Raja Ram vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Raja Ram and Sukh Ram appellants directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Faridabad dated 20.10.1986. By virtue of the impugned judgment, the learned trial Court held Raja Ram guilty of the offence punishable under Section 307 I.P.C. while Sukh Ram was held guilty of the offence punishable under Section 325 I.P.C. Raja Ram was directed to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. 1000/. In default of payment of fine, he was to undergo further rigorous imprisonment for 3 months. Out of the fine, if realised Rs. 800/ were directed to be paid to Jagmal. So far as Sukh Ram is concerned, he was ordered to be released on probation on his furnishing a bond to a sum of Rs. 2,000/ with a surety of like amount and to keep peace and be of good behaviour for a period of one year. He was directed to appear and receive sentence if and when called upon during that period.

The relevant facts of the prosecution case are that on 30.4.1986 at about 7.00 P.M. Jagmal brother of Ratti Ram had gone to the village tap. It is near his house. He was filling the bucket with water. In the meantime, appellant Sukh Ram arrived there. He also wanted water for his buffaloes. He threw away the bucket of Jagmal from under the water tap saying that he shall firstly take water for his buffaloes. This led to the exchange of abuses.

Sukh Ram thereupon gave a lathi blow on the head of Jagmal. He called his brother Raja Ram. In the meantime Satbir and their father Mohar Singh also arrived there. Raja Ram was armed with a ballam while the others had lathies with them. Raja Ram gave a ballam blow at the abdomen of Jagmal. Satbir gave a lathi blow an his head. Mohar Singh gave a lathi blow on the right arm. In the meantime Dharamwati wife of Sukh Ram also arrived there. She was having a brickbat in her hand. She gave a brickbat blow on the right eye of Jagmal.

Jagmal raised an alarm. At this his brother''s son Rajinder, his sister Dhapo and Ved Pal arrived there. They tried to save Jagmal. Raja Ram and Satbir ran after them. Ratti Ram and his son Rajinder ran for safety. Satbir gave one lathi blow to the complainant when he was trying to run away. It fell on the hand of complainant and Ratti Ram.

The injured was removed to the hospital at village Tigaon and thereafter brought to the hospital at Faridabad. He was referred to All India Institute of Medical Sciences, New Delhi.

ASI Naveen Kumar was posted at Police Post Tigaon. On receipt of ruqa from Civil Hospital, he went to B.K. Hospital, Faridabad and thereafter he went to All India Institute of Medical Sciences, New Delhi. ASI Naveen Kumar ascertained whether the injured was fit to make the statement. The opinion of the doctor was that he was not fit to make the statement. Even when the injured was removed to the All India Institute of Medical Sciences, he was not declared fit to make the statement. Thereupon ASI Naveen Kumar recorded the statement of Ratti Ram. He had signed his statement, on basis of which formal first information report was recorded by SI Ram Kishan.

ASI Naveen Kumar visited the spot and prepared the rough site plan. He lifted the bloodstained earth. It was converted into a small packet and sealted. It was seized vide a recovery memo.

The appellants were arrested on 4.5.1986. Raja Ram was interrogated. He made a disclosure statement (Ex.PK) that he has kept concealed one ballam in his kotha and he could get it recovered. The disclosure statement was recorded. In pursuance of this disclosure statement, he led the police party and the witnesses and got recovered the ballam. The ballam is stated to be bloodstained.

Injured Jagmal was examined by Dr. Shaji Thomas at All India Institute of Medical Sciences at New Delhi. He had found that he was hit on the head and had received penetrating injury at the abdomen with the intestine prolapsing. In the opinion of Dr. Thomas injury on the abdomen could be dangerous towards his life. It is on these broad facts that report under Section 173, Cr.P.C. was filed.

The prosecution in support of its case has examined 10 witnesses which included the alleged eye witnesses. After the prosecution evidence, the statements of the accused were recorded. Appellant Sukh Rain denied the incident and his precise defence was in answer to question No. 8 which reads :

"It is a false case. In fact I had taken my buffalo to the water tap and was providing water to the buffalo with my bucket when Rajinder reached there and threw away my bucket. When I protested he abused me and quarrelled with me. In the meanwhile Jagmal uncle of Rajinder turned up with lathi and gave lathi blow at my head. On my alarm my brother Raja Ram arrived there and Jagmal gave a lathi blow behind his head, Rati Ram then arrived with Ballam in his hand and he aimed ballam blow at Raja Ram who drew aside and the blow fell to Jagmal. Some persons from the roof of surrounding houses threw brick, bats and from the house of Rati Rain were also thrown. I and Raja Ram returned to our houses from the other side, and informed the police at Tigaon and we were got medically examined i.e. we were given medical aid. The other accused were called in police station by the next day."

Similar was the statement of appellant Raja Ram. Both of them pleaded innocence.

In defence the appellants examined four witnesses. Khiman DW1 stated that he was coming from Tigaon. There is a water tap near the Baithak of Ratti Ram. There was an altercation between Sukh Ram and Jagmal. Jagmal had given a lathi blow to Sukh Ram and another Lathi blow to Raja Rain. Dharam Singh DW2 also made a similar statement. Dr. M.G. Sharma DW3 had examined Raja Ram on 23.4.1986. On the person of Raja Ram, he found the following injuries :

11/2 cm x 1 cm x 1 cm lacerated wound on the right occipital region in its upper part of scalp. Fresh blood is present. Advised xray PA view scalp.

