned State counsel). In view of this fact, this appeal qua appellant No. 3 Raj Singh alias Rajbir stands abated.

As per the prosecution version, the complainant party and the accused party belong to the same family. There was a dispute between them with regard to installation of electric poles in the common path. The case of the prosecution is based upon the statement (Ex. PF) suffered by Ram Sarup (PW. 7), who was also injured in the occurrence, before HC Ramesh Chander (PW. 3) on 08.10.1999 at 10.50 PM in General Hospital, Sonepat. According to Ram Sarup, on 08.10.1999 at about 07.00 PM, when his brother Rai Singh (the deceased) on his way back from the fields, reached in the street in front of the house of accused Rattan Singh, he heard alarm raised by his brother Rai Singh for help. He rushed there and saw that accused Rattan Singh and his sons Balbir, Rajbir and Joginder were inflicting injuries to Rai Singh with lathi and axe. When he tried to rescue the deceased, accused Rajbir inflicted a Favri (wooden spade) blow on his head and accused Jagbir also came there with a lathi and administered a lathi blow on his waist. As a result, he fell down. When he was lying on the ground, accused Balbir held his neck and accused Joginder gave a danda blow on his left jaw. On hearing their hue and cry, his son Hitender and nephew Surender (PW. 8) came on the spot. On seeing them, all the accused ran away from the spot with their respective weapons. He further stated that they had also caused injuries to the accused persons in their self defence. Later on, his brother Dalel took them to Civil Hospital, Sonepat for treatment, where HC Ramesh Chander recorded the aforesaid statement of Ram Sarup, on the basis of which formal FIR (Ex. PF/2) was registered under Sections 323, 506, 34, IPC.

On the same day, i.e. 08.10.1999 at 11.50 PM, HC Ramesh Chander (PW. 3) recorded the statement of Rajbir (appellant No. 3), who was also got admitted in General Hospital, Sonepat. Rajbir stated that there was a dispute between the parties with regard to installation of the electric poles and the occurrence had taken place at about 07/07.30 PM in front of their house. According to Rajbir (appellant No. 3), when his father Rattan Singh (appellant No. 5) was sitting on a cot outside his house and he (Rajbir), along with his brothers Joginder and Balbir (appellants No. 2 and 4), was sitting in the house, Rai Singh along with his sons Anand, Dharampal and Krishan came there armed with Jaili, lathi and axe, and started inflicting injuries to Rattan Singh. When he and his brothers Joginder and Balbir rushed to rescue their father, Karan Singh son of Rai Singh, Ram Sarup (complainant), Indira wife of Ram Sarup and Hitender son of Ram Sarup also came there carrying lathi, Jaili and axe. They caused injuries to his brothers Joginder and Balbir. In the meanwhile, Balram son of Rajender came there armed with a lathi and gave a blow on his left arm. He further stated that during the fight, Sukhdev son of Rai Singh and Hemant son of Ram Sarup also came there having lathi and caused injuries to them. Rajbir further stated that they had also caused injuries to the other side in their self defence. After causing the injuries, they (complainant party) ran away with their respective weapons.

On 08.10.1999 itself, at 07.45 PM, Dr. Varsha (PW. 6), Medical Officer, Sonepat, medico legally examined Rai Singh and found following injuries on his body:

A lacerated wound of size 5 cm x 1 cm bone deep over the parito occipital region. X-ray was advised.

Swelling over the left eye lid. Eye Surgeon opinion was advised.$$

Thereafter, at 08.00 PM, injured Ram Sarup was medico legally examined by Dr. Varsha (PW. 6), and the following injuries were found on his person:

A lacerated wound of size 3 cm x 1 cm, muscle deep present on the parito occipital region. Surgeon opinion and X-ray were advised.

A reddish contusion of size 6 cm x 2 cm, present on the left side of back of lumber region.

A reddish contusion with abrasions of size 4 cm x 2 cm present over the right sepula region.

Two reddish contusions with abrasion sub cutenously circular in shape present over the left side of back. Both were 4 cm apart from each other.

Abrasion of size 1 cm x 1 cm sub cutenously present on the right feet.

Swelling of size 3 cm x 3 cm present over the left mandibular region. Surgeon opinion was advised.

