Kiran Pal vs State of Haryana

H.S. Bedi, J.

This appeal at the instance of the appellants who stand convicted arises out of the following facts:

At about 7.30 or 8 A.M. on 23rd February, 1990, four boys namely Dharam Pal son of Gugan, Ajit son of Kishan Pal, Satbir son of Bali and Mukesh son of Bir Singh all residents of village Kheri Sultan, were playing with a ball in the street adjoining the house of Des Raj since deceased while Des Raj was sitting in the verandah of his house with a child in his lap. The ball, however, went inside the verandah and hit Des Raj on his hand on which, he asked the boys not to play in the street. Satbir, thereafter, started abusing Des Raj and left for his nearby house and returned soon thereafter armed with a lathi alongwith the five others accused namely Vijay Pal, Krishan sons of Gugan, Bali son of Nihal armed with a Jaili each and Kiranpal and Bir Singh, armed with lathis. On reaching the place, Vijay Pal uttered that they would teach Des Raj a lesson and entered the verandah of his house. Des Raj left the child he was carrying on the floor and retreated to the roof of his house followed by the six accused and by PWs Surinder SinghPW7 and Dharam Pal. The prosecution story further is that Vijay Pal, Krishan and Balbir accused caused Jaili blows on the body of Des Raj, whereupon, he fell down on the roof of his house. The other accused, thereafter, caused repeated blows with their respective weapons. When the PWs Surinder Singh and Dharam Pal raised an alarm, the accused ran away from the spot with their respective weapons. The injured Des Raj was brought down from the roof of the house and was taken in a three wheeler to the Community Health Centre, Jhajjar, by Ram Avtar and Gainda Devimother of the deceased and was examined by Dr. S.C. Sharma, PW2, who found 10 injuries on his person. The doctor also sent ruqa Ex. PE to the police station concerned regarding the admission of the injured in the hospital and Ram DiaHead Constable Police Station Jhajjar reached there and moved an application Ex. PF for getting the opinion of the doctor as to whether the injured was in a fit condition to make his statement. The doctor, however, rendered his opinion in negative. The next day, ASI Bijender SinghPW9 moved an application Ex. PG seeking a similar opinion from the doctor who opined vide Ex. PG/1 that the patient was fit to make his statement. The statement of Des Raj Ex. PR was, accordingly, recorded at 6.30 A.M. on the 24th February, 1990 and a case under Section 323/452 of the Indian Penal Code etc was, registered.

Bijender Singh ASI, thereafter, reached the spot and prepared the rough site plan and lifted bloodstained earth from the roof of the house of Des Raj and also caused the photographs of the site to be taken. All the accused surrendered before the Investigating Officer at the time of the inspection of the spot itself and they were duly arrested and interrogated. They also suffered disclosure statements which were to the effect that they had handed over their respective weapons to Vijay Pal, who on his disclosure statement got the same recovered. In the meantime, Des Raj injured was shifted to the Medical College Hospital, Rohtak and he died there on 3rd March, 1990.

After the completion of the investigation, the police put up the accused for trial for offences punishable under Sections 148/452, 304 read with section 149 of the Indian Penal Code, but they were charged under Section 302 alongwith the other Sections mentioned above. They pleaded not guilty and claimed trial.

The prosecution in support of its case examined nine witnesses in all; they being PW1 Dr. V.K. Govila, who conducted the postmortem on the dead body, PW2 Dr. S.C. Sharma, who had examined the injured Des Raj when he had been admitted to the Jhajjar Health Centre, PW7 Surinder Singh the eye witness of the incident, the other having not been examined, PW8 Dr. Multan Singh who had treated Des Raj in the Medical College Hospital, Rohtak, on 24th February, 1990 till the date of his death on 3rd March, 1990 and PW9 ASI Bijender Singh, the Primary Investigating Officer.

6 The accused when examined under Section 313 of the Code of Criminal Procedure admitted that the four boys were playing with a ball outside the house of Des Raj and the ball hit him, but gave a counter version regarding the rest of the story and stated that after being hit by the ball, Des Raj came out of the verandah and started abusing the boys and also gave danda blow to Krishan and on this, Dharam Pal, Mukesh and Ajit caused injuries to him in selfdefence in the street itself. According to them, the occurrence had been seen by Rohtas Singh ExSarpanch and Bhim Singh, who intervened and separated the parties but denied that Surinder SinghPW7 and Dharam Pal had been present at that time. They also stated that except for Krishan and Satbir, none of the other accused were involved in the incident. They also pleaded that a case under Section 307 of the Indian Penal Code was earlier pending against Des Raj and others and this case had been registered against the present accused as a counter blast for putting pressure for coming around to the compromise in the earlier proceedings. In defence, the accused also examined DW1 Ajit Singh, DW2 Rohtas Singh and PW 3 Dharam Pal, who had earlier been cited as a prosecution witnesses but had been given up as having been won over.

