Phool Narain and another vs State of Haryana

V.K. Bali, J.—Challenge herein is to an order of conviction and sentence recorded by the learned Additional Sessions Judge, Faridabad, dated August 14, 1995, vide which the appellants herein, namely, Phool Narain son of Mahajan and Kastura son of Anboliya, residents of Jhuggi Rahul Colony, NIT, Faridabad, have been held guilty of intentionally causing death of Hari Singh. They have, thus, been held guilty u/s 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life as also to pay fine of Rs. 500/-, or in default of payment of fine, to further undergo imprisonment for six months.

Prosecution version was unfolded by Hazar Khan, PW 5, when on March 9, 1993 at 11.30 a.m. he stated before Dhurg Pal, Head Constable, Police Post No. 3, Police Station NIT, Faridabad that he was residing in Rahul Colony, NIT, Faridabad and was doing labour work. On March 8, 1993 at about 7 p.m., Hari Singh, Phool Narain and others had an altercation with each other after playing Holi and on that they had thrown brick bats on each other. During exchange of brick-bats, one stone had hit on the head of his wife. After bandage and medical examination from B.K. Hospital at about 8 p.m., he reached at his Jhuggi. On hearing a noise from the Jhuggi of Hari Singh, he rushed towards that side. In the street, Phool Narain, Mansa Ram, Kallu Ram, Kastura, Jaldev and Santar, armed with lathis were abusing Hari Singh and they called him outside. Then, Hari Singh came out from his Jhuggi in the street and asked them as to why they were abusing him. On this, Mansa Ram, Kalu Ram, Jaldev and Santar said that they would see him. On saying this, Phool Narain and Kastura gave lathi blows one after the other which hit on the head of Hari Singh. Hari Singh fell down. He further stated that wife of Hari Singh and his son Bharat were also seeing the occurrence at the spot. They all rescued Hari Singh, otherwise they would have beaten him more. After that, Phool Narain and his companions ran towards their Jhuggis. His family members carried Hari Singh to B.K. Hospital, Faridabad and got him admitted there.

From the narration of events given by Hazar Khan, it would, thus, transpire that whereas the occurrence leading to death of Hari Singh took place on March 8, 1993 at 8 p.m., the matter was reported to the police on March 9, 1993 at 11.30 am. Inasmuch as the deceased died on the intervening night of March 11-12, 1993, (12.20 a.m.), no special report was sent to the concerned Magistrate.

The prosecution, in its endeavour, to bring home the offence against the appellants and others, examined Dr. A. K. Gupta, Medical Officer, B.K. Hospital, Faridabad as PW 1. He stated that on March 8, 1993 at 7.35 p.m. he medical examined Hari Singh and found following injuries on his person :

"1. Two lacerated wounds 5 x 1 cms and 0.5 cm muscle deep on left parietal region of scalp with bleeding.

Lacerated wound 2 x 1/2 cm skin deep on the right parietal region of the scalp with bleeding."

The doctor sent ruqa, Ex. PB, to the Police Station informing about the arrival of the injured. On March 9, 1993 the patient was referred to Safdarjang Hospital, Delhi vide his report, Ex. PD. He opined that the injuries suffered by Hari Singh were sufficient to cause death in ordinary course of nature.

On the same day, he also examined Pushpa wife of Hazar Khan and found following injuries on her person :

"1. Lacerated wounds 2.5 x 0.5 cm on the left side of forehead with bleeding. X-ray was advised.

Complained of pain on her back. But there was no external mark of injury."

In his cross-examination, the doctor stated that he could not say as to who accompanied Hari Singh injured to the hospital. In the MLR, however, he had mentioned that some of his friends had brought him in the hospital. He had not enquired the name of friend who had brought the injured to the hospital. He further stated that possibility of injuries on the person of Hari Singh by a fall on hard surface could not be ruled out.

Dr. Chander Kant, from Safdarjang Hospital, Delhi was examined as PW 10. He stated that on March 12, 1993 he had conducted post mortem examination on the dead body of Hari Singh. The body was brought by Budhi Parkash of Police Station Vijaya Nagar and identified by him as also by Krishan and Charan Singh. He found that scalp of the deceased had a bandage. Eyes and mouth were closed. Rigor mortis was well developed in both upper limbs. Post mortem staining was also well developed on the back of body. He found following injuries on the dead body of Hari Singh :

"1. One stitched wound in right temporal region 8 cm circular in shape, total length 27 cm. total number of stitches were 30 (Surgical in nature).

One lacerated wound on right temporal parietal region and 10 cm above right ear. Size 4 cm x 2 cm x bone deep.

One lacerated wound on left parieto-temporal region, 11 cm above from left ear (two stitches were present and removed). Size was 5 cm x 3 cm x bone deep.

One stitched wound on left front parietal region. Number of stitches were two, which were removed for examination. Lacerated wound 2.5 cm x 2 cm x bone deep lacerated wound 8 cm above from left eye brow."

According to the doctor the approximate time since death was 15 hours. The cause of death was due to shock and head injury. The injuries were ante-mortem in nature. Sohan Lal, Draftsman appeared as PW 2 and stated that he had prepared the scaled site plan, Ex. PF with correct marginal notes. Raghbir Singh, ASI, appeared as PW 3. He only stated that he had recorded formal FIR, Ex. PG on receipt of ruqa Ex. PG/1 from Durag Pal, HC, Kishori. PW 4 stated that on March 9, 1993 he was going towards police post for making enquiry about the case when Durag Pal HC met him on the way near the house of accused Phool Narain. One more person was with him. Both of them were having lathis which were recovered from them. He further stated that he could not identify out of the accused who was the other person. The lathis were sealed and taken into possession vide memo Ex. PH. In his cross-examination, he stated that he was not familiar with Phool Narain earlier and since Durag Pal, HC had enquired about his name, so he came to know of his name. He further stated that many persons had gathered at the spot when lathis were recovered at the spot. In his presence none other than him attested the memo. Hazar Khan, the eye-witness and first informant was examined as PW 5. He stated that on the occasion of last Holi at about 5 p.m., some persons quarrelled with Hari Singh. They were exchanging stones and were throwing brick bats on the members of the other party. His wife Pushpa and many other persons were there. His wife also sustained injuries but he did not know who threw the brick bat at her. He further stated that he did not know as to whether the accused were also present at the spot at that time or not. He, however, took his wife to the hospital and what happened later on or on the next day he did not know. He further stated that he did not witness the occurrence and that none of the accused had inflicted any injury. He was declared hostile and cross-examined by the Public Prosecutor. Sharbati, wife of Hari Singh, deceased, however, supported the prosecution version. In her cross-examination she stated that at about 7 p.m., when the first occurrence took place, she was preparing meal in her house near the main door. It was dark night. After the accused had inflicted blows to Hari Singh, several persons turned up from the neighbourhood. Hari Singh had fallen unconscious after sustaining injuries. She had neither fallen nor had become unconscious. She further stated that her son Kishan had gone outside but had turned up some time before the occurrence. His son Kishan returned from Palwal by the train of 5 p.m. She, however, could not say as to how many lathi blows Phool Narain inflicted to them individually. Phool Narain gave two lathi blows to Hari Singh and kastura also aimed two lathi blows to Hari Singh but one lathi blow out of those fell at his head. Hari Singh was taken to hospital in a rickshaw. Her medico legal examination was not conducted nor she showed her injuries to the doctor as she was worried about the health of her husband. She also stated that Bharat sustained two injuries and his medico legal examination was also not got done. Her statement was recorded on March 10, 1993 when the spot was inspected. She admitted that one case under the Arms Act was registered against Hari Singh. She, however, denied the suggestion that the accused had not quarrelled with the deceased nor gave him any injuries and that due to inter-caste marriage, the persons from his father''s side were annoyed and that they caused her injuries in self defence. She admitted that first wife of Hari Singh was also alive. She lives in village Aherwan. Kishan son of Hari Singh, who was examined as PW 7 also supported the prosecution version. In his cross-examination, he stated that one day earlier to Holi he had gone to his village but had returned on the day of Holi at about 1-2 p.m. He was present even when the first occurrence had taken place. He further stated that his father had no enmity with the accused earlier. He, however, stated that his father had fallen unconscious and he and his mother had taken him to the hospital. Rajinder Singh, ASI appeared as PW 8 and he detailed the steps that he had taken while partly investigating this case. Durag Pal, HC appeared as PW 9 and deposed with regard to the steps that he had taken while investigating this case. In his cross-examination, he stated that ruqa was brought to him by a constable on March 8, 1993 at about 8 p.m. and he reached the hospital at about 8.45 p.m. The doctor had already given medical treatment to Hari Singh before his arrival. He stayed in the hospital for about half an hour. The hospital is 30 paces from the place where he met Hazar Khan. Even on March 8, 1993 he visited the spot during night but nobody met him at the spot. In the hospital, Pushpa wife of Hari Singh was with Hari Singh. Pushpa was not fit for making her statement and therefore her statement was not recorded. She was also under treatment and was lying on a separate bed. On March 9, 1993 Pushpa was, however, not in the hospital nor she was available at her house when he visited the spot. SI Budhi Parkash, who was examined as PW 11, stated that on March 9, 1993 when he was posted as Sub-Inspector, Police Station Vijay Nagar, Delhi, he had made an application, Ex. PK for taking statement of Hari Singh upon which the doctor gave his opinion that the patient was unfit to make statement. When examined u/s 313 Cr.P.C., appellants stated that they were innocent and had been falsely implicated. They examined in their defence Raja Ram as DW 1, who stated that he knew Kastura, Phool Narain and others. They were his neighbours. On March 9, 1993, on the last Holi, he was sitting at his home and the accused Kastura and others were also with him at his house. They heard a noise and went to the house of Hari Singh, who was lying on the ground. Three-four persons along with Maruti Van ran away from the spot. They gave hockey blows on the head of Hari Singh. Hari Singh was Harijan by caste and he married a woman, who was Rajput by caste and due to this enmity some relations of Sharbati gave blows by hockey to Hari Singh. Hari Singh had a criminal background and number of cases had been registered against him in the Courts of Judicial Magistrate, Palwal and Chief Judicial Magistrate, Faridabad. The accused did not give any lathi blow to Hari Singh and they had been implicated falsely. Sumer Singh, Ex. Sarpanch, who appeared as DW 2, stated that he knew Sharbati personally as she belonged to nearby village. She is Rajput by caste and Hari Singh deceased was Harijan by caste. Smt. Sharbati had left her husband Mant and used to reside with Hari Singh. Hari Singh had a criminal background. Hari Singh left the village because Sharbati wife of Mant used to reside with him. Kishori Lal, DW 3, another neighbour of the parties, deposed on the lines DW 1 made his statement which has already been noted above. After resultant trial, whereas appellants were convicted and sentenced in the manner indicated above, other accused, namely, Mansa Ram, Kalu Ram, Jaldev and Santra were acquitted. Mr. Brar, learned counsel for the appellants vehemently contends that the prosecution has miserably failed to bring home the offence against the appellants. The occurrence had not taken place in the way and manner as has been suggested by the prosecution. There is an unexplained delay in lodging the FIR and out of so many persons present, only wife and son of the deceased have come forward to depose in tune with the prosecution version and in fact they were not present at the scene of occurrence. The only independent witness, Hazar Khan, who happened to be the first informant as well, has not supported the prosecution version. Mr. Varinder Singh, learned Deputy Advocate General, Haryana, has, however, endeavoured his very best to sustain the order of conviction and sentence recorded by the learned Addl. Sessions Judge. We have heard learned counsel for the parties and carefully gone through the records of the case. After giving our thoughtful consideration to the points raised by learned defence counsel, we are of the firm view that the very genesis of the occurrence is shrouded in mystery. It is a case where it can be said with certainty that the occurrence had not taken place in the way and manner as has been suggested by the prosecution. It may be recalled that the preceding the occurrence leading to death of Hari Singh, there had been an altercation or throwing of brick-bats an hour earlier as well on the same day. As per the prosecution version, Pushpa wife of Hazar Khan was injured at about 7 p.m., i.e., in the first occurrence on March 8, 1993. Hazar Khan had taken her to the hospital and after getting her medical treatment from the hospital, when he had reached at the place of his abode, which happened to be closely located to the scene of occurrence, he had seen Hari Singh being belaboured by the appellants and others. The prosecution version, as mentioned above, is totally falsified when one is to examine the statement of Dr. A. K. Gupta, PW 1. As per his deposition, Hari Singh was examined by him on March 8, 1993 at 7.35 p.m. On the same very day, he had also medically examined Pushpa wife of Hazar Khan. Even though the doctor has not stated that as to at what time he had examined Pushpa, but it can certainly be made out that she was examined later in point of time, i.e., after Hari Singh had been examined. When examined as PW 1, the doctor stated that he had examined Hari Singh at 7.35 p.m. He then stated that he had also examined on the same day Pushpa. That may, however, not clinch the issue as to whether Pushpa was examined earlier or Hari Singh but if one is to go by the statement of HC Durag Pal, PW 9, it would amply be made out that if Pushpa was not examined earlier than Hari Singh, then in any case she was examined about the same time and was certainly in the hospital in an injured condition when Durag Pal reached the hospital on receipt on an information from the doctor. As mentioned above, Durag Pal, HC stated in his cross-examination that the ruqa was brought to him by a constable at 8 p.m. and he had reached the hospital at about 8.45 p.m. The medical treatment had already been given to Hari Singh by the doctor. In the hospital Pushpa wife of Hazar Khan was with Hazar Khan. Pushpa was not fit to make her statement and was lying on a separate bed. As mentioned above, it is amply proved from the statement of Durag Pal, HC that Hari Singh and Pushpa were admitted in the hospital at the same time. It is also well made out that Hazar Khan, after treating his wife, had not reached the spot at about 8 p.m. as is his case. The Head Constable reached the hospital at 8.45 p.m. and stayed there for about half an hour by which time Hari Singh and Pushpa were still in the hospital. It appears to this Court that there was actually no second occurrence and, in all probability, the occurrence had taken place at 7 p.m. only. It is for this reason that Hari Singh had reached the hospital at 7.35 p.m. in an injured condition. It further appears to this Court that at that time, i.e., at 7 p.m., when the occurrence took place, neither PW 6 Sharbati nor PW 7 Kishan were present at the scene of occurrence. It may be recalled that Sharbati, who appeared as PW 6, clearly stated that she too was injured in the incident. If that was so, there was no question for the investigating agency not to have her medically examined. That in itself would have proved her presence at the place of occurrence. It appears that she has not come up with a truthful version while stating that she was injured. If she was not injured, as we are compelled to think about, we further find no reason for her to have not accompanied her husband to the hospital. It may be recalled that Dr. A. K. Gupta stated that he could not say as to who was accompanying Hari Singh and in the MLR he had mentioned that some of his friends had brought him in the hospital. He, however, did not enquire name of the friend who had brought him in the hospital. Hari Singh was referred to Safdarjang Hospital on the next day and we do not find from records that his wife was accompanying him even when she was shifted to Safdarjang Hospital. The same is position with regard to son of the deceased who appeared as PW 7. He too did not accompany his father either in the BK Hospital, Faridabad or at Safdarjang Hospital, Delhi. PW 6 stated that her son had reached at the scene of occurrence a few minutes before and he had returned from Palwal by the train that leaves by 5 p.m. on the same day. Insofar as PW 7 is concerned, he stated that he had gone to Palwal a day earlier to the date of occurrence and had arrived on the Holi day at about 1-2 p.m. The contradiction of this kind in the statements of PWs. 6 and 7 and their non-accompanying Hari Singh either at Faridabad hospital or at Safdarjang Hospital, Delhi, is indicative of the fact that, in all probability, they were not present at the scene of occurrence. The matter does not rest there, as in the present case, this Court is convinced that there is an unexplained delay in lodging the FIR as well. The FIR came to be lodged on the next day at about 11.30 a.m. It is made out from the deposition made by the witnesses that police station is in very close proximity to the hospital as also from the place of occurrence. It is the case of the prosecution itself that so many persons were present at the place of occurrence. No one chose at all to lodge the FIR at night or even in the early hours of the morning, the next day. If no one had chosen to lodge the FIR on 8th, from amongst those who had gathered at the scene of occurrence, at least wife or son of Hari Singh, could have gone to the police station particularly when they had not accompanied Hari Singh in the hospital. When Head Constable reached the hospital at about 8.45 p.m. on March 8, 1993, Pushpa wife of Hazar Khan and Hazar Khan were present there. Even if Pushpa was not fit to make her statement, Hazar Khan, who ultimately turned out to be the first informant, could have very easily narrated the events leading to death of Hari Singh. However, as is as clear, he narrated the incident to the police on the next day at about 11.30 a.m.

In view of the fact that genesis of the occurrence is shrouded in mystery and it can well be said that the occurrence had not taken place in the way and manner as has been suggested by the prosecution as also that there is an unexplained delay in lodging the FIR, giving sufficient time to the prosecution to deliberate and ponder over the issue leading to an irresistible conclusion that a story was coined to suit the prosecution, as also in view of the fact that the presence of only two eye-witnesses, who have been examined, at the scene of occurrence, is doubtful, we return a verdict of acquittal. Consequently, order of conviction and sentence recorded by the learned Additional Sessions Judge, Faridabad is set aside. Appellants be set at liberty forthwith, if not required in any other case.

Appeal allowed.