On the same day, at 08.30 PM, Dr. V.K. Gupta (PW. 10), Medical Officer, Civil Hospital, Sonepat, medico legally examined Balbir Singh (appellant No. 4) and found the following injuries on his person:

There was a lacerated wound 5 x 1 cm bone deep over the left fronto parietal region of the skull. Fresh bleeding was present. Advised X-ray skull.

2 x 1 cm lacerated wound behind injury No. 1. Advised X-ray skull.

Lacerated wound 1.5 x 0.5 cm over tip of right middle finger. Bleeding was present. Advised X-ray.

There was a diffused swelling left elbow joint. Advised X-ray left elbow.

Thereafter, on the same day, at 08.50 PM, Dr. V.K. Gupta medico legally examined Rattan Singh (appellant No. 5) and found the following injuries on his person:

There was diffused swelling over the left maxilla nose, left upper lip, left zygoma. Overlying there was reddish abrasion with lacerated wound 1.5 x 0.5 cm over the left upper lip. Advised X-ray nosal bone. X-ray left maxila, X-ray skull, AP lateral view and Eye Surgeon opinion.

Complaining of pain left shoulder joint. He was not able to move the left shoulder. There was multiple lacerated wound over the left upper arm. Advised X-ray left shoulder joint. X-ray left shoulder and left upper arm.

Patient was complaining of pain in chest. Advised X-ray and Surgeon''s opinion.

On the same day, at 9.00 PM, Joginder (appellant No. 2) was also medico legally examined by Dr. V.K. Gupta, and the following injuries were found on his person:

Lacerated wound 6 x 1 cm bone deep over the left parietal region of the skull. Clotted blood was present. Advised X-ray skull.

2 x 1 cm reddish abrasion over the right anterior-superior aliacs spine. Advised Surgeon''s opinion.

On the same day, Dr. V.K. Gupta (PW. 10) also examined Rajbir Singh (appellant No. 3) and found the following injuries on his person:

There was diffused swelling with reddish contusion over the left forearm in the lower third region. Advised X-ray left forearm.

Five days after the occurrence, i.e. on 13.10.1999 at 10.55 PM, injured Rai Singh had died in the Hospital, regarding which wireless message (Ex. PB) was sent to the Police, which was received in Police Station Sadar, Sonepat, on 14.10.1999 at about 06.15 AM. Thereupon, offence u/s 302, IPC was added. Inquest report (Ex. PC) was prepared. On 14.10.1999 at 12.15 PM, Dr. Sarah Aggarwal (PW. 15) conducted the post mortem examination on the dead body of Rai Singh, the deceased and the following injuries were found on his body:-

Tracheostemy wound was present.

7 cm x 1 cm stitched wound in centre of right parieto-occipital region.

23 cms curved right parietal craniotomy wound was present.

Redness in left eye.

On dissection of scalp, a big haemotoma was present on both right and left parietal region. There was fracture of right parietal going downward and backward. On dissection of skull, a big haemotoma (epidural) was present on both sides of right and left cerebral hemisphere. Cause of death was opined to be shock and haemorrhage due to head injury which was sufficient to cause death in normal course of nature.

On 17.10.1999, appellants No. 1 and 2, namely Jagbir and Joginder, were produced by their relative Kuldip Singh before Inspector Sunderpal (PW. 9). They were arrested and during interrogation, they produced lathi and danda, which were taken into possession vide memos Ex. PN and Ex. PM, respectively. On 22.10.1999, appellants No. 3 and 4, namely Rajbir and Balbir, were arrested. During interrogation, appellant Rajbir produced a Favri (spade), which was taken into possession vide memo Ex. PR. Appellant Balbir, in pursuance of his disclosure statement (Ex. PS), got recovered the axe, used in the crime in this case, which was taken into possession vide memo Ex. PT. Rough site plan (Ex. PT/2) of the place of recovery was prepared. On 26.10.1999, appellant No. 5 Rattan Singh was arrested and in pursuance of his disclosure statement (Ex. PU), he got recovered the Mussal, used in the crime, which was taken into possession vide memo (Ex. PU/2) and rough site plan (Ex. PU/3) of the place of recovery was prepared.

