Partap Singh and Others and Ajit Singh and Others vs State of Haryana

A.N. Jindal, J.—This judgment of mine shall dispose of aforesaid two Criminal Appeal Nos. 567-SB and 632-SB of 1995, one preferred by Partap Singh, Balwan Singh and Chattar Singh and the other preferred by Ajit Singh, Mehar Singh and Kanwar Singh, against the judgment dated 17.07.1995, passed by Addl. Sessions Judge, Sonipat, convicting all the six accused as under:

Under Section 304 Part II IPC : To undergo R.I. For a period of 7 years and to pay a fine of Rs. 10,000/-

Under Section 325 I.P.C : To undergo R.I. for a period of one year and to pay a fine of Rs. 5,000/- each

Under Section 323 I.P.C : To undergo R.I. for a period of six months.

The two sets of accused belonging to different families; Partap Singh, Balwan Singh and Chattar Singh are the sons of Indraj whereas Ajit Singh, Mehar Singh and Kanwar Singh are the sons of Bhagwana. Both hail from village Naina Tatarpur District Sonipat.

Ram Narain (PW9) had purchased some land from one Sardara resident of Village Kasandi about two decades back which had annoyed the accused-party, on account of which criminal cases were also going on in between the parties.

On 18.11.1991 at about 7:00 a.m., Ram Narain alongwith his son Suraj Mal, grand son Rajinder (PW8) and Sumer had gone for sowing the wheat crop in their land. The accused Partap Singh, Ajit Singh, Mehar Singh, Kanwar Singh, Balwan Singh and Chattar Singh alongwith their co-accused namely Kehar Singh (since declared proclaimed offender) emerged therefrom out of Arhar Crop. Mehar Singh and Partap Singh were armed with jailis, Kanwar Singh with a gandasa and the rest of the accused were armed with lathis. They exorted for not sparing Ram Narain and his grand sons and attacked upon them. First of all, Kehar Singh inflicted a gandasa blow from the blunt side on the left leg of Rajinder Singh. accused Ajit Singh inflicted a lathi blow on his right arm and accused Kanwar Singh inflicted lathi blow on his left arm. Accused Ajit Singh again gave a lathi blow on the right thumb of Ram Narain, accused Mehar Singh gave a jaili blow on his right arm, accused Kanwar Singh inflicted a lathi blow on his left leg. Accused Partap Singh inflicted a jaili blow near the left elbow and accused Balwan Singh inflicted a lathi blow on his head. All of them also caused injuries to Suraj Mal whereas Sumer Singh (PW10) had run away out of panic. However, he witnessed the occurrence while hiding himself. The accused had also twisted the arms and legs of Ram Narain, Suraj Mal and Rajinder Singh and caused them injuries. After the occurrence, Sumer Singh (PW10), went to the village and came alongwith his mother in a tractor and they shifted all the three injured to Civil Hospital, Sonepat.

On receipt of the information about the injuries suffered by Ram Narain etc. at the hands of the accused, ASI Ram Kumar, went to Civil Hospital, Sonepat and collected the medico-legal reports of the injured. After obtaining the fitness certificate of Rajinder Singh from the doctor vide opinion Ex.PN/3 at 12:30 p.m., he recorded his statement and referred the same to the police station, on the basis of which FIR No. 365 dated 18.03.1991 was recorded at Police Station Ganaur under Sections 323, 324, 325, 307, 148 and 149 I.P.C. On enquiry Suraj Mal-injured was still found unfit to make the statement. Thereafter, ASI Ram Kumar proceeded to the place of occurrence and prepared the rough site plan Ex.PO depicting the place of incident. He took the blood stained earth vide memo Ex.P8. On 19.11.1991, Suraj Mal was declared fit to make the statement vide opinion Ex.P/1 and his statement was recorded accordingly. The accused Partap Singh was arrested on 23.11.1991. On 27.11.1991, he got recovered jaili Ex.P1 from his house which was taken into possession vide memo Ex.PG. Dr. Promila Jain (PW7), Radiologically examined Rajinder Singh (PW8) and found fractures on both bones of both fore-arms vide report Ex.PC. Similarly, on examination by the radiologist about the injuries suffered by Ram Narain, fractures of proximal phalynx of right finger, right humerous, both bones of left fore-arm were detected vide report Ex.PD/1 to Ex.PD/6. Suraj Mal, injured had already been referred to Medical College & Hospital at Rohtak on 18.11.1991 where he expired on 29.11.1991. The autopsy on his body was conducted on 30.11.1991. According to Dr. Madan Gopal (PW16), Suraj Mal died as a result of shock on account of the injuries and their complications. On 28.11.1991, SI SHO Nar Singh took the investigation into his hand. On 04.12.1991 the accused was arrested, weapons were recovered and on completion of investigation, the accused were challaned and charge-sheeted u/s 302 I.P.C. alongwith other offences under Sections 148, 323, 325 read with Section 149 IPC to which they pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined SI Lal Singh (PW1), , Constable Sukh Lal (PW2), Head Constable Ranjit Singh (PW3), Constable Suresh Kumar (PW4), Baljit Singh (PW5), Ranbir Singh (PW6), Dr. Promila Jain (PW7), Rajinder Singh (PW8), Ram Narain (PW9), Sumer Singh (PW10), Balwan Singh (PW11), Dr. Kulbir Singh (PW12), Dr. D.P. Lochan (PW13), SI Ram Parkash (PW14), ASI Ram Kumar (PW15), Dr. Madan Gopal (PW16) and Inspector Nar Singh (PW17). After tendering into evidence report of Forensic Science Laboratory Ex.PR, the prosecution closed its evidence.

When examined u/s 313 Cr.P.C., all the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, they further added that there was a dispute between the complainant party and the son of one Amar Singh over the payment of an amount of Rs. 30,000/- towards some bank loan. Son of Amar Singh may have caused injuries to the complainant party due to that dispute and they were involved in the case due to old enmity between them. However, in defence, they did not lead any evidence.

After scrutiny of the evidence, the trial Court while acquitting the accused u/s 302 I.P.C., convicted them under Sections 304 Part II, 325, 323 read with Section 149 IPC and sentenced them accordingly. Hence this appeal.

I have heard learned Counsel for the parties and scrutinized the record of the case very carefully.

While opening the arguments, learned Counsel for the appellants raised three fold arguments. Firstly with regard to delay in FIR, secondly the prosecution has failed to establish the identity of the place of occurrence and thirdly that since the witnesses have failed to give details of the injuries, therefore, the offence if any, for which they could be convicted under Sections are 326, 325 IPC and not u/s 304-A IPC.

As regard the first contention, it may be observed that occurrence in this case took place in the fields on 18.11.1991 at about 7:00 a.m. FIR was registered on the statement of Rajinder Singh Ex.PE in the hospital at about 1:00 p.m. The injured arrived in the hospital at 10:00 a.m. on 18.11.1991. The argument that Dr. D.P. Lochan (PW13), who medically examined the injured has stated that the medico legal examinations of the injured Suraj Mal, Ram Narain and Rajinder Singh were conducted at 10:00 p.m. Onwards on 18.11.1991, is of no consequence as the time appears to have been mentioned due to clerical mistake or in. The medico legal report Ex.PL of Suraj Mal shows that it was prepared at 10:00 a.m. and not 10:00 p.m. on 18.11.1991. The wrong time appears to have been mentioned by Dr. D.P. Lochan (PW13) as 11:00 p.m. because the FIR was recorded at 1:00 p.m. where there is reference to the injuries suffered by all the three accused. That apart, the injured witnesses namely Rajinder Singh, Ram Narain and Sumer Singh have stated that they had reached the hospital at 11/11:30 a.m., therefore, the question of examining them by the doctor in night, does not arise.

Thus, while calculating the time between the injury and the FIR, no unexplained delay could be said to have occurred. The injured had reached the hospital at 10:00 a.m. or 11:00 a.m. respectively. Opinion regarding the fitness of Rajinder Singh to make the statement was recorded at around 12:30 p.m. and investigating officer recorded his statement at 1:00 p.m., as such, FIR appears to be prompted one. No unnecessary time appears to have been wasted by the Investigating Officer in recording the FIR.

As regards the place of incident, PW6 Ranbir Singh has stated in his cross-examination that the occurrence took place on the southern side of the village whereas the two witnesses namely Ram Narain (PW9) and ASI Ram Kumar (PW15) have stated that the occurrence took place on the northern side of the village abadi, again Ranbir Singh has stated that occurrence took place at the distance of three killas from the metalled road whereas ASI Ram Kumar has stated that the place of occurrence is at a distance of two killas from the metalled road. However, these discrepancies regarding the distance-direction of the said place from the road could be in natural course of events and appear to have occurred for the reasons that witnesses are quite rustic and illiterate and are not so articulate about the distance and directions and they could not be expected to make exact measurement of time, distance and direction but it is definite that incident had taken place in the fields and the aforesaid three witnesses have consistently stated that the accused had caused them injuries and motive qua the injuries stands well established. There is no reasons to falsely implicate the accused by leaving the real culprits. There is no counter version of the incident offered by the accused. As such, even if the place of occurrence is not properly established, the same does not go to the root of the case particularly when there is a reliable evidence to fix the scene of occurrence. Similar observations were made in case Raghunandan Vs. State of U.P., .

Now coming to the next contention that injuries have not been properly explained, I need to reproduce the medical evidence which is as under:

On 18.11.1991 itself at 10:00 a.m. Suraj Mal was medico legally examined at Civil Hospital, Sonipat by Dr. D.P. Lochan (PW13) and following injuries were noticed on his person per medico legal report Ex.PL

There is multiple punctured wound of variable size 1 cm x 1.5 cms over the middle of the right leg. Fresh bleeding was present.

Two punctured wound of the size of 1 cm x .5 cms in the size over the middle of the left leg about 7 cms apart, fresh bleeding was present.

Multiple punctured wound of a variable size over the right arm, dorsely as well as on venteral surface. Underlying bone was fractured. Advised x-ray right arm. AP and lateral view.

There is penetrating wound .5 x .3 cms in size over the left arm in the middle and it was muscle deep.

There was a lacerated wound 2 cms x 1 cm in size over the left fore-arm 2 cms above the left wrist joint and it was muscle deep.

There is a lacerated wound of the size 1.5 x .5 cms over the right frontal area of scalp and it was muscle deep, advised x-ray skull, AP and lateral view.

There is lacerated wound 2.5 x .5 cms over the middle of the scalp. It was muscle deep.

There is lacerated wound of the size 1.5 x .5 cms over the left parietal area of scalp. It was muscle deep.

There is penetrating wound of the size .2 cms over the left scapular region. Advised x-ray chest. P.A. View and surgeon''s opinion.

Injuries Nos. 1 to 4 and 9 out of these injuries were found to have been caused by sharp pointed weapons the remaining by blunt weapons.

On the same day at 11:00 a.m. Rama Nand was also medico-legally examined by this very doctor and the following five injuries were noticed on his person per medico-legal report Ex.PM:

There is a lacerated wound of the size of 3.5 cms x .5 cms over the right hand between the little finger and ring finger. Advised x-ray right hand. AP lateral view.

There is fracture of right humerous. Advised x-ray right humerous, advised x-ray A.P. Lateral view.

There is lacerated wound 1.5 x .5 cms in size over the left leg. It was muscle deep.

There was lacerated wound of the size 2.5 cms x .5 cms over the left fore-arm. Advised x-ray AP and lateral view.

There is lacerated wound of the size 1.5 x 1 cms in size over the middle of the scalp. Advised x-ray skull A.P. And lateral view.

Similarly, on that very date, Rajinder Singh was medico-legally examined by this very doctor at 11:10 a.m. and following 4 injuries were noticed on his person per medico-legal report Ex.PN:

There is diffused swelling over the middle of the right fore-arm and underlying bone fractured. Advised x-ray right fore-arm A.P. And lateral views.

There is a diffused swelling over the middle of the left fore-arm and underlying bone was also fractured. Advised x-ray fore-arm. AP and lateral views.

There is a diffused swelling over the left leg just above the ankle join and underlying bone was fractured. Advised x-ray left leg. AP and lateral views.

There is diffused swelling over the right leg above the ankle joint. Advised x-ray right leg. AP and lateral views.

All the injuries on the persons of the aforesaid three injured were found to have been caused by blunt weapons with a probable duration of six hours.

Out of all these three accused, Suraj Mal, who had suffered five punctured/penetrating wounds and also were lacerated wounds on his scalp and died on 29.11.1991. The cause of death of Suraj Mal, according to Dr. Kulbir Singh (PW12), was shock on account o the injuries and their complications. The accused had previous enmity and they all were relating to one fraction and members of the two families. They flocked together armed with jelies and lathies. They came out together and caused injuries to them. It was very difficult for the injured to explain as to which of the accused had caused which of the injuries. The witnesses tried to explain some of the injuries which they could oversee but all the 18 injuries were very difficult to be explained particularly when there were six persons to cover; as such non-mentioning of the specific injury to a particular accused is immaterial. Similar view was taken by the Full Bench Judgment of the Allahabad High Court delivered in case Gopal and etc. etc. v. State of U.P. 1999 (3) All India Criminal Law Reporters 267 wherein it was observed as under:

Regarding Guddu, it is said that another Guddu of the same village was arrested. He was challaned in some excise case and instead this Guddu has been implicated. This is a mere suggestion. He did not state that he is not brother-in-law of Mukhtar. That was sufficient to disclose his identity. These facts will not help the accused person. It was again argued that the assailants are said to be seven in number Vijai Kumar has been inflicted two injuries while others only one injury. The total injuries are six in number. It is not said that who injured to whom. It was argued that there is no evidence of any common object and some of the accused persons may be innocent as well, there may be doubt of false implication. It was argued that in these circumstances all the accused persons are entitled to acquittal. We have considered this aspect of the case as well. It is not the case of fire. Knife can be assaulted from a very close range. If 4 or 5 persons are surrounded by seven person, who inflicted injury to whom cannot be said by anybody; when one is in a very close range then alone he can be assaulted. All the seven persons have come together. They were sitting together on cots, they teased the ladies together and flashed torches together. They made sarcastic remarks together. When mar-peet started, all of them rose, assaulted the victims and killed them. If in that process the witnesses are unable to say who caused injury to whom, it is immaterial. All are bound by the acts of others as common object can be created even at the spur of the moment.

The aforesaid judgment is applicable to the facts of the present case on all the fours. Here in this case, three persons were attacked by the six persons, who were armed with deadly weapons. They not only caused injuries on the non-vital parts but scalp of the deceased Suraj Mal. Thus, it would also be difficult to say that the accused could not be convicted u/s 304 Part-II I.P.C. Though the doctor has stated that the deceased did not die instantly and the injuries were collectively sufficient to cause death and Suraj Mal died on account of the nature of injuries and their complications but in the manner in which they attacked, the accused certainly had the requisite knowledge that the injuries were likely to cause death. So far as the contention that in case where the accused appear to have committed an offence, then in such cases, the common intention could not be inferred.

Similarly, it was observed in case Sukh Lal and Others Vs. The State, as under:

It is logically wrong to hold that Section 34 can never be applied to a case under the second part of Section 304. A person commits an offence u/s 304 when he intends to cause an injury which is not necessarily fatal but which he known is likely to prove fatal. The intention to do something is although not the intention to commit murder. The intention in so far as it relates to the causing of injuries may be shared by other persons. The knowledge that an injury is likely to prove fatal may also be shared and if that be so then a person can be held vicariously liable under the second part of Section 304.

In the present case, the death may not be directly connected to the injuries but it could be traceable to the injuries as some complications arose with the passage of time. Therefore, this circumstance was also sufficient to establish the knowledge of the accused that injuries caused to him were likely to cause death. Thus, the trial Court was quite fair in convicting all the accused under Sections 304 Part-II, 325, 323 read with Section 149 IPC.

Now coming to the quantum of sentence, the trial Court has awarded a reasoned order while awarding sentence. However, I need to differ with the same to the extent of awarding sentence to Chattar Singh, who in his statement claimed himself to be 70 years old. The trial Court did not considerate this over the factum of his age. His statement was recorded in the year 1995, as such he must be about 85 years old by now. The jail certificate produced before me reveals that Chhatar Singh has already undergone seven months and 10 days of the substantive sentence. No information is available if he is alive or dead. In any case, keeping in view his age it would not be in the fitness of things to send him to imprisonment again and allow him to rub his bones and die in the four walls of the jail.

Thus, the sentence of Chhatar Singh needs to be reduced to that of already gone without any alteration in the sentence of fine.

Resultantly, the aforesaid two appeals are dismissed with the aforesaid modifications.

Copy of this order be sent to Chief Judicial Magistrate, Sonipat, for compliance.