Mukhtiara and Others vs State of Haryana

H.S. Brar, J.—This is a revision-petition against the judgment dated 16-9-1987 of Sessions Judge, Kurukshetra vide which he had dismissed the appeal of the petitioners filed against the judgment of conviction dated 9-12-1986 and order of sentence dated 10-12-86 of the Judicial Magistrate, 1st Class, Kaithal. The learned Judicial Magistrate vide his order dated 9-12-1986 convicted all the accused-petitioners under Sections 326/324/323/148 read with Section 149 of the Indian Penal Code and vide order dated 10-12-1986 sentenced them to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rest. 200/- each u/s 326, I.P.C. R. I. for one year u/s 324, I.P.C, R. I. for six months u/s 323, I. P. C. and also R. I. for 6 months u/s 148, I.P.C. In default of payment of fine petitioners-accused were ordered to undergo further simple imprisonment for a period of one month. The learned Sessions judge, vide the aforesaid order dated 16-9-1987 maintained the conviction, however, reduced the sentence of two years to six months u/s 326, I.P.C, R. I. one year to four months u/s 324, I.P.C., R. I. six months to three months u/s 323, I.P.C. and R. I. six months to two months u/s 148, I. P. C. All the sentences were ordered to run concurrently. Thus, this revision-petition before me.

The facts in brief are that complainant Zile Singh son of Hem Raj, resident of Sishmore had a shop in the Harijan Basti. On 2-5-1985, he was sleeping in front of the shop at 9.00 p.m. when he heard the alarm "Mar Diya Mar Diya". Then he reached the spot along with Ram Sarup son of Swaran and Amar Singh son of Mangal. When they reached there they found that Hari Singh the son of the complainant''s uncle was lying in the Bara. Mukhtiara son of Khema armed with a Gandasi, Shankar son of Khema armed with Jali, Chandu son of Gokal armed with a Barchhi, Om Parkash son of Chandu armed with a Jalli, Lal Singh son of Rulia armed with a Jalli, Tek Chand son of Rulia armed with Gandasi, Bhana son of Diwana armed with Gandasi, Hoshiara son of Bhaga armed with Gandasi, were beating Hari Singh with their respective weapons. Mukhtiara gave Gandasi blow on the right shoulder of Hari Singh and all other accused started giving beatings to Hari Singh with their respective weapons. On raising alarms by the complainant, Bija son of Kanhiya, Rati Ram son of Amar Singh also reached on the spot. They also saw the accused inflicting injuries on the person of Hari Singh. On seeing the witnesses, the accused ran away with their respective weapons.

The motive for giving the injuries has been described that there was a dispute between the children of Hari Singh and Mukhtiara on the tank, on the same day and the women of both the families also abused each other. It was also alleged that the accused inflicted injuries on the person of Hari Singh with a common object. Hari Singh was, therefore, removed to Civil Hospital, Kaithal where he was medically examined and after receiving the rukka Ex. PE Phool Kumar ASI rushed to the Civil Hospital, Kaithal. Then the ASI Phool Kumar obtained the opinion of Dr. J. D. Popli, Ex. P. 4 and the said doctor opined that Hari Singh was unfit to make his statement. In this situation, statement of complainant Zile Singh Ex. PA was recorded and a rukka was sent to the police station on the basis of which First Information Report Ex. PA/1 was recorded.

The Investigating Officer Shri Phool Kumar ASI, went to the spot on 3-5-1985 and prepared the, rough site plan Ex. PW-5/B with regard to the place of occurrence. The statements of the witnesses u/s 161, Cr. P. C. were recorded by ASI Phool Kumar. Medico-legal report and X-ray report of the injured were also taken into possession. The accused were arrested. After completion of necessary investigation report u/s 173, Cr. P. C. was prepared by Shri Raj Pal Singh S. I. the then SHO of the Police Station and the same was forwarded to the Court for the trial of the accused.

Copies of documents as provided u/s 207 of the Code of Criminal Procedure were supplied to the accused and the accused were charge-sheeted for the commission of the offences punishable under Sections 326 324 323 148 read with Section 149, I. P. C. to which all the accused pleaded not guilty and claimed trial.

The learned appellate Court dismissed the appeal and maintained the order of conviction of the Judicial Magistrate, however, the sentence was reduced as stated above in the opening para of the judgment.

In support of its case, the prosecution has produced as many as eight witnesses. The statements of the accused were also recorded u/s 313, Cr. P. C, wherein the accused have refuted all the allegations of the prosecution levelled against them.

DW-1 Suresh Chand Sharma, Draftsman, Kaithal, had prepared the site plan Ex. D. 1 on the spot. DW2 Ram Pal a neighbour has testified on oath that the Bara of Kehru is situated near his house. He further stated that about 1 Vi years ago, from the date of his statement in the Court at 9.00 a.m. he heard the alarm and reached on the spot. There Hari Singh was lying in an injured condition in the Bara of Kehru. He never saw any accused inflicting any injury on the person of Hari Singh. On the spot, Ramesh and other neighbours had come and thereafter he called the family members of Hari Singh who took the injured Hari Singh.

I have heard the learned counsel for the parties and have perused the record of the case with their help.

PW-2 Hari Singh injured witness has stated in oath before the trial Court that about a year before the date of the statement in the Court, he went to the house of Balmiki in order to fetch the labourers. When he reached in the- Bara of Kehru, he saw all the accused coming there with their respective weapons i.e. Gandasis and Jallies. Mukhtiara accused gave a gandasi blow on his right shoulder. Teki accused gave a gandasi blow on his head, Bhana accused gave a gandasi blow and Hoshiara accused also gave a gandasi blow to him. At this he fell down and thereafter, all the accused inflicted injuries on his person with their respective weapons. He had seen this occurrence in the streetlight. He then deposed at the trial that Ram Sarup, Zile Singh, Ratia, Amar and Vijay came there and they rescued him from the clutches of the accused. He has further deposed that on the same day, there was a dispute with his children on the tank. Thereafter, their ladies also quarrelled on the same matter and then all the accused inflicted injuries due to this enmity with an intention to put him to death.

Zile Singh PW-1 stated on oath at the trial that about a year before the date of statement in the Court, he was sleeping in front of his shop at 9.00 p.m. He heard the alarm. Thereafter, he went to the spot in the Bara of Kehru. Ram Sarup and Amar Singh witnesses also reached there. Mukhtiara gave a gandasi blow on the right shoulder of Hari Singh; Hoshiara gave another gandasi blow on the head of Hari Singh; Teka also gave a gandasi blow on the person of Hari Singh. Chander accused had Barchha. Om Parkash Shankar and Lal Singh accused had jallis. Chander accused gave a Barchha blow on the person of Hari Singh. Shanker, Om Prakash and Lal Singh accused also inflicted Jalli blows to Hari Singh. Ram Sarup, Amar Singh, Rati Ram and Bija also reached on the spot. They saw the whole occurrence. After inflicting injuries to Hari Singh all the accused ran away with their respective weapons.

Another eye-witness of the occurrence Ram Sarup (PW-3) has deposed at the trial that after hearing the alarm he reached the spot where he found that some persons were beating Hari Singh but he could not identity the complainant. He deposed that he could not identify whether the assailants were the accused or other persons. PW-4 and other eye-witnesses also corroborated the version of the complainant and injured and testified on oath in the trial Court that after hearing alarm he went to the spot where he found that Mukhtiara accused was armed with gandasi, Hoshiara, Bhana were armed with gandasi, Shankar-had Barchha and Parkash and Lal Singh had Jallies. The accused, according to him, had inflicted the injuries on the person of Hari Singh. Mukhtiara gave a gandasi blow on the right shoulder of Hari Singh, Bhana gave a gandasi blow and Hoshiara also gave a gandasi blow. The other accused also inflicted injuries on the person of Hari Singh, with their respective weapons.

Dr. J. D. Popli, Medical Officer, on 3-5-1985 at about 1.10 a.m. examined Hari Singh and found the following injuries on his person :-

Incised wound 3 cm. x 1 cm. in the supra-scapular region. It was muscle deep and was freshly bleeding. The injury was present on the right side (Advised X-ray shoulders scapular).

M. contusions on the back of the left side of chest and shoulder region varying from 25 cm. x 3 cm. to 15 cm. x 3 cm. sizes. And were reddish in colour.

Contusion on the left side of the neck 15 cm. x 2 cm. in upper and latter side of supraclavicular region.

Incised wound 3.5 cm. x 1.5 cm. on the left side of the face near the eye and it was muscle deep.

Lacerated wound 2.5 cm. x 3/4 cm. on the front of the left forearm in lower 1/3 hard and muscle deep.

L. W. 1 cm. x 1.5 cm. on the back of the left forearm in lower 1/3 hard and it was bone deep.

Contusion 2 cm. x 2 cm. on the back of medial side of the left forearm (Advise X-ray).

