Mangtu vs State of Haryana

K.S. Tiwana, J.

The case of prosecution is that on 17th of March, 1984 on Holi day, Balwan PW.13, resident of village Kharak Kalan, was returning to his house from the fields at about 3 p.m, after answering the call of nature. When he passed by the side of the house of Hawa Singh accused, he found Hawa Singh, Dharambir, Mangtu and Krishan sitting there under the influence of liquor. Hawa Singh accused gave a khangoora (a gurgling sound from the throat). Balwan PW reached by telling Hawa Singh accused that a dog behaves like a lion at his own premises. He challenged Hawa Singh that if he had guts he should come to his house and then make a khangoora. Hawa Singh accused accepted the challenge and told him that he would be coming.

After about half on hour, Dharmbir, Mangtu, Krishan, Om Pal, Ram Kumar, Om Parkash, Raghbir and Sobha Ram accused armed with sticks and Hawa Singh and Rambhul accused armed with jailis came to the house of Balwan PW.13. All the accused belong to the same family. Hawa Singh and Raghbir accused shouted challenging Balwan PW to come out as they had come, Malha Ram deceased, father of Balwan PW, who was sitting there was smoking hukka with folded hands beseached the accused not to pick up quarrel and go back. Instead of listening to Malha Ram deceased, Raghbir gave a stick blow on the neck of Malha Ram. Dharambir accused gave a blow on the head and Sobha Ram accused gave a stick blow on his forehead. Hawa Singh accused gave a jaili blow on the eyes. Rambhul accused gave a lathi blow on the nose. Malha Ram on receipt of these injuries fell down. The moment Balwan PW13 came forward to intervene, Ram Kumar accused gave a stick blow on his left leg. Raghbir Singh and Sobha Ram caused injuries on his back. He too fell down. Hawa Singh accused gave a laili blow on his back and Rambhul accused gave a jaili blow on the thigh. Some one out of the accused gave an injury near his right ear. His wife Smt. Hukam Kaur PW15, brother Jit Pal PW18 and uncle Dhupal PW19 also came there. When Smt. Hukam Kaur tried to intervene and save Malha Ram deceased, Ram Kumar accused gave a stick blow on her head and Om Pal gave a blow on the right shoulder. Krishan gave a stick blow on her left arm. On receipt of these injuries, she too fell down. Krishan accused gave blows on her ankles and Om Par (Omi) gave a elbow on her blow. Ram Kumar wielded stick blows towards her, which she warded off by raising her hands and suffered injuries on her right thumb. Dhupal and Jit Pal were also caused injuries. The prosecution witnesses also caused injuries in selfdefence. Man Singh PW17 had also witnessed the occurrence.

The injured were taken to the Medical College Hospital at Rohtak, Malha Ram deceased was admitted in that hospital at 6.30 p.m. on 17th of March, 1984. He was medically examined on that day at 7 p.m. by Dr. Narender Aggarwal PW9. The doctor found three lacerated wounds on the middle of the forehead, above the nose and on the occipital region. The doctor also noticed two haematomas in the right temporal region and on the right upper eyelid. The injuries were the result of blunt weapon and had been caused within six hours preceding the examination.

On the same day the same doctor on medical examination of Balwan PW13 at 7.40 p.m. found seven lacerated wounds on the left leg, middle and right side of the scapula, left tempoparietal area and the left back. One wound on the scalp was `L'' shaped. The injuries were the result of blunt weapon and had been caused within six hours preceding the examination.

Dr. Suresh Bakshi PW5 while posted as Medical Officer, Primary Health Centre, Kalanaur, on 17th of March, 1984 at 8.15 p.m. examined Mangtu accused and found a contusion on the base of right hand involving the index and middle fingers. The doctor also found two abrasions on the sternoclavicle joint and left lateral meloleous. The injuries were simple in nature and had been caused by blunt weapon within six hours preceding the examination.

On the same day the same doctor at 8.20 p.m. on medical examination of Krishan accused found one incised wound on the left partietal region and two raddish contusions on the left side of the chest and right forearm. The injuries were simple in nature and injury No. 1 had been caused by sharp edged weapon and Nos. 2 and 3 had been caused by blunt weapon within six hours preceding the examination.

On the same day the same doctor on medicolegal examination of Hawa Singh accused conducted at 8.30 p.m. found two oblique lacerated wounds on the right parietal region of the scalp and the right leg. The doctor also found one contusion on the left forearm. Hawa Singh complained of pain in the gluteal region. The injuries were simple in nature and had been caused within six hours preceding the examination, by blunt weapon.

On the same day the same doctor examined Dharambir accused at 9 p.m. and found four contusions on the right forearm, right side of the chest, left thumb and incised wound on the left ear. The incised wound was the result of sharp edged weapon and the contusions had been caused by blunt weapon within six hours preceding the examination.

Dr. P.P. Taneja PW1 on 17th of March, 1984 Xray Balwan for his injuries and found a fracture in the parietal region and on the left tibial bone.

On 18th of March, 1984 Dr. Rajnesh Kumar Gupta PW6 examined Smt. Hukam Kaur PW15 and found two lacerated wounds on the left parietal region and left upper arm. The doctor also found two contusions on the left shoulder, left leg and three abrasions on the left forearm and right elbow. Right thumb was slightly swollen and its movement was restricted. Except injury to the thumb, the rest of the injuries were simple in nature and had been caused by blunt weapon within 48 hours preceding the examination.

On the same day Dr. Vijay Kesari PW7 on medical examination of Dhupal PW at 7.40 p.m. found one lacerated wound over the left parietal region, diffused sweeping on the left shoulder and tenderness over the right elbow joint. The injuries were simple in nature and had been caused by blunt weapon within 24 hours preceding the examination.

On the same day the same doctor medicolegally examined Jit Pal PW18 at 8 p.m. and found a lacerated wound over the right parietal region and swelling with tenderness on the left shoulder. There was tenderness on the dorsum of the left foot also. The injuries were simple in nature and had been caused by blunt weapon within 24 hours preceding the examination.

On 18th of March, 1984 Dr. Anil Gomber PW2 on Xray of Smt. Hukam Kaur PW15 found a fracture of the proximal phalynx of the right thumb.

During the investigation of the case the accused were arrested and jailis Exhibits P1 and P2 were recovered from Rambhul and Hawa Singh accused respectively.

At the trial Balwan PW13 deposed about the circumstances in which the accused came in front of their house and caused injuries to Malha Ram deceased and prosecution witnesses. He with his wife Smt. Hukam Kaur PW15, brother Jit Pal PW 18 and Man Singh PW17 testified to the details of the occurrence. Dhupal PW19 was tendered for crossexamination. The rest of the witnesses examined at the trial were formal in nature.

At the close of the prosecution case when examined under Section 313 of the Code of Criminal Procedure, 1973, Hawa Singh accused stated that on the day of occurrence. Balwan and Jit Pal PWs were drunk and were throwing colour on the wife of Japan. He told them not to throw colour on the females. Balwan abused him and he in return slapped him (Balwan). Ram Singh intervened and Balwan left the place. He went to the house of Krishan and Mangtu, where Dharambir was also present. When he was on his way back to his house, Balwan, Dhupal, Jit Pal and Malha Ram deceased attacked him Mangtu Krishan and Dharambir accused came out to help him, but were injured by Balwan and his companions. In the meantime Surja came out. He intervened and separated them. Chandgi and Dhara were arracted to the place of occurrence. They caused injuries to Malha Ram, Balwan and Jit Pal. Ladies of both the sides started throwing brickbats on each other. Dharmbir, Krishan and Mangtu accused adopted the version of Hawa Singh accused. The rest of the accused denied the case against them and returned the plea of not guilty.

Yadbir DW1, Duty Inspector, Haryana Roadways, Faridabad and Doegh Ram, Conductor, Haryana Roadways, (DW2) testified to the plea of alibi of Sobha Ram accused.

Ram Singh DW 4 stated that Balwan and Jit Pal were playing Holi with the wife of Japan, when Hawa Singh accused objected and slapped Balwan. Chandgi DW5 testified on the lines of the statement of Hawa Singh accused.

The learned Sessions Judge Rohtak acquitted Rambhul, Om Pal, Ram Kumar, Om Parkash, Raghbir and Sobha Ram accused of the charge. He found that Section 34 of the Indian Penal Code was not attracted to the charge of murder and acquitted Mangtu, Krishna and Hawa Singh of that charge. He convicted Dharambir accused for the murder of Malha Ram and sentenced him to undergo imprisonment for life and pay a fine of Rs. 500/. In default of payment of fine he was further sentenced to undergo rigorous imprisonment for six months. Mangtu, Krishan, Dharmbir and Hawa Singh were convicted under Sections 325/34, Indian Penal Code for the injuries of Balwan and Hukam Kaur PWs and each of them was sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 100/. In default of fine each of the accused was directed to further undergo rigorous imprisonment for three months. All these four accused were also convicted under Sections 323/34, Indian Penal Code, for the injuries of Jit Pal and Dhupal PWs and sentenced to undergo rigorous imprisonment for six months substantive. Sentences were directed to run concurrently.

Feeling dissatisfied with the order of conviction, Mangtu, Krishan, Dharambir and Hawa Singh have come to this court in appeal.

All the eyewitnesses who were injured in the incident had implicated all the 10 accused for their injuries. The trial Court has acquitted six accused out of them. Only Mangtu, Krishan, Dharmbir and Hawa Singh accused have been convicted. The learned trial Judge also found as a fact that Section 34 of the I.P.C. was not attracted for the offence of murder and for that reason out of the convicted accused he acquitted Mangtu, Krishan and Hawa Singh accused for that charge. The State has not challenged the judgment of the learned trial Judge on these two points by way of appeal which, in other words, means that it has been accepted. We have to appreciate the prosecution evidence in view of these findings, which have not been challenged through appeal by the State.

In this case all the ten accused were charged under Sections 302/149 I.P.C. for the murder of Malha Ram. Nine accused have been acquitted for that charge. After the acquittal of nine other accused, Dharambir accused alone could not be convicted for the substantive offence of murder under Section 302, Indian Penal Code. At the time of commencemnt of trial, Dharmbir accused along with his nine other accused was charged not for the substantive liability for the commission of murder but for the vicarious liability. This was the charge which was read out to him and to which he pleaded not guilty. The trial Court had appraised Dharmbir accused only regarding the vicarious liability. He was to formulate his defence only to meet the charge. Which was framed against him. At the fag end of the case, the court without amending the charge or exhibiting its mind that he is to be punished for the substantive offence could not punish him in that manner. Dharambir accused is prejudiced in his defence. This principle has been enunciated by the Supreme Court in Nanak Chand v. State of Punjab, AIR 1955 SC 274.

There is another defect in his conviction. According to the prosecution, Dharambir, Raghbir and Sobha Ram accused had caused injuries on the head and neck of Malha Ram deceased. Raghbir and Sobha Ram accused, who are similarly placed as Dharmbir accused, have been acquitted. Dharmbir accused by this decision could not be differently treated than his two acquitted associates.

The net result of this is that the conviction of Dharambir accused under Section 302, Indian Penal Code, is bad and his appeal is accepted and he is acquitted of the charge of murder.

The learned trial Judge proceeded to convict the accused for the offences regarding grievous hurts of Balwan and Hukam Kaur PWs without applying his conscious mind to the evidence. Balwan had two grievous injuries on his left leg and head. Grievous hurt on the left leg was attributed to Ram Kumar accused, who had been acquitted. Once the main accused is acquitted of the charge, the remaining persons cannot be said to be liable on the ground of vicarious liability.

The prosecution witnesses were unable to state the name of the author of the head injury of Balwan PW13. The conviction on such a vague evidence for the head injury of Balwan under Sections 325/34 of the Indian Penal Code cannot be rested.

Sht. Hukam Kaur PW15 had one grievous hurt on her right thumb. According to her Ram Kumar accused was the author of that injury Ram Kumar has been acquitted. After the acquittal of Ram Kumar the other accused could not be convicted for the injuries attributed to him, because if Ram Kumar accused was not guilty, his coassociates would also be not guilty.

For these reasons the judgment of the learned trial Judge convicting the accused under Sections 325/34, Indian Penal Code, for the grievous hurts on the person of Smt. Hukam Kaur cannot be maintained.

The last offence for which the accused have been convicted is under Sections 323/34, Indian Penal Code, for the injuries of Jit Pal and Dhupal PWs. Sobha Ram, Krishan and Mangtu were stated by Jit Pal PW to have caused him simple injuries. Sobha Ram has been acquitted. If the conviction has been registered for the part played by Sobha Ram, the conviction could not be maintained. Regarding Mangtu accused it can be said after the acquittal of all the accused on the other charges, that he was acting in the right of private defence as he and his companions to had suffered injuries on their person.

For the foregoing reasons we do not find any plausible reason to uphold the order of conviction. The learned trial Judge, it appears, did not devote proper attention to the evidence on the record while passing this judgment. The appeal is, therefore, accepted and the order of conviction is set aside and they are acquitted of the charges.