After completion of investigation, challan was filed and the accused were charge sheeted for the offences under Sections 302, 323 and 506 read with Section 34 IPC, to which they did not plead guilty and claimed trial.

In support of its case, the prosecution examined sixteen witnesses, including PW. 6 Dr. Varsha, who proved the MLRs of Rai Singh and complainant Ram Sarup as Ex. PP and Ex. PQ, respectively; PW. 10 Dr. V.K. Gupta, who proved the MLRs of appellants No. 4, 5, 2 and 3 as Ex. PV, Ex. PV/1, Ex. PV/2 and Ex. PV/3, respectively; PW. 15 Dr. Sarah Aggarwal, who proved the Post Mortem Report of Rai Singh as Ex. PY; PW. 3 HC Ramesh Chander, who recorded the statement of the complainant Ram Sarup, on the basis of which formal FIR was registered, as well as the statement of appellant Rajbir regarding the cross-version of the accused party; PW. 7 Ram Sarup (complainant-injured); PW. 8 Surender (eye witness); and PW. 9 Inspector Sunderpal, who arrested the accused and conducted investigation in the case. PW. 4 HC Giri Raj, PW. 14 Dharam Pal and PW. 16 HC Mam Raj are the recovery witnesses. PW. 1 Constable Inderpal, Draftsman, PW. 2 ASI Om Parkash, PW. 5 MHC Kuldip Singh, PW. 11 SI Ram Chander, PW. 12 Constable Bijender and PW. 13 Dr. S.B. Siwach are the formal witnesses.

In their statements recorded u/s 313 Cr.P.C., all the appellants denied the incriminating evidence appearing against them in the prosecution evidence. They pleaded innocence and their false implication in the case. They reiterated their defence version, as given by appellant No. 3 Rajbir in his cross-version (Ex. PG).

In defence, the appellants examined four witnesses. DW. 1 Dr. S.K. Gosain, who conducted X-ray examination of all the four injured appellants, proved his reports Ex. DC, Ex. DC/1, Ex. DC/2 and Ex. DC/3, pertaining to appellants Rajbir Singh, Balbir, Joginder and Rattan Singh, respectively. DW. 2 Head Constable Kuldeep Singh proved copy of FIR No. 204 dated 21.9.2000 (Ex. DD) registered at Police Station Sadar, Sonepat against Hitender son of complainant Ram Sarup for the offences under Sections 376/506 IPC. DW. 3 Lakhmi Chand Dhiran is a formal witness, who proved copy of the treatment record (Ex. PDE) pertaining to appellant No. 5 Rattan Singh. DW. 4 Dr. Mool Chand, who treated appellant No. 5 Rattan Singh, proved the record pertaining to his treatment as Ex. DF. He stated that left eye of appellant Rattan Singh was totally damaged.

The trial court, after hearing learned Public Prosecutor for the State and learned counsel for the accused, while relying upon the prosecution evidence available on record and disbelieving the cross-version given by the appellants, convicted and sentenced the appellants, as indicated in the first paragraph of this judgment.

Hence this appeal.

Learned Senior counsel for the appellants argued that in the present case, the prosecution has failed to establish the charges against the appellants beyond reasonable doubt. According to him, the prosecution has completely failed to explain the injuries received by four appellants and the version given by the complainant is doubtful. Learned counsel, while referring to the statement of PW. 7 Ram Sarup (injured-complainant) argued that this witness, in his initial version (Ex. PF) only stated that they had caused injuries to the accused persons in their self defence, but he did not explain the injuries, as to who amongst the accused was injured and which injury was caused by whom from amongst the complainant side. While appearing in the court as PW. 7, he again did not clarify this aspect of the matter and he only stated that "We also inflicted injuries on the person of the accused to rescue my brother Rai Singh but I cannot tell who among them received the injuries." Learned counsel further referred to the statement of PW. 8 Surender, the alleged eye witness, to show that this witness has categorically stated in his examination-in-chief that he does not know whether any of the accused received any injury or not. Learned counsel also referred to the cross-examination of the said witness, where he stated that he, his brother Hitender, uncles Ram Sarup and Rai Singh did not give any blow or inflict any injury on the person of any of the accused. On the basis of the said evidence led by the prosecution, learned senior counsel argued that in the present case, the prosecution has failed to explain the injuries received by four accused persons at the hands of the complainant side, which creates doubt in the prosecution version. Learned senior counsel further argued that even if it is taken that the prosecution has established that in the occurrence, which had taken place on 08.10.1999 at about 07.00 PM in front of the house of Rattan Singh, persons from both the sides had received injuries, the present case is a case of free fight and in that situation, the accused cannot be punished with the aid of Section 34 IPC. He further argued that as far as appellant No. 4 Balbir is concerned, who is stated to have given axe blow from reverse side of the axe to the deceased, cannot be punished u/s 302 IPC, because he never attempted to give second blow, therefore, at the most he can be punished u/s 304 Part II IPC.

On the other hand, learned Deputy Advocate General, Haryana, argued that the prosecution has fully proved its case by leading cogent and convincing evidence and the trial court has rightly convicted and sentenced the appellants on the basis of the reliable and trust-worthy evidence led by the prosecution.

We have considered the submissions made by learned senior counsel for the appellants as well as learned Deputy Advocate General, Haryana, and have also gone through the impugned judgment and perused the record of the case.

From the medical evidence available on record, it has been established that two persons from the complainant side, namely complainant Ram Sarup and Rai Singh (deceased), and four persons from the accused side, namely Joginder, Raj Singh alias Rajbir, Balbir and Rattan Singh, received injuries in the occurrence, which had taken place in front of the house of appellant Rattan Singh. There is no dispute with regard to the date, time and place of occurrence. However, both the parties are giving different versions with regard to the manner in which the occurrence had taken place. According to the complainant, on the day of occurrence at about 7.00 PM, when his brother Rai Singh was going from his fields to his house and had reached in front of the house of Rattan Singh, accused Rattan Singh, Balbir, Rajbir and Joginder, were inflicting injuries to Rai Singh with lathi and axe. On hearing noise, when he reached the spot and tried to rescue his brother Rai Singh, accused Rajbir gave a Favri (spade) blow on his head and accused Jagbir also came there with a lathi and gave a lathi blow on his waist. He further stated that thereafter, accused Balbir held his neck, when he was lying on the ground, and accused Joginder gave a danda blow on his left jaw. It is further the version of the prosecution that on hearing their noise, Hitender and Surender (PW. 8) came on the spot and on seeing them, all the accused ran away from the spot with their respective weapons. On the other hand, the version given by appellant Rajbir is that on the day of occurrence, at about 07/07.30 PM in front of their house, when his father Rattan Singh (appellant No. 5) was sitting on the cot outside his house and he (Rajbir) along with his brothers Joginder and Balbir (appellants No. 2 and 4) was sitting in the house, Rai Singh along with his sons Anand, Dharampal and Krishan came there with Jaili, lathi and axe, and started inflicting injuries to Rattan Singh. When he and his brothers Joginder and Balbir rushed to rescue their father, Karan Singh son of Rai Singh, Ram Sarup (complainant), Indira wife of Ram Sarup and Hitender son of Ram Sarup also came there carrying lathi, Jaili and axe. They caused injuries to his brothers Joginder and Balbir. In the meanwhile, Balram son of Rajender came there with a lathi and gave a blow on his left arm. He further stated that during the fight, Sukhdev son of Rai Singh and Hemant son of Ram Sarup also came there having lathi and caused injuries to them.

A perusal of the record shows that the version of the accused side was never investigated into. It is true that when their version was not investigated into and the challan was filed against them, the accused did not take any step to get their version investigated into or take recourse to Section 200 Cr.P.C. However, the fact remains that the version given by the accused side was not investigated into. But it is an admitted case of both the sides that in the occurrence, which had taken place in front of the house of Rattan Singh, persons from both the sides had received injuries. This reflects that neither the complainant party nor the accused party is giving true version with regard to the occurrence. Even the trial court has not recorded any finding regarding the truthfulness of the version given by both the sides and this issue has not been discussed. Thus, from the evidence available on record, it has been established that in a free fight, which had taken place in front of the house of appellant Rattan Singh, both the sides caused injuries to each other. In Bachan Singh and others Vs. State of Punjab, accused person had also received injuries in the occurrence in which deceased Narayan singh was killed. Hon''ble Supreme Court, after examining the evidence ruled that Section 34 IPC has no application to such a case and observed as under:

The fact that the accused parties also sustained injuries cannot be disputed. In fact, the first appellant Bachan Singh had sustained a stab wound on the dorsal side of the right shoulder. The appellant, Makhan Singh had received injuries on his mouth as a result of that two teeth were uprooted and that A4 sustained a lacerated wound on the right parietal. A survey of the evidence leaves an impression that there was a free fight between these two groups, namely, the prosecution party and the accused party, in which both the parties sustained injuries. It is the settled law that in a free fight each accused will be liable for the individual act attributed to the particular accused. According to the evidence, the third appellant Pala Singh had not caused any injury to the deceased but he has caused a simple injury on the index finger of PW 3. As we have already pointed out Sulakhan Singh who was convicted by the trial Court u/s 302 (simpliciter) has been acquitted by the High Court. The appellant Makhan Singh has caused a simple injury on the leg.

Therefore, the appellants, who were challaned, charged and tried in this case, are to be convicted as per their individual role in the occurrence, because from the circumstances and the evidence available on record, it is established that there was no pre-determined plan and meeting of minds of the appellants to cause injuries, therefore, they cannot be convicted with the aid of Section 34 IPC.

We have considered the submissions made by learned Senior counsel for the appellants with regard to the offence committed by appellant No. 4 Balbir. The trial court has convicted him under Sections 302, 323 and 506 read with Section 34 IPC, for which he has been substantively sentenced to undergo imprisonment for life. In our opinion, though appellant Balbir caused one injury to deceased Rai Singh on his head from the reverse side of the axe, but looking into the seat of the body, where the said injury was caused, we are of the opinion that the said act of appellant Balbir cannot be said to be unintentional and cannot be held to be culpable homicide not amounting to murder. Therefore, in our opinion, by giving an axe blow on the head of Rai Singh, knowing that such injury was most likely to cause his death, appellant Balbir has committed the act of murder, as defined in clause "Thirdly" of Section 300 IPC. Thus, appellant No. 4 Balbir is liable to be convicted u/s 302 IPC.

As far as appellant No. 5 Rattan Singh, who had caused Mussal blow on the temple of deceased Rai Singh, is concerned, the said injury has been found to be simple in nature by the doctor. The fatal injury due to which death of the deceased was caused is the axe injury caused by appellant Balbir, therefore, appellant Rattan Singh individually did not cause fatal injury to Rai Singh. Therefore, the injury caused by appellant No. 5 Rattan Singh, which was declared simple in nature, falls u/s 323 IPC. Similarly, the injuries attributed to appellants No. 1 and 2, namely Jagbir Singh and Joginder, respectively, are also simple in nature. Thus, they are also individually liable to be convicted u/s 323 IPC.

In view of the above, appellant No. 4 Balbir is convicted u/s 302 IPC and appellants No. 1, 2 and 5, namely Jagbir Singh, Joginder and Rattan Singh, respectively, are convicted u/s 323 IPC. Consequently, conviction and sentence of these appellants recorded by the trial court is set aside. The appeal qua appellant No. 3 Raj Singh alias Rajbir stands abated, as he has died during the pendency of the appeal.

From the record, it transpires that appellant No. 1 Jagbir Singh has already undergone 45 days of imprisonment in this case, whereas appellants No. 2 and 5, namely Joginder and Rattan Singh, have undergone about five years of imprisonment. Keeping in view the facts and circumstances of the case, appellants Jagbir Singh, Joginder and Rattan Singh are sentenced to the period already undergone by them for the offence u/s 323 IPC. However, the sentence of appellant No. 4 Balbir recorded by the trial court for the offence u/s 302 IPC is upheld. Since appellant No. 4 Balbir is on bail, therefore, his bail bonds stand cancelled and he is directed to surrender himself before the jail authorities immediately for completing remainder of his sentence, failing which the concerned authority shall proceed against him in accordance with law.

The appeal qua appellants No. 1, 2, 4 and 5 is, accordingly, disposed of with the aforesaid modifications and the appeal qua appellant No. 3 is abated, as he has died during the pendency of the appeal.