Katara and others vs State of Haryana

Learned counsel for the State has filed five affidavits of Sh. Sanjeev Kumar, Deputy Superintendent, District Prison, Karnal mentioning the period of imprisonment undergone by Katara (applicant-appellant No. 1), Dheer Singh (applicant-appellant No. 2), Babu Ram (applicant-appellant No. 4), Suresh (applicant-appellant No. 7) and Shugna (applicant-appellant No. 9). The same are taken on record. Heard learned counsel for the parties.

The criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of applicants-appellants No. 1, 2, 4, 7 and 9 during the pendency of the appeal.

The case of the prosecution is that ASI Rattan Singh alongwith other police officials on 20.11.2008 was present at General Hospital, Panipat in connection with investigation in another case. There he received information that Mulla Ram (complainant) who was admitted in Prem Hospital, Panipat had been referred to PGI Rohtak and he intended to make a statement to the police. The police party headed by ASI Rattan Singh reached Prem Hospital, Panipat and after obtaining opinion of the Doctor regarding fitness of Mulla Ram recorded his statement. According to Mulla Ram, Attar Singh (PW1) a resident of his village purchased a ''gher'' and a house from Harish. However, Attar Singh (PW1) had not taken its possession. On that day i.e. 20.11.2008, Mulla Ram, Attar Singh, Sunder Pal (deceased), Jagwinder, Ramesh and Rakma had gone to village Goela Khera to take possession of the said ''gher'' and house. While taking possession of the house purchased by Attar Singh, accused Arvind and his wife Rajesh who were present there raised resistance. On this account, an altercation ensued between the two sides and on hearing the commotion, the appellants'' side armed with lathi, jellies and gandasies came there. Arvind, Surender (not sent up for trial) son of Dheer Singh (applicant-appellant No. 2), Surender son of Roshan and Rajbir gave lathi blows to Sunder Pal (deceased) son of Attar Singh (PW1) on his head and on his person due to which he fell down. Satbir son of Babu Ram gave many lathi blows on the person of Mulla Ram''s legs. Mainpal also gave repeated lathi blows on his hands. Dheera (applicant-appellant No. 2) gave repeated lathi blows on his head and waist. It is stated that his other companions to whom accused had inflicted injuries would explain their injuries.

The learned trial Court after considering the evidence and materials on record has convicted applicant-appellants No. 1, 2, 4, 7 and 9 for the offence u/s 302 read with Section 149 IPC and sentenced them to undergo rigorous imprisonment for life, besides, pay a fine of Rs. 10,000/- . They have also been convicted for the offence u/s 323 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for 6 months, besides, pay a fine of Rs. 500/- and in default thereof to undergo imprisonment for 1 month. They further stand convicted for the offence u/s 324 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for 1 year, besides, pay a fine of Rs. 1000/- and in default thereof to undergo imprisonment for 2 months. Besides, they are also convicted for the offence u/s 325 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for 3 years, besides, pay a fine of Rs. 5000/- and in default thereof to undergo imprisonment for 6 months. Lastly, they stand convicted for the offence u/s 148 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for 1 year, besides, pay a fine of Rs. 1000/- and in default thereof to undergo imprisonment for 2 months. All the sentences have, however, been ordered to run concurrently. Insofar as, the role attributed to applicants-appellants No. 1, 2, 4, 7 and 9 is concerned, it may be noticed that though Mulla Ram in his initial statement stated that Dheer Singh (applicant-appellant No. 2) gave repeated lathi blows on his head and waist. Mulla Ram, however, it is stated by the learned Senior Counsel, did not appear in the witness box as he had died in an another incident. In any case the injuries that he suffered, have not been attributed by other prosecution witnesses to Dheer Singh (applicant-appellant No. 2).

It may be noticed that Katara (applicant-appellant No. 1) was armed with a lathi and he has been attributed a lathi blow on the right knee of Attar Singh (PW1). Besides, Ramesh (PW3) was also given a lathi blow by Katara (applicant-appellant No. 1) on his head. Apart from these two injuries, he has not been attributed any other injury. The said injuries caused to Attar Singh (PW1) and Ramesh (PW3) have been proved by Dr. Nitin Kalra (PW6). The injury on the head of Ramesh (PW3) after x-ray examination and surgeon''s opinion was found to be simple. The injury attributed to Attar Singh (PW1) has been proved by Dr. Karamvir Chopra (PW9). The said injury was opined to have been caused with a blunt weapon and no fracture was found after x-ray examination.

Dheer Singh (applicant-appellant No. 2) has been attributed a lathi blow on the right arm of Attar Singh (PW1). In the medico-legal report (Ex. PN/4) of Attar Singh, injuries No. 3, 5 and 6 have been shown on his right arm and these have been caused by blunt weapon. On x-ray examination both the arms of Attar Singh were found to be fractured. These were accordingly declared as grievous in nature. According to the learned Senior Counsel, the injury attributed to Dheer Singh (applicant-appellant No. 2) on the person of Attar Singh would, at the most, make out an offence u/s 325 IPC.

Babu Ram (applicant-appellant No. 4) according to Ramesh (PW3) had given a lathi blow on his abdomen. Dr. Nitin Kalra (PW6) proved the medical report (Ex. PH) of Ramesh (PW3). Injury No. 5 was mentioned as "complaint of pain on the chest and abdomen". The injury was declared to be simple and caused with a blunt weapon.

Suresh (applicant-appellant No. 7) according to Attar Singh (PW1) was armed with a spear (bhala) and he inflicted an injury with a spear on his left hand. There is no other injury attributed to Suresh (applicant-appellant No. 7) in terms of the medico-legal report (Ex. PN/4) of Attar Singh (PW1). Injury No. 4 on the person of Attar Singh (PW1) has been attributed to Suresh (applicant-appellant No. 7). The weapon used was mentioned as blunt and the injury was mentioned as diffused swelling on left hand. The learned trial Court observed that spear is usually considered as a pointed and sharp edged weapon rather than blunt. The spear used by Suresh (applicant-appellant No. 7) was recovered vide recovery memo (Ex. PO/2). The spear had also been proved on record as Ex. PO/5. Therefore, according to the learned Senior Counsel, the said injury attributed to Suresh (applicant-appellant No. 7) on the person of Attar Singh (PW1) is not in conformity with the weapon which Suresh (applicant-appellant No. 7) is stated to be carrying.

Shugna (applicant-appellant No. 9) has been attributed a lathi blow on the right hand of Attar Singh (PW1) and lathi blow on the person of Joginder @ Jagminder son of Attar Singh. Joginder @ Jagminder, however, had not mentioned the location of any injury attributed to Shugna (applicant-appellant No. 9). Besides, the injury suffered by Attar Singh (PW1) which is attributed to Shugna (applicant-appellant No. 9) is not mentioned in his medico-legal report (Ex. PN/4). Learned trial Court observed that since no location of injury had been given by Joginder @ Jagminder son of Attar Singh, it cannot be ascertained as to which injury was caused by Shugna (applicant-appellant No. 9) to him. The lathi said to be used by Shugna (applicant-appellant No. 9) was recovered from him in pursuance to his disclosure statement (Ex. PU), the demarcation memo of which was Ex. PU/1 and the recovery memo was Ex. PU/2.

In the circumstances, it may noticed that the injuries attributed to the said applicant-appellants No. 1, 2, 4, 7, and 9, except for Dheer Singh (applicant-appellant No. 2) are simple nature. The injury attributed to Dheer Singh (applicant-appellant No. 2) is grievous and at the most would make out an offence u/s 325 IPC.

Learned counsel for the State has submitted that the period of imprisonment undergone by applicants-appellants No. 1, 2, 4, 7 and 9 is too less besides, all of them have been convicted with the aid of Section 149 IPC for the offence u/s 302 IPC inasmuch as, they were part of the unlawful assembly. Therefore, at this stage their sentence of imprisonment is not liable to be suspended.

After giving our thoughtful consideration to the matter, it may be noticed that the injuries attributed to applicants-appellants No. 1, 2, 4, 7 and 9, except for Dheer Singh (applicant-appellant No. 2) are simple in nature. The injuries that are attributed to Dheer Singh (applicant-appellant No. 2) are lathi blows on the right arm of Attar Singh (PW1) and not on any vital part of his person. Even otherwise it is the admitted position that the applicants-appellants No. 1, 2, 4, 7 and 9 have not been attributed any injury on the person of Sunder Pal (deceased). Therefore, it is to be considered at the time of final hearing as to whether they were part of the unlawful assembly and were at the house of Arvind when the incident had occurred which too it is the complainant side that came to take possession of the land of Arvind as has been stated by Mulla Ram (complainant).

In terms of the affidavits that have been filed, applicants-appellants No. 1, 2, 4, 7 and 9 have undergone more than 1 year of imprisonment as on 28.3.2012. Katara (applicant-appellant No. 1) has undergone imprisonment of 1 year, 1 month and 21 days. Dheer Singh (applicant-appellant No. 2) has undergone imprisonment of 1 year, 3 months and 22 days. Babu Ram (applicant-appellant No. 4) has undergone imprisonment of 1 year, 1 month and 21 days. Suresh (applicant-appellant No. 7) has undergone imprisonment of 1 year, 10 months and 5 days and Shugna (applicant-appellant No. 9) has undergone imprisonment of 1 year, 1 month and 8 days. There is no other case pending against them. In the facts and circumstances, it would be just and expedient that their sentences of imprisonment during the pendency of the appeal are suspended. Accordingly, the criminal miscellaneous application is allowed and the sentences of imprisonment of Katara (applicant-appellant No. 1), Dheer Singh (applicant-appellant No. 2), Babu Ram (applicant-appellant No. 4), Suresh (applicant-appellant No. 7) and Shugna (applicant-appellant No. 9) shall remain suspended during the pendency of the appeal subject to their furnishing personal bond and surety each to the satisfaction of the learned Chief Judicial Magistrate, Panipat.