2 cm x 1 cm abrasion on the medial side of left wrist joint. Movements of left wrist joint are normal.

2 cm x 11/2 cm abrasion on the back of right elbow. joint. Movements of right elbow joint are normal.

25 cm long diffused swelling over the right knee joint, starting from lower third of the right thigh extending upto upper third of the right leg. Localised tenderness was present. Advised xray at General Hospital Ballabgarh.

5 x 4 cm reddish contusion on the front of right ankle joint. Localised tenderness was present. Advised for xray of the right ankle joint.

Diffused swelling 4 cm x 2 cm on the dorsal and medial side of left hand. Movements of left hand were normal.

He also had examined Sukhbir and found the following injuries on his person :

21/2 cm x 1 cm x 11/4 cm lacerated wound was present in anterior part of left parietal region slightly "exttending upto left frontal region of scalp, 1 cm lateral to middle line. Fresh blood was present. Xray was advised.

1 x 1/4 cm long abrasion on the dorsal side of left forearm in its middle. Movements of left forearm were normal.

5 cm x 3 cm reddish swelling was present on the front of right leg in its middle third."

In the opinion of Dr. M.G. Sharma all injuries on the person of Raja Ram could be due to fall. They could be selfinflicted. Lastly Om Prakash DW4 had brought the Daily Diary Register of Police Station Tigaon and stated that at serial No. 23 it had been written that there was some fighting in village Lehandola.

Learned trial court on appraisal of the evidence on the record held that it has been established that it were the appellants who caused the injuries on the person of the injured. The defence version was rejected. The trial court held that there was no evidence to establish that injuries were caused in furtherance of their common intention. Raja Ram was held guilty of the offence punishable under Section 307 IPC and Sukh Ram under Section 325 IPC. The order of sentence already referred to above followed. Hence, the present appeal.

As is apparent from the resume of the facts given above, the prosecution case revolves around the testimonies of two alleged eye witnesses namely Ratti Ram PW8 and Jagmal PW9. Jagmal is the injured.

Ratti Ram PW8 deposed that Jagmal had gone to the village water tap to fetch water for his buffalo. At that time Sukh Ram appellant with his wife Dharamwati also came there with their buffaloes. Sukh Ram threw away the bucket of Jagmal and abused him. He insisted that he will take water before Jagmal. Sukh Ram even called his father and brothers. Raja Ram, Satbir and Mohar Singh also reached there. Raja Ram was armed with a ballam while others had lathies. Sukh Ram had given a lathi blow to Jagmal even before he had called his father and brothers. It had hit Jagmal on his head. Raja Ram gave the ballam blow on the belly of Jagmal. Satbir gave a lathi blow to Jagmal. Mohar Singh gave a lathi blow while Dharamwati gave a brickbat blow hitting Jagmal on his forehead. The witness added that even he was given a lathi blow by Satbir. During crossexamination according to him before his arrival, all the accused had arrived there. When Sukh Ram called his brothers and father, he was present at his Chabutra. Some other persons of the village had also turned up. House of Harchandi is near the water tap but nobody lives there. The witness continued to answer the questions and testified that their house is situated near the Nuhara of Harchandi. He denied the defence version that Raja Ram had taken his buffalo at the watertap or was providing water to the buffalo. He further denied that the son of the witness arrived there and threw away the bucket of Raja Ram which resulted in a quarrel. He denied that he had himself taken the ballam and ran to the spot or that he aimed the ballam blow at Raja Ram but it had hit Jagmal per chance.

Jagmal injured PW9 supported the prosecution case and deposed :

"Some four months 4 days back, at about 7 P.M. I had taken my bucket to the water tap of the village for fetching water. In the meantime Sukh Ram turned up with his buffalo and bucket. Dharamwati was also with him. My bucket was under the tap, but Sukh Ram threw it away, saying that he had to take the water first. He also gave a lathi blow at my head. He also called his father and brothers and so Raja Ram, Satbir and Mohar Singh all arrived there. Raja Ram was armed with a ballam, while the others were having lathis in their hand. Satbir gave a lathi blow at my head and Mohar Singh gave lathi blow at my right hand. Raja Ram gave a ballam blow at my belly. I fell down and became unconscious."

During crossexamination the witness stated that when Sukh Ram turned to the water tap, some other persons were also present. He could not give their names. He did not know if Sukh Ram and Raja Ram sustained injuries. He denied that Sukh Ram was providing water to his buffalo on the water tap in his bucket and at that time Rajinder son of Ratti Ram reached there and he threw away the bucket of Raja Ram.

