Ram Parshad and ors. vs State of Haryana

S.D. Bajaj, J.

Inside General Hospital, Gurgaon, author of First Information Report No. 189 recorded in Police Station City, Gurgaon, at 7.25 of February 10, 1989. PW5 Umesh Kumar stated to S.I. Sish Ram :

"I am a resident of the above mentioned address. Today I along with my elder brother Naresh, Ram Bahagat s/o Risal Singh, Ram Phal s/o Dhan Jat by caste r/o Shahbad had come in the marriage of the son of Bhim Singh Kumhar r/o Shahbad at about one O''clock to Jaikampura Gurgaon at the house of Budh Ram Kumhar. The marriage party had stayed at Kumhar Dharamshala. A few persons of the marriage party had gone to attend the phere ceremony. And we four persons along with other members of the marriage party were coming back to Dharamshala after having out meals. At about 5.45 P.M. as we reached in from of the Dharamshala Ram Parshad Kumhar who works as a Plumber holding a broken bottle in his hand, Lachhman Kumar who works as a scooter repairer holding a rod in his hand and another person whose name I do not know but can identify him on seeing holding an iron pipe in his hand came suddenly from the back side and hurled abuses and said that the members of the marriage party (Baraties) had created nuisance. Ram Parshad Kumhar r/o Jaikampura, Gurgaon after coming immediately gave a straight thrust blow with the broken bottle on the neck of my brother Naresh and thereafter pulled it out and Lachhman Kumhar resident of Jaikampura hit with the iron rod which he was holding in his hand on the left side of my face under the eye and also hit with the rod on the forsum of right hand of Ram Bhagat. The third man gave a rod blow to Ram Bhagat who warded off the same with his hand. Description of the third man was that he had wheatish complexion, mediocre height, strong build up and aged about 24/25 years. On hearing the noise, as several persons of the marriage party arrived there, the three of them fled away. Ram Bhagat, Ram Phal and I brought my brother Naresh to the hospital, Gurgaon, in a taxi bearing No. DLT 6275 which I had driven. In the hospital after examining my brother Naresh, doctor declared him dead. We had no dispute or grudge with the aforesaid three persons i.e. Ram Parshad Kumhar, Lachhman Kumhar r/o Jaikampura on the eve teasing with the girls by someone of the marriage party they got enraged, opened an attack and caused injuries to us."

On being charged with the commission of offences under sections 302/34, 325/34 and 323/34 of the Indian Penal Code, all the three accused in Ram Prashad, Laxman and Sarup Chand pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated April 18, 1990 and the sentence order dated April 19, 1990 learned trial court acquitted Sarup Chand accused by giving him the benefit of doubt and convicted the remaining two accused of the commission of offences under sections 324/34 and 323/34 of the Indian Penal Code. Principal accused Ram Parshad was convicted for the commission of offence under Section 302 of the Indian Penal Code, and his co accused Laxman of the comission of the offence under section 302 read with section 34 of the Indian Penal Code. For the conviction under sections 302 and 302/34 of the Indian Penal Code each one of the two accused was individually awarded imprisonment for life and fined Rs. 250/. In default of payment of fine each of one of the two accused was ordered to undergo individually rigorous imprisonment for a further period of two months. In respect of conviction under section 325/34 of the Indian Penal Code, each one of the two accused was awarded rigorous imprisonment for one year and to pay Rs. 100/ as fine and in respect of conviction under section 323/34 of the Indian Penal Code each on of the two accused was awarded rigorous imprisonment for six months. All the three substantive sentences of imprisonment awarded to each one of the two accused were, however, ordered to run concurrently. Feeling aggrieved therefrom, both the convicted accused have jointly filed Criminal Appeal No. 148DB of 1990 in this Court.

We have heard Shri R.S. Cheema, Senior Advocate, with Shri A.S. Virk, Advocate for appellant No. 1, and Shri. R.S. Sahota, Advocate for appellant No. 2. and Shri. J.C. Sethi, Additional Advocate General, Haryana with Shri. D.R. Trikha, Deputy Advocate General, Haryana for the State and carefully perused the relevant material on record.

Umesh Kumar PW 5 states :

"On 10.2.89, I, my brother Naresh, Ram Kumar etc. had come to Gurgaon in the marriage party of Baljit son of Bhim Singh, Kumhar of our village. We reached Gurgaon at about 1 p.m. We reached Kumhar Dharamshala in Jacumpura village. After about 2/21/2 hours, we started from Dharamshala to the house of Budh Ram for Phera ceremony. Some persons started taking meals there and some sat there for Phera ceremony. I, my brother Naresh deceased, Ram Bhagat and Ram Phal were also taking meals. There we meet Ram Prashad accused and Lakshaman accused now present in the court and Rajbir and Umed. RamParshad told that he worked as plumber. Laxman accused told that he was a scooter mechanic. After taking to them we were returning towards Dharamshala at about 5.45 P.M. When we had reached in front of Dharamshala, all the three accused now present in the court namely Ram Parshad, Laxman and Sarup Chand called us from behind saying that members of marriage party had created lot of nuisance by their behaviour. The accused started abusing. We turned back to see them. Ram Parshad had a broken bottle. Laxman accused had an iron rod. Sarup Chand accused had an iron pipe. Sarup Chand is handicapped by one hand. Sarup Chand accused same and caught hold of my brother Naresh from his head. Ram Parshad accused thrust a broken bottle blow in the neck of Naresh and then took out the said bottle. Laxman accused gave a blow with iron rod on my left eye. Laxman accused also gave two blows with the rod, to Ram Bhagat on left hand and right upper arm. Sarup Chand accused gave a pipe blow on my left lower arm and another blow on my right elbow. Sarup Chand also gave an iron rod blow to Ram Bhagat who defenced the same on his hand. On hearing our noise and on seeing some persons coming to us thereupon, the three accused fled away."

Out and out independent corroboration of the deposition of the witness aforesaid is forthcoming from the statement on solemn affirmation of Ram Bhagat PW 6 who states :

"On 10.2.89, we had come in the marriage party of Dharambir s/o Bhim Singh Kumhar of our village to Jacumpura in Gurgaon. We reached here at about 1 PM in Kumhar Dharamshala. I, Naresh deceased his brother Umesh Kumar. PW, Ram Phal, PW, were among the members of marriage party. After about 2/21/2 hours, we along with other baratis went to the bride''s house for Phera ceremony. Some persons sat there for phera ceremony and the others started taking meals. We all the aforesaid four persons also started taking meals. There we met three/four persons namely Ram Parshad, accused, and Laxman accused, both now present in court and Rajbir and Umed. They and were introduced to each other. Ram Parshad told that he was a plumber. Laxman told that he was a scooter mechanic. Rajbir and Umed told that they were in service. After taking meals, we went towards Dharamshala. It was about 5.30/5.45. When we all the four were about to reach the Dharamshala, we heard voices from behind that the baratis have created utter nuisance. We turned back and saw that Ram Parshad accused had a broken bottle in his hands and Laxman accused had an iron rod and Sarup Chand accused also now present in the Court had an iron pipe. Sarup Chand accused, with his arm round the head of Naresh, caught him. Ram Parshad accused thrust the broken bottle in the neck of Naresh and took out the same. Laxman accused inflicted and iron rod blow on the back of my right hand and also inflicted a rod blow below the right eye of Umesh Kumar. Sarup Chand accused inflicted two blows with iron pipe to Umesh Kumar one on the back of his hands and the other on his elbow. But I do not remember which hand and which elbow were hit. We raised alarm and then all the three accused fled away on seeing some persons coming towards us."

Since the two eye witnesses are both injured, their presence at the place of occurrence at the relevant time has to be accepted.

Eye witness account of the occurrence narrated by the two witnesses aforesaid gets born out completely from the expert medical opinion of Dr. Rajan Sharma PW 3 qua deceased Naresh Kumar and from the statement of Dr. B.B. Aggarwal PW 1 in regard to the injuries on the person of two injured eye witnesses in Umesh Kumar PW 5 and Ram Bhagat PW 6. Dr. Rajan Sharma PW 3 states :

"I conducted the post mortem examination on the body of Naresh Kumar son of Sh. Jaswant Singh aged about 22 years resident of village Shahbad Mohammadpur Delhi45 on 11.2.89 at 10.30 A.M.

Injury

A lacerated wound 3"x2" on the left side of the neck extending from the angle of the louis laterally towards upper and left side of neck. Upon dissection the juglar vein was found to be cut with the muscles and tendons torn and exposed. Blood present.

Death in my opinion was due to haemorrhage and acute shock resulting from injury to large vessel i.e. Jugular vein. The injury was ante mortem in nature and was sufficient to cause death in the normal course of events. Probable time between injury and death was within few months. Probable time between death and post mortem was within 24 hours.

In regard to the two injured eye witnesses Dr. B.B. Aggarwal PW 1 states :

"On 10.2.89 I medically examined Ram Bhagat son of Risal Singh 27 years make resident of Shahbad Mohammadpur on police request and found the following injuries :

Swelling on the dorsum of right hand which was reddish in colour.

There was complaint of pain on the pammer on the right hand. There was no external mark of injury seen. The Xray was advised for both the injuries regarding probable duration of injuries, injury No. 1 was within 24 hours and for injury No. 2 duration could not be ascertained. Both the injuries were caused by blunt weapon. Exhibit PA is correct carbon copy of ML Report and is signed by me.

On the same day at 9.30 P.M. I medicolegally examined Umesh Kumar son of Jaswant Singh 20 years male resident of Shahbad Mohammadpur and found the following injuries.

Abrasion reddish 1 x 1 cm on the medical aspect of right elbow.

There was contusion reddish in colour over left side of face measuring 1 x 1 cm just below the left eye.

Complained of pain on the left hand but there was no visible mark of injury.

All the injuries were simple in nature caused by blunt weapon and was within the duration of 24 hours. Ex. PB is the correct carbon copy of my ML Report and is signed by me.

On 11.2.89 I radiologically examined Ram Bhagat son of Richpal singh above referred patient and found fracture of fourth metaearple of right hand. Ex. PC is my report in this respect and is signed by me. Ex PC/1 is the skigram taken by me in this respect."

In cross examination the witness stated :

"Injuries No. 1 and 2 on the person of Umesh Kumar should be round injuries and these injuries can be possible even by stone throwing. Injury No. 2 can be possible with a lathi blow whereas injury No.1 is not possible with lathi, or rod or pipe. If a slanting blow is given by a lathi or rod, a linear injury can be expected but it will depend upon the area covered by the blow if a smaller area is covered at the time of the blow an injury like injury No. 2 is possible. Injury No. 2 is possible only if a lathi blow or a rod blow is given thrust wise. My opinion regarding injury No.3 on the person of Umesh Kumar is the same as in respect of injury No. 2 of Ram Bhagat. Injury No. 2 on the person of Umesh is possible by a stone throw as well. These injuries were possible within 6 hours of my examination because there was no serum exuding from the injury No. 1 on the person of Umesh Kumar. Injury No. 1 cannot be self suffered though it is superficial injury because in the light of second injury, injury No. 1 could not be self suffered. Individually injury No. 1 could be self suffered or by a fall."

Medical opinion thus stands by the narration of events at the occurrence unfolded by the two injured eye witnesss aforesaid. In this view of the matter finding of `guilty'' returned by the learned trial court against the two convicted accused is affirmed.

Occurrence is of 5.45 P.M. on February 10, 1989. Statement of the injured eye witness was recorded by S.I. Sish Ram inside General Hospital Gurgaon, on receipt of ruqa from the Medical Officer Formal First Information Report came to be recorded on the basis of statement aforesaid in Police Station City, Gurgaon, at 7.25 P.M. Special report of the occurrence reached the Ilaqa Magistrate at 11.55 P.M. on the same day nearly 6 hour and 10 minutes after the occurrence. Explanation for this delay narrated by Constable Lal Chand No 87 P.W. 9 is :

"On 10.2.89 I was posted as constable in P S City Gurgaon. On that day I had taken the special report of FIR of this case to the officers including Ilaqa Magistrate. I had started from the Police Station at about 8 P.M. with three copies of the FIR. First of all I went to the residence of Ld. CJM. Gurgaon but the learned Magistrate was not at his residence. Then I went to the residence of S P Gurgaon. But he was also not there. The telephone receptionist declined to accept the copy of FIR. Then I went to reader of SP and gave a copy of FIR to him. Then I went to the house of ASP, Gurgaon, and gave one copy of FIR to him. Thereafter again I went to the house of CJM, Gurgaon, at about 9/9.15 P.M. but still he was not available at residence. Then I went back to PS City Gurgaon to take meals. I started again from the PS at about 9.45 P.M., and come to the residence of learned CJM but he was still not at his house. Then I kept on waiting at his residence. After about 11/2/2 hours the learned CJM came and I gave copy of FIR to him."

Commenting upon delay like the present one their lordships of the Supreme Court observed in Rana Pratap v. State of Haryana, AIR 1983 SC 680, "The First Information Report was given at 7.00 M P. The special report which was prepared thereafter was despatched to the Magistrate at Karnal, 13 miles away, by Special Messenger. It reached the Magistrate at 3.00 a.m. One must make some allowance for delays arising in the course of the ordinary conduct of human business. After the First Information Report is given, some time must have been taken to prepare the special report. A special messenger must have been sent for. Instructions must have been given. He must have made some preparations to go upon the journey, perhaps have a meal and a change of dress. If he was travelling by some vehicle, there must have been some further delay to arrange for a vehicle. After reaching Karnal, the messenger must have made some other arrangements to go from the place where the vehicle must have stopped to the residence of the Magistrate." Supreme Court, therefore, held the delay of 8 hours as duly explained. In the present case the delay of 6 hours and 10 minutes only. In line with the guidelines afforded by the Supreme Court the delay in this case is also held to have been satisfactorily explained.

Much capital has been made of the acquittal of Sarup Chand and it has been asserted that the trained and faulty investigation should not be relied upon convict the remaining two accused as well. The argument is wholly without merit. For the reasons set out in para 20 of its impugned judgment learned trial court rejected the evidence collected by the prosecution against Sarup Chanda and, therefore, acquitted him. Evidence against the remaining two accused coming from the mouth of injured eye witnesses has been duly corroborated by expert medical opinion and was, therefore, rightly availed of and relied upon by the learned trial court of convicting them. Principle of `falsus in uno falsus in omnibus'' does not hold good in this case and therefore the faulty investigation against Sarup Chand cannot be made the basis for acquittal of the remaining two accused. In Alma and others v. State of Madhya Pradesh, AIR 1991 SC 1519 their lordships of the Supreme Court observed :

"Where in a murder trial the eye witnesses were found to be truthful, natural and independent witnesss and they had no reason to falsely implicate the accused, reliance could be placed on such witnesses for conviction of accused who were named by such witnesss though such witnesses were treated as hostile in regard to other accused persons. In such a case, acquittal of some of the accused named by the witnesses by trial court on the technical ground viz that their names did not appear in FIR, would not be relevant so far as credibility of the witnesses was concerned. In such a case the plea that the conviction could not be recorded with the aid of Section 149 should make any substantial difference as it could be sustained with the aid of Section 34, Indian Penal Code."

The two accused named in the First Information Report could, therefore, be legitimately convicted by the learned trial court on the basis of evidence which was not relied upon by it to sustain the conviction of third coaccused Sarup Chand, who was not named in the First Information Report.

Exception I below Section 300 of Indian Penal Code reads :

"Exception I. When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person bymistake or accident.

The above exception is subject to the following provisos :

First That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation Whether the provocation was grave and sudden enough to prevent to offence from amounting to murder is a question of fact."

Learned trial court, therefore, rightly observed in para 34 of its impugned judgment, "It cannot be said that accused were deprived of the power of their self control at the time of occurrence. Moreover identity of the girl who was allegedly teased and the identity of the eve teaser has not come on record. So, there was no reason for the accused to get provoked unless it is proved that teased girl was their relative or they were otherwise interested in her. Moreover, for applicability of this exception, it is necessary that provocation should not only be sudden but also be grave. But in our case, the alleged provocation was not grave". Neither of the two convicted accused is, therefore, entitled to ask for and obtain the benefit of the exception aforesaid.

Exception 4 to Section 300 of the IPC reads :

Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner.

Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault."

Umesh Kumar admitted in cross examination, "I had stated before the police that the fight took place suddenly and we had no earlier enmity with the accused." Section 304 of the IPