Raghbir and ors vs State of Haryana

A.S. Bains, J.

Raghbir Singh. Jeet. Randhir Singh and Ranbir Singh sons of Ram Sarup. their father Rani Sarup and Banta son of Joti appellants alongwith their coaccused Jhandu Ram. his sons Maya Ram and Phool Singh. Singhs Ram son of Joti Ram. Bichha Ram son of Singh Ram and Nasib Singh son of Kanhiya were prosecuted and tried for the offences under sections 308, 308/149, 325/149, 325/149, and 149 of the Indian Penal Code in the Court of Shri M. S. Nagra. Additional Sessions Judge, Ambala, who vide his judgment dated 11th May, 1983, acquitted the coaccused Jhandu Ram, Maya Ran), Phool Singh, Singh Ram, Bichha Ram and Nasib Singh by giving them the benefit of doubt but convicted the appellants and sentenced Raghbir Singh, Banta, Jeet Singh and Ram Sarup appellants as under :

U/s 148, I.P.C. R.I. for six months each.

U/s 323/149, I.P.C. R.I. for six months each.

U/s 325/149, I.P.C. R.I. for two & a half years and a fine of Rs. 500/ each or in default, further R.I. forsix months each.

Fine. if realised, was ordered to be paid to Dash Raj PW. However Randhir Singh and Ranbir Singh appellants were given benefit of probation and were directed to be released on their entering into bond in the sum of Rs. 5,000/ with one surety each in the like amount for a period of three years to keep the peace and be of good behaviour. The appellants have challenged their conviction and sentence as also the order of probation by way of this appeal.

The prosecution case as set tip at the trial was that on 25th August 1980, at about 9.00 P.M. Mehar Singh (P.W.7) was returning to his house and passing through the Kutcha site at village Milak Jabbalian (which is claimed to be a public street by the complainant party and a courtyard by the accused party) Ram Sarup appellant objected to the same and on Mehar Singh telling that it was a common passage being used by the public at large, Ram Sarup appellant gave him abuses and took him in his grip. He then gave a call to his near and dear ones and in response to his call, his coappellant and the coaccused (since acquitted) reached the spot. Jeet and Raghbir appellants were armed with ''Ballams'' and the remaining accused with lathies. They opened the attack and on alarm being raised by Mehar Singh PW, his son Raj Mohan (P W. 11) his brother Des Raj (P.W. 8), Sumer Singh (P.W. 10) and his uncle Mansa Ram (P W 9) came to his rescue. It is alleged that the appellants and the coaccused also caused injuries to them. The occurrence was witnessed by Bachna, Gian Chand and Jarnail Singh PWs. who separated the parties. The appellants and the coaccused left the place of occurrence after inflicting the injuries.

The case was registered in Police Station Sadbaura on the statement of Mehar Singh ( P.W. 7) recorded by A. S. 1. Sewa Dass on the same night at 11. 55 p.m.

Mehar Singh, Mansa Ram and Sumer Singh P. Ws. were medicolegally examined by Dr. K. L Garg (P. W 1) in the Primary Health Centre, Sadhaura on 26th August, 1980 The doctor found 5, 3 and 1 injuries on their persons respectively. Des Raj and Raj Mohan PWs were medically examined by Dr. T. K. Gocha (P.W. 2) on 26th August, 1980 and the doctor found one injury on the person of Des Raj PW and three injuries on the person of Raj Mohan PW. After xray examination Dr. Ravinder Mathur (PW 4) declared grievous injury each on the person of Mehar Singh and Raj Mohan PWs Dr. N. K. Bansal (P. W, 5) vide his report Ex. PW/1 opined on 14th October, 1980, on police request Ex PM, that the injury on the person of Des Raj P. W could have been dangerous to life in the ordinary course of nature.

Ram Sarup appellant was medically examined by Dr. K. L Garg (P.W. 1) on 26th August, 1980 at 1. 10 p.m. He found three injuries on his person which were caused by blunt weapon Injury No. 1 was on the head and the doctor advised xray of this injury.

Banta, Raghbir Singh, Randhir Singh and Ranbir appellants were medically examined by Dr. T. K. Gocha (P.W. 2) on 26th August, 1980 and the doctor found 3, 3, 2 and 1 injuries respectively on their persons. All these injuries were the result of blunt weapon. Out of these, injure No. 1 on the person or Raghbir appellant and Randhir appellant and the sole injury on the person of Randhir appellant was on the head and the Xray was advised.

At the trial. the. appellants denied the prosecution allegations Ram Sarup appellant gave his own version, which reads as under :

"The true facts are that there is an open space in front of my residential house which is used as courtyard. The doors or my house open in that. There are cattle mangers and two trees of Bur and Pippal. This space is situated between two streets passing from North to South through the village Abadi. The level of this site is also higher than the two streets. The PW Mehar Singh etc, have been trying to occupy this site forcibly and they wanted. to pass through it as a short but for going to their house. The PWs. who were 15 in number including all the injured and other PWs were also arrested and challaned in the cross case for inflicting injuries on me, Banta, Raghbir. Randhir and Ranbir accused. The statements of all of us injured accused were also recorded u/s 161. Cr.P.C. by Sewa Dass and copies of the same have also been supplied to us. While supplying us the copies of the challan, it is learnt only during the course of evidence in this case that the opposite party i.e. PWs. have been stated to be discharged in the cross case, although there is no order or date available to us or to the prosecution as to when they were discharged. It appears they were not discharged and therefore. the accused have been taken by surprise at the stage and for that reason this cross case was not filed. The police has been assuring us that the, PWs shall also be challaned.

On the alleged date of occurrence, Mehar Singh, Mansa, Sumer, Raj Mohan, and all other PWs attacked me in my courtyard. On bearing the alarm. Banta. Raghbir, Randhir and. Ranbir came to rescue me andinflicted injuries to the injured PWs except Des Raj in selfdefence. It was dark and the PWs numbering 15 started hurling lathi blows on us and during the course Des Raj PW was in all probability hit by the blows of the. PWs in the mellee. The challan against the accused was projected in one sided manner as the opposite party, i.e. PWs being influential approached the D.S. P. Naraingarh, while the cross case against PWs has been hushed up. in an illegal and partisan manner. The DSP Naraingarh had reported against ASI Sewa Dass that he had conducted the investigation of this case in a highly partisan manner. The case against us is false and PWs have deposed falsely who are all interested in each other because they were accused in the crosscase. It is also prayed that the spot in question may kindly be inspected and a cursory glance of the spot will make the whole matter clear. I also tender a scale site plan of the site in dispute as mark DK. ASI Sewa Dass, who conducted the investigation in a partisan manner, has stated in the marginal notes of rough site plan prepared by him that both the parties had a pitched fight. He has deliberately omitted to get the scaled site, plan prepared. No accused except injured was present at the spot."

In defence. D. W. 1 Didar Singh. an Architect, who had prepared the scaled site plan of the place of occurrence at the instance of the accused, and DAV, 2 Kehar Singh, member panchayat of village Milak Jhabalian wore examined

It is a case of rival versions. The prosecution case rests on the testimony of Mehar Singh (P W.7), Des Raj (P.W.8). Mansa Ram (P.W. 9). Sumer Singh (P.W. 20), Rajohan (P.W. 11), Gian Chand (P W. 12) and Bachna Ram (P.W.13). They have supported the prosecution version as given in the earlier part of the judgment Five of the aforesaid prosecution witnesses are injured, but Gian Chand and Bachna Ram PWs did not receive any injury. According to the defence version, the place of occurrence is the court yard of the house of Ram Sarup appellant and it is in their possession The doors of the house also open in that courtyard, they tether their milch cattle and other animals. Cattle mangers and two trees of Bur and Pipal are also there. According to the complainant party''s version, the place of occurrence is an open kutcha street.

Thus, the crucial point for determination in this case is whether the place of occurrence is a courtyard of the house of Ram Sarup appellant or it is a public street. There is no material on the record to show that the place of occurrence is a public street No member of the GramPanchayat of the village has been produced by the prosecution nor there is any documentary evidence to prove that the place of occurrence was public street Except the bald oral statements of the prosecution witnesses, there is no material on the record to show that the place of occurrence was a public street. The observation of the learned Additional Sessions Judge that, whether the site is a public street or not has no bearing on the point involved, is altogether erroneous. The learned Additional Sessions Judge should have first determined whether the place where the occurrence took place was a public street or a courtyard, as both the complainant as well as the accused parties bed taken the different stand According to the complainant party, they had the right to pass through that way as it was a public street and according to the accused party the complainant party bid no right to Pass through the site, which was a courtyard of their house. The trial Court should also have inspected the spot as the accused party bad applied for the sarne. but it had not done so. The main investigating officer A. S I. Sewa Dass has not been examined It may also be highlighted that the accused party had t)so suffered 12 injuriesthree by Ram Sarup appellant, three by Raghbir appellant, two by Randhir appellant, one by Ranbir appellant and three by Banta appellant. The complainant party had suffered 12 injuries in all. Although all the injuries suffered by the accused party are simple, but some of them are also, on the vital parts. In the first information report the injuries on the accused party are not explained, although attempt has been made at the trial to explain that Sumer Singh PW had caused them injuries. it was not possible for Sumer Singh PW alone to cause 12 injuries on the. accused party It is also in the statement of S.I. Mansa Ram (P.W. 16) that 15 persons of the complainant party had also been arrested but they wore not challaned. Bachna Rom and Gian Chand PWs, who seem to be independent witnesses, did not observe any injury on the complainant party except on the person of Des Raj PW Their statements were not recorded by the police Main reliance is placed on their testimony by the trial Court but according to them, their statements under section 161, Criminal Procedure Code, were never recorded by the police.

The prosecution witnesses have made improvements at the trial. In the first information report and in their statements before the police, their stand was that it was not known as to who Save injuries to whom, but at the trial they gave details of the injuries caused to the injured PWs by the accused party. The statement of Des Raj (P.W. 8) was recorded for the first time on 17th September, 1980. i. e. after a lapse of about 22/23 days. In the first information report Mehar Singh (P.W. 7) has categorically stated that Des Raj PW had suffered minor injuries and, therefore, i.e. was brought for medical. examination. But at the trial. he stated that he was not brought as it was thought that he had died There is lot of difference between the suffering of minor injuries and the death. Mehar Singh PW has admitted in crossexamination that proceedings under section 133, Cr.P.C. instituted at their instance before the S. D. M. (Civil), Naraingarh about. the site (now claimed by them as public street) had been decided against them and the appeal against the same was pending. However, it is stated at the Bar that the revision against the same was also dismissed. He also admitted the existence of a Bur and Pipal tree over the said street and that the doors of the houses of Ram Sarup appellant and other coaccused also open in the said courtyard. Bachna Rani (P.W. 13) in his crossexamination has admitted the existence of cattle mangers on the site in dispute between the parties, where the occurrence had taken place. Kehar Singh (D.W. 2) member panchayat, has categorically stated that the site where the incident took place belongs to Ram Sarup appellant and that Ram Sarup appellant his been using the said place for the purpose of tethering his cattle. He also stated that there is a boundary wall on one side of the site and houses of Ram Sarup appellant are situate on hotly sides of that site and that the streets of the village are situate towards north and west of the site. He also deposed that the police had visited the spot and A. S. I. Sewa Dass had recorded his statement. The aforesaid evidence of Kehar Singh DW goes a long way to show that the site in dispute. where the occurrence is alleged to have taken place. was in possession of Ram Sarup appellant. Kehar Singh DW is neither related to the appellants nor there is anything on the record to show that he is inimical towards the complainant patty. Thus, there is no escape from the conclusion that the site in dispute is the courtyard of the. house of Ram Sarup appellant and not a public street.

For the reasons recorded I am of the view that it is not safe to maintain the conviction of the appellants. The appellants had the right to stop the complainant party to pass from the site in dispute and on their insistence to do so, the appellants could cause injuries to them. The genesis of the occurrence is also suppressed by the complainant party as the injuries on the persons of the appellants are not explained. Accordingly the appellants are given the benefit of doubt and acquitted.

In the result, the appeal is allowed and the conviction and sentence as recorded by the trial Court in the case of Raghbir Singh, Banta, Jit and Ram Sarup appellants are set aside. They are on bail. Their bail bonds shall stand discharged. Fine, if recorded shall be refunded to them

Before parting with the Judgment I am constrained to remark that the investigation in this case was also not fair. A.S.I. Sewa Dass who initially investigated the case was not produced. The approach of the learned Additional Sessions Judge in appreciating the evidence of the parties in determining the guilt of the appellants was also erroneous. His observation that whether the site in dispute is a public street or not has no bearing on the case, is not warranted by the evidence on the record. It was rather a basic question to be determined by the Court to arrive at a correct decision,