Taking advantage of the said evidence, learned counsel for the appellant argued that some of the witnesses who have been named, have not been examined by the prosecution. He also urged that there were some other witnesses who during the course of arguments, were shown to witness the incident and even they have not been examined. Thus, it was urged that prosecution case must fail for nonexamination of material witnesses. In this regard it goes without saying that prosecution should produce all the material witnesses. But it is not the number that matters. For proving a particular fact, there is no minimum number of witnesses prescribed. It is well known that in such like troubles, some neighbours do not like to involve themselves. The Court is not surprised, therefore, that those persons were not examined as witnesses. As regards the other named witnesses who have not been examined, I find no reason to draw adverse inferences against the prosecution because when two material witnesses have been examined, then it was unnecessary to examine Rajinder and Dhapo. On appraisal of the facts and circumstances, therefore, the contention so raised is without any merit.

Confronted with that position, it had been urged that there had been an inordinate delay in getting the first information report recorded.

Indeed prompt recording of the first information report is of utmost importance. There is also no controversy that there is some delay in the present case in recording of the first information report. However, if there is some delay, necessarily it will not throw the prosecution case overboard. It has transpired in the evidence that in the first instance, injured jagmal was declared unfit to make the statement. Necessarily his close relatives who were present would be busy in looking after the injured. The ballam blow had been given in his abdomen. His life was more precious than recording of the first information report. He had firstly to be removed from the village to Civil Hospital, Tigaon and then to a hospital at Faridabad. From Faridabad he was removed to All India Institute of Medical Sciences and Research. One is, therefore, not surprised that the first information report was not recorded immediately. The delay herein thus cannot prove fatal.

Jagmal is the injured himself and ordinarily he would not implicate an innocent person. He is supported in his version by his brother Ratti Ram PW 8. They are natural witnesses and unless there are other cogent reasons, the testimonies cannot be rejected. The defence version that it was the injured and Ratti Ram who caused injuries to the appellants or that Ratti Ram incidently while trying to hurt the appellants had hit the ballam on the person of Jagmal, is of no consequence. It appears to be false and unreliable. This version saw the light of the day only during the course of trial and appears to be an afterthought.

In that event reliance was being placed on the fact that there were injuries on the person of the accusedappellants which have not been explained and, therefore, the prosecution case must be held to be not inspiring any confidence. The simple injuries on the person of the appellants have already been noted above. The Supreme Court in the case Ramlagan Singh and others v. State of Bihar, AIR 1972 SC 2593 had considered a similar argument and felt that in order to avoid cross cases, injuries on the person of the accused were not mentioned. It was held :

"Mr. Chari has referred to the fact that injuries were found on the persons of the two of the accused, namely, Ram Nandan Singh and Suresh Singh. It is stated that these injuries have not been satisfactorily explained by the prosecution witnesses. No question, however, appears to have been put to any of the prosecution witnesses regarding the injuries caused to Ram Nandan Singh and Suresh Singh accused. As such, there arose no occasion for the prosecution witnesses to explain the injuries on the persons of the two of the accused. Apart from that, we find that a cross case was started against the prosecution witnesses in this case regarding the injuries to Ram Nandan Singh and Suresh Singh accused."

Similarly, in the case Bhagwan Tana Patil v. The State of Maharashtra, AIR 1974 SC 21 the Supreme Court again considered the same question and concluded that there is no hard and fast rule that if injuries on the person of the accused are not explained, the prosecution case must fail. The Court observed

"It is, therefore, not correct to say that the courts below had themselves invented an explanation for the injuries of the appellant, which the witnesses had not given. True that the explanation given was not found impeccable, but there is no hard and fast rule that simply because the prosecution witnesses did not explain the injuries on the person of the accused, their entire evidence should be discarded."

Greater in detail was the proposition discussed in the case Lakshmi Singh and others etc. v. State of Bihar, AIR 1976 SC 2263. It was held that in a murder case if injuries on the accused are not explained, certain inferences can be drawn. The Court held :

"It seems to us that in a murder case, the nonexplanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has not presented the true version,

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."

Thereafter it was concluded further that if injuries are superficial, they need not be explained. It has held :

"We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on March 19,1975 Reported in AIR 1975 SC 1478 there may be cases where the nonexplanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent."

Lastly, reference can be made to the said decision in the case Jagdish v. State of Rajasthan, AIR 1979 SC 1010. Similar question was considered and it was held :

"it is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied :

(1) that the injuries on the person of the accused must be very serious and severe and not superficial;

(2) that it must be shown that these injuries must have been caused at the time of the occurrence in question."

On appraisal of these precedents, it can safely be held that though injuries on the person of the accused should be explained but if they are superficial in nature, the prosecution need not explain the said injuries. As noted above, the injuries on the person of the appellants were simple and even could be caused by fall. That being the position, nonexplanation of the same will not prove fatal.

In that event it was argued that the sentence keeping in view that the incident is 12 years ago may be reduced suitably. This particular plea in the facts of the present case cannot be ignored. 12 years by no stretch of imagination is a short period. The wounds of hatred must have been healed to a great extent with the passage of time. There is nothing to indicate that during these years, there was any other incident. The appellants had undergone about 3 months of the sentence. In normal circumstances, this would not be adequate but with so much of time having been lost, the sentence in the facts of the present case can suitably be reduced to the one already undergone.

For these reasons, the appeal fails and is dismissed. But the sentence is reduced to one already undergone.