The trial Court relied on the dying declaration of Des Raj and the eyewitness account of Surinder Singh and held that there was no delay in the lodging of the First Information Report and, accordingly, convicted and sentenced the appellant as already indicated above.

Mr. R.S. Ghai, learned Senior Counsel appearing in support of this appeal has urged first and foremost that there was an inordinate delay in the lodging of the First Information Report and there was ample evidence on the file to show that though being well aware of the incident having taken place, the police kept silent and had utilised the time to concoct a false story. He has in this connection drawn our attention to the evidence of PW9 ASI Bijender Singh, who admitted that though he had gone to the spot on 23rd February, 1990 at about 8.30 P.M. on the information that some incident had taken place, he did not care to make an enquiry with regard to the incident nor even visited the house of Des Raj. Our attention was drawn by Mr. Ghai to the crossexamination of this witness, in which he admitted that the S.H.O. had informed him about the occurrence and Constable Ram Dia, who had already visited the hospital at Jhajjar on the receipt of the ruqa from the doctor about the arrival of Des Raj was also alongwith him and Ram Dia had also told him about the facts of this case.

We have considered this argument of the learned counsel and find that there does appear to be some delay in the lodging of the First Information Report but we are of the opinion that it stands substantially explained. Ruqa Ex. PE was sent to the police station by Dr. S.C. Sharma of the Community Health Centre, Jhajjar at 12 noon on 23.2.1990 and Ram Dia Head Constable had gone to the Health Centre soon thereafter and had given an application Ex P.F. seeking the opinion of the doctor as to the fitness of Des Raj to make a statement. The Doctor gave negative reply at 2.45 P.M. Next day an application Ex. PG was moved by ASI Bijender Singh and this time, the doctor found that Des Raj was fit to make a statement and his statement Ex. PR was recorded at 6.30 A.M. on 24th February, 1990, and the formal First Information Report was recorded 15 minutes later. It is, therefore, apparent that the Police had acted with promptitude and sought to record the statement of Des Raj at the very initial stage. There is yet another significant fact in this connection which needs to be highlighted. It has come in the evidence that neither Surinder Singh PW 7 or Dharam Pal, the two eyewitnesses had taken the injured to the hospital and he had been admitted therein by his mother Gainda Devi and one Ram Avtar son of Mehtab Singh. Admittedly, these two persons were not the eyewitnesses of the incident and they had only brought the injured to the hospital and as such were not in a position to give details with regard to the incident.

Mr. Ghai has also argued that even assuming for a moment that the First Information Report could not be recorded in the hospital as Des Raj was not in a fit condition and that there was no other person conversant with the facts of the case, yet ASI Bijender Singh duly accompanied by Head Constable Ram Dia had gone to the village on the evening of 23rd February, 1990, but had made no enquiry whatsoever and this smacked of suspicion. We do feel that the police officials were remiss in their duties, but it is apparent that they were helpless in the matter as they had already visited the Community Health Centre and found that the story with regard to the incident was not forthcoming. It is also the case of the prosecution that neither Dharam Pal nor Surinder Singh PW7 had met them in the village at that time. It cannot, therefore, be said that the police was, at that time, aware of the fact that a cognizable offence had been committed.

Mr. Ghai has sought to challenge the prosecution story with regard to the venue of the incident. He has relied upon the evidence of PW 7 Surinder Singh and PW9 ASI Bijender Singh, to contend that the story of the deceased having gone to the roof after being attacked by the appellants was improbable for the reasons that there was no stair case leading to the roof and if once it was believed that the incident had not taken place on the roof, but in fact in the street as suggested by the defence, the entire prosecution story would be liable to fail.

We have considered this argument in the light of the evidence produced by the defence and find that this argument is not really correct. These two witnesses have admittedly stated that though there was no stair case leading to the roof, but PW 7 had stated that there were bricks lying along side the wall by which the roof could be easily reached, whereas ASI Bijender Singh PW9 deposed that there were bricks embedded in the wall protruding slightly outside and these could be used as stepping stones to go on to the roof and it was by this method that Des Raj had gone to the roof duly followed by all the accused and the two witnesses Surinder Singh PW 7 and Dharam Pal. We have examined the photograph of the place of incident and also the evidence and find that the venue is clearly proved as suggested by the prosecution. The photographs indicate that blood was lying on the roof and these facts were proved by Ram Mehar PW5, who took the photographs of the site. It is, therefore, apparent that the incident took place in the manner suggested by the prosecution.

Mr. Ghai has then argued that if the first two points raised by him could be held to make a dent in the prosecution case, the story of the defence would become probable. He has also relied upon the evidence of four witnesses mentioned above and argued that the incident had taken place when an attack had been made initially by Des Raj deceased on Krishanappellant. In support of this argument, pointed reference has been made to the evidence of Dr. S.K. Bhutani, Medical Officer, Community Health Centre, Jhajjar, who had examined Krishan on 24th February, 1990 and had found one injury on his person, which on radiological examination was declared to be grievous as there was a fracture of the small finger. We have, however, found that as the place of incident was not in the street, but on the roof of the house of Des Raj, the defence story becomes improbable.

Mr. Ghai has then argued that the number of the injuries on the accused indicated that some of the accused had been roped in falsely and that in any case, no offence under Section 302 of the Indian Penal Code was made out on the facts as pleaded by the prosecution itself. We are of the opinion that this argument does have merit. Dr. S.C. Sharma PW2 examined Des Raj injured in the Community Health Centre, Jhajjar and found the following injuries on his persons:

A lacerated wound on the left partial region of scalp 5 cm x 1 cm bone deep in size. Xray of the part was advised.

A lacerated wound 2.5 cm x 1 cm bone deep on the left side of occipital region of scalp. Xray of the part was advised.

An abrasion 1 cm x 1/2 cm on the left side of forehead. X ray was advised.

Swelling and tenderness on the right side of face.

A lacerated wound 1 cm x 0.5 cm x 1.5 cm. on the back in between two scapular regions, in the left side. Xray of the part was advised.

A lacerated wound 1 cm x .5 cm x 1.5 cm on the right scapular region. Xray was advised.

Multiple abrasions 3 cm x 1 cm to 2 cm x 1 cm on the back in between two scapular regions.

A bruises 20 cm x 2 cm on the back starting from upper part of left side of back. Xray was advised.

A bruise 15 cm x 2 cm. on the right side of chest. Xray was advised.

Bleeding from mouth was present.

Swelling and tenderness were present on the base of left ring finger on the dorsal surface in left hand. The Xray was advised.

After the death of Des Raj, his body was subjected to postmortem and it was observed by the doctor that in addition to the other wounds which had substantially healed, there was a fracture of the sixth, seventh and eight ribs on the right side the pleura was adhering to the lungs and chest on both sides, whereas both the lungs showed dirty pus like discharge with features of pulmonary oedema. As the cause of death could not be ascertained the lungs were sent for histopathological examination and on receipt of the report the doctor opined that the injuries were antemortem and were likely to cause death in the ordinary course of nature as both the lungs showed pneumonitis and the death could have been caused by these complications. He also observed that possibility of penumonitis having developed due to cold could not be ruled out.

It will be observed from the above resume of the medical evidence that there were in all about 11 injuries on the person of the deceased and as per the prosecution case, 6 accused had caused injuries repeatedly with their respective weapons. Obviously, the ocular version does not really connect with the medical evidence, we are, therefore, of the opinion that at least some of the appellants have been roped in falsely. We are further of the opinion that the presence of lacerated wounds did indicate that jailis were used in the attack lathiwise. We, therefore, feel that the three appellants i.e. Balbir, Vijay Pal and Krishan who were armed with jailis were present and had made the attack on Des Raj deceased whereas the presence of other appellants becomes somewhat doubtful.

We also feel that on the facts stated, that no case of murder has been made out. The nature of injuries specifically point out to the fact that intention was not to cause injuries sufficient to cause death of Des Raj and it appears that the death followed on account of complications arising out of the injuries. Even the Doctor has opined that the death was caused by penumonitis which might have set in on account of cold and further stated that the injuries suffered by Des Raj were only likely to cause the death. Reference has also been made to the evidence of PW8 Dr. Multan Singh of the Medical College Hospital, Rohtak, who had treated Des Raj from 24th February, 1990 till the date of his death on 3rd March, 1990, who had deposed that the patient had remained all right for seven days and on the date of his death, his condition had suddenly deteriorated. It is, therefore, apparent that we are not too sure as to the circumstances which led to the death of Des Raj and in the light of the evidence of Dr. S.C. Sharma that the injuries were likely to cause the death of Des Raj, we feel that the offence under Section 304 (II) of the Indian Penal Code is made out.

We, therefore, partly allow this appeal and acquit Kiran Pal, Bir Singh and Satbir Singh of all the charges levelled against them, whereas we convert the conviction of Vijay Pal and Krishan to one under Section 304(II) read with section 34 of the Indian Penal Code, (Balbir the third appellant who was armed with jaili having since died) and sentence them to five years'' R.I. for the aforesaid offences. The conviction of Balbir Singh, Vijay Pal and Krishan Kumar under Section 452 read with Section 149 of the Indian Penal Code is converted to one under Section 452 read with Section 34 of the Indian Penal Code, whereas all the appellants are acquitted of the charges under Section 148 of the Indian Penal Code and having held as above, we sentence Vijay Pal and Krishan Kumar appellants to five years'' R.I. under Section 304 (II) read with section 34 of the Indian Penal Code and maintain other parts of the sentences in terms of the trial Court''s judgment. With the necessary modification in the light of the order passed herein, this appeal is disposed off.