L. W. 3.5 cm. x 1.5. cm. into bone deep on the left forehead and was freshly bleeding.

Lacerated wound 5 cm. x 1 cm. bone deep on the left frontal region antre-posteriorly placed fresh bleeding was present and it was near the mid line.

Lacerated wound 4 cm. x 1 cm. bone deep on the left parietal region 12 cm. above the external pinna.

External left pinna was lacerated with cartilage tear measuring 4 cm. x 1 cm. and was fresh bleeding.

Lacerated wound 2 cm. x 1 cm. on the right side of the face near the eye and was muscle deep.

Contusion 10 cm. x 3.5 cm. On the anterolateral side of the right upper arm.

Right eye was blue.

Contusion 15 cm. x 3.5 cm. on the back of the right shoulder with top abroaded area measuring 3 cm. x 1.5 cm.

Lacerated wound 2 cm. x 3/4 cm. on the top of the head in occipital region and was scalp deep.

Incised wound 3 cm. x 3/4 cm. on the back of the right forearm in middle 1/3 part. The wound was proximately skin deep and distally bone deep (Advised X-ray).

The duration of injuries was about 6 hours. Injuries No. 1, 4 and 17 were caused by sharp edged weapons and others were caused by blunt weapons Ex. P. 1 is the correct carbon copy of original MLR Ex. P 2 is the diagram showing the injuries. He also proved the rukka Ex. P 3, his opinion Ex. P4, P5 and Ex. P6. He also declared injury No. 1 grievous which was caused by sharp edged weapon. His opinion to this effect is Ex. P. 7, PW 7 is the formal witness who proved the First Information Report, Ex. PA/1, PW8 Dr. N. K. Dhawan had X-rayed the injured Hari Singh and found fracture of the scapula (left), fracture of the right scapula and fracture of the left ulna and there was also fracture of scalp. His opinion is based on his detailed report Ex. PW7/A, and the X-ray films Exs. PA to P 14.

Both the Courts have held that there is no delay in lodging the First Information Report and I agree with the reasoning given by the Courts below to that effect. The occurrence took place in this case at 9.00 p.m. on 2-5-1985. The First Information Report was recorded on 3-5-1985 at 5 a.m. Admittedly, after the occurrence the injured Hari Singh was removed to Civil Hospital, Kaithal where he was medically examined at 1.10 a.m. on 3-5-1985 and thereafter, the doctor sent rukka Ex. P. 3 to the SHO at 1.15 a.m. after receiving the rukka, Phool Kumar ASI reached the hospital and obtained the opinion of Dr. J. D. Popli, Ex. P. 4 who opined that Hari Singh was unfit to make the statement. This opinion was given at 4.30 a.m. on 3-5-1985. Thereafter, he immediately recorded the statement of Zile Singh eye-witness at 4.45 a.m. on the basis whereof formal FIR was recorded at 5 a.m. In this way sometime was taken for removing the injured to the Civil Hospital and thereafter, some more time was taken by sending the rukka to the Police Station. Moreover, in such cases it is the first anxiety of the attendants to take the injured to the hospital and get him treated rather than to rush immediately to the Police Station for lodging the First Information Report. 16. In these circumstances, as stated above, I endorse the reasoning of the Courts below and hold that there is no delay in lodging the First Information Report.

Other objection taken before the Courts below by the accused was that Zile Singh (PW1) did not give full description of the injuries inflicted by the accused on the person of the injured though he has described so at the trial before the Court. He has not described the particular injuries given to Hari Singh by each and every accused. This plea of the counsel for the accused was rightly rejected by the Courts below. It is not possible for an eye-witness to describe each and every injury given by each and every accused to the injured when there are so many persons attacking an injured person at a time. Thus, this plea that PW-1 Zile Singh did not meticulously describe the injuries given by each and every accused on the person of the injured is also without any force and has rightly been rejected by the Courts below. Moreover, there are large number of injuries on the person of the injured Hari Singh and in all there were 17 incised as well as contusions found on the preson of the injured.

Medical evidence also corroborates the ocular testimony of the eye-witnesses. As many as 17 incised and contused wounds have been found on the body of the injured. Moreover, in the case of an injured witness, there is an oblique chance of false implication of a stranger. Statement of the injured Hari Singh (PW-2) on oath has been fully corroborated by the eye-witnesses and the medical evidence. I, thus, do not find any infirmity in the judgments of the Courts below. Resultantly, this revision petition is dismissed.