Phul Singh vs Rajpal

Ashutosh Mohunta, J.—The Additional Sessions Judge, Jind, vide judgment dated 7.2.2014 and order dated 11.2.2014 convicted accused/respondents No. 3, 4 and 6 namely Dalvinder, Karam Pal and Satyawan for the offence under Sections 307, 325, 323 IPC read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5,000/- each. In default of payment of fine, to further undergo R.I. for six months each. However, accused/respondents No. 1, 2, 5 and 7 namely Rajpal, Kukki, Azad and Karan Singh have been acquitted of all the charges levelled against them. The present appeal is against acquittal of the said respondents and also against nonpayment of compensation to the appellant.

The brief facts of the case are that on 6.11.2011 at about 6:00 A.M. the complainant Phool Singh was going for morning walk and when he reached near the house of Rajpal (accused), he found that Rajpal and his brother Kukki were sitting in front of their house and on seeing him, they shouted Phool Singh had come, whereupon Dalvinder @ Dinda, Maru @ Karam Pal armed with Gandasi, Satyawan Azad Singh and Karan Singh armed with Bindas of spade came out from the Ghair (courtyard) of Kukki. Dalvinder inflicted gandasi blow on his left side of head, Karam Pal @ Maru inflicted gandasi blow on the right side of his head. He fell down whereupon Satyawan, Azad and Karan Singh gave binda blows on his left arm, back and right knee respectively. On raising an alarm, his son Kuldeep came to the spot and on seeing his son all the assailants fled away from the spot with their respective weapons. Kuldeep arranged a vehicle and took the complainant to General Hospital Jind from where he was referred to PGIMS Rohtak. He became unconsciousness on the way and regained consciousness on the next day and doctor of PGIMS Rohtak discharged him but on his way back to Jind he again felt severe pain and was again admitted in Maharaja Aggarsain Hospital, Jind. On the basis of the above statement (Ex. PM) of the complainant, formal FIR No. 289 dated 7.11.2011 under Sections 148, 307, 323, 325, 149 IPC was registered at Police Station Sadar, Jind. (Ex. PQ).

After completion of investigation, report u/s 173 Cr.P.C. was filed by the investigating agency against accused Rajpal, Kukki, Dalvinder, Karam Pal and Azad in the competent court. Thereafter, on an application made by the prosecution u/s 319 Cr.P.C. Satyawan and Karan Singh were summoned as additional accused vide order dated 25.9.2012.

After hearing both the parties, the Additional Sessions Judge, Jind, charge-sheeted all the accused for offence under Sections 148, 307, 323, 325 read with Section 149 vide order dated 25.10.2012.

In order to prove its case, the prosecution examined thirteen witnesses namely Dr. Anuj Sharma, Dr. Kanwar Singh Goel, Phool Singh (complainant), HC Deepak Kumar, Kuldeep Gupta Draftsman, Pala Ram Record Keeper, Dr. Chetan, Dr. Ajay Goel, Inspector Suresh Pal, SI Pawan Kumar, Dr. Harshita, HC Sultan Singh and Kuldeep Singh as PW1 to PW13 respectively.

PW1 Dr. Anuj Sharma, medico-legally examined Phool Singh on 6.11.2011 in General Hospital Jind and gave details of injuries in his affidavit Ex. PA as under:-

Lacerated wounds of sizes 9x0.3 cm x MD and 6x0.2 cms x MD present over left parietal region. Active bleeding present. Advised X-ray skull ap/lat./CT scan head and surgeons opinion.

Lacerated wound of size 9x0.9 cms x MD present over right parietal region. Adv. X-ray skull ap/lat. CT Scan head and surgeons opinion.

Swelling and deformity over left forearm in upper 1/3rd. Adv. X-ray left forearm ap/lat and ortho opinion.

On police application Ex. PD, the Doctor gave his opinion Ex. PE that injury Nos. 1 and 2 were dangerous to life and injury No. 3 was grievous in view of the X-ray report and CT scan report of PGIMS Rohtak. He also stated that on 30.1.2012 three parcels of weapons were produced before him with application Ex. PF and after opening the parcels, he gave his opinion Ex. PG that injuries No. 1 to 3 could be caused by those weapons.

PW2 Dr. Kanwar Singh Goel of Maharaja Aggarsain Hospital, Jind deposed that on 7.11.2011 Phool Singh was admitted in his hospital. It was a case of multiple injuries on 6.11.2011 and Dr. Vipul Aggarwal of his hospital declared the injured fit to make statement vide opinion Ex. PJ/1. The patient was discharged on 19.11.2011.

PW3 Phool Singh (complainant) testified as per his initial version detailed by him in his earlier statement Ex. PM. He also stated that he remained admitted in hospital till 19.11.2011.

PW4 HC Deepak Kumar, Investigating Officer, deposed that on 6.11.2011 on receipt of rukka Ex. PC from Civil Hospital, Jind, he went to PGIMS Rohtak with HC Narender where Phool Singh was declared unfit to make statement. On 7.11.2011, he recorded the statement of Phool Singh in Maharaja Aggarsain Hospital, Jind whereupon formal FIR Ex. PQ was recorded. He visited the spot of occurrence and also the Maharaja Aggarsain Hospital, Jind where clothes of the injured were taken into possession vide memo Ex. PR. He also deposed that on 7.12.2011 accused Dalvinder, Azad and Karam Pal surrendered before the court and on interrogation suffered disclosure statements Ex. PS, Ex. PT and Ex. PU. On their disclosure statements, gandasis and Binda of spade got recovered and taken into possession. He also deposed that accused Kuki and Rajpal were also arrested and joined investigation and on interrogation suffered disclosure statements Ex. PX and Ex. PY.

PW7 Dr. Chetan deposed that on 6.11.2011 he was Senior resident in PGIMS Rohtak and Phool Singh referred there by doctor of General Hospital, Jind and he was admitted on 6.11.2011 at 8:15 a.m. and was discharged on 7.11.2011. He stated that it was a case of multiple injuries with the history of assault.

PW8 Dr. Ajay Goel of Goel Orthopedic Centre, Jind deposed that on 7.11.2011, he had X-rayed Phool Singh and diagnosed fracture of 3rd metatarsal, right foot. X-ray film was produced as Ex. PBB and report as Ex. PCC.

PW10 ASI Pawan Kumar deposed that he had recorded formal FIR Ex. PQ on 7.11.2011. He also stated that he went to the hospital for collecting the documents and prepared site-plan. He also deposed about obtaining of parcels, arresting of all the accused and recovery of gandasi and Binda.

PW11 Dr. Harshita stated that on 5.12.2012, she had radio logically examined Phool Singh and found fracture in his left ulna.

PW13 Kuldeep, son of the complainant-Phool Singh, deposed the same facts as reiterated by Phool Singh (PW3) in his statement.

PW5 Kuldeep Gupta draftsman, PW6 Pala Ram Record Keeper of PGIMS, Rohtak, PW9 Inspector Suresh Pal and PW12 HC Sultan Singh were formal witnesses. Thereafter, the prosecution closed its evidence.

On examination u/s 313 Cr.P.C. the accused pleaded not guilty and claimed trial. Since there was incriminating evidence against the accused so they were called to enter upon their defence evidence. They examined Parkash as DW1 and DSP Rameshwar Lamba as DW2.

DW1 Parkash testified that on 6.11.2011 he had gone to the fields of Karan Singh accused to sow wheat at 5:30 a.m. with his tractor and Karan Singh remained present in his fields till 11:00 a.m. DW2 DSP Rameshwar Lamba deposed that investigation of this case was verified by him and the accused Karan Singh and Satyawan were found innocent and were not challaned by the police.

Counsel for the complainant argued that the prosecution has proved its case beyond shadow of reasonable doubt against all the accused. He argued that deposition of injured PW3 Phool Singh and eye witness Kuldeep PW13 are cogent, convincing and trustworthy. They have no reason to falsely involve the accused. He further argued that medical evidence corroborates oral version. Injury Nos. 1 and 2 on the head of Phool Singh were declared dangerous to life. He explained that the delay in FIR occurred as injured was earlier unfit to make the statement. He further argued that it was planned attack by all the accused and prayed that all the accused be convicted.

On the other hand, the learned defence counsel argued that the prosecution has miserably failed to prove its case. He argued that injured Phool Singh was assaulted by unknown persons but on account of party faction they have been falsely implicated. He further argued that FIR was lodged after inordinate and unexplained delay of thirty six hours. Kuldeep, son of the injured, did not approach the police. There are only three injuries on the person of Phool Singh while seven persons have been implicated in this case. There is no injury on the right knee or on the right foot or on the back. Two of the accused were allegedly armed with gandasi but there is no sharp edged injury on the person of Phool Singh. Hence, the oral version is contradicted by medical evidence. On these grounds, he prayed for acquittal of the accused.

After hearing the counsel for the parties and going through the evidence, the Additional Sessions Judge, Jind, vide judgment dated 7.2.2014 and order dated 11.2.2014 convicted the accused/respondents No. 3, 4 and 6 namely Dalvinder, Karam Pal and Satyawan for the offence under Sections 307, 325, 323 IPC read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5,000/- each. In default of payment of fine, to further undergo R.I. for six months each. However, accused/respondents No. 1, 2, 5 and 7 namely Rajpal, Kukki, Azad and Karan Singh have been acquitted on the ground that actual participation of these accused could not be proved by the prosecution beyond shadow of reasonable doubt. Against the said judgment of acquittal of accused Rajpal, Kukki, Azad and Karan Singh, the present appeal has been filed.

Counsel for the appellant contends that as per the statement of the complainant, accused Nos. 1 and 2 namely Rajpal and Kukki were guilty of calling the other accused on seeing him who in turn was assaulted by the other accused with deadly weapons and thus they were active members of the unlawful assembly and accused No. 5 and 7 gave him Binda blows on the right side of his back and right knee respectively. It is stated that the trial Court has erred in acquitting the aforesaid accused persons despite specific allegations against them.

Heard counsel for the appellant and perused the file.

A perusal of the file shows that Dr. Anuj Sharma (PW1) who medico-legally examined the complainant on 6.11.2011 gave details of only three injuries which were on the left and right parietal region of skull as well as on the left forearm of the injured-Phool Singh. It has been proved in evidence that the said injuries are alleged to have been caused by Dalvinder, Karam Pal and Satyawan respectively. The trial court found that the accused involved in the crime were less than five in number and hence, the offence of rioting by unlawful assembly is not made out against them.

A perusal of the statement of Phool Singh, injured, shows that Rajpal and his brother Kukki were attributed a Lalkara only and were not armed with any weapon. The role attributed to them is that they exhorted the other accused to cause injuries to Phool Singh. In case the accused Rajpal and Kukki wanted to cause injuries to Phool Singh than they themselves would have also participated in attacking the injured. Thus, the actual participation of accused Rajpal and Kukki is highly doubtful and it seems to be a case of over implication.

As far as accused/respondent No. 5-Azad is concerned, he is alleged to have given a binda blow on the back of the injured. However, a perusal of the statement of PW1 Dr. Anuj Sharma shows no injury on the back of the injured. The accused Karan Singh is alleged to have given a binda blow on the right knee of the injured. The statement of PW1-Dr. Anuj Sharma, shows no injury on the right knee of the complainant-Phool Singh.

From a perusal of the aforementioned discussion, it is clear that the prosecution could not prove the involvement of accused Rajpal, Kukki, Azad and Karan Singh and thus the trial Court has rightly acquitted these accused. The other three accused namely Dalvinder, Karam Pal and Satyawan have been attributed specific roles and their involvement in the crime has been proved by the injuries caused by them as well as by the medical evidence. Hence, these accused have been convicted by the trial Court.

In view of the above, we find no merit in this appeal against acquittal of respondents No. Rajpal, Kukki, Azad and Karan Singh as their participation in the crime is doubtful.

Resultantly, this appeal is dismissed.

As the respondents have been acquitted of all the charges against them, therefore, there is no question of awarding compensation to the appellant by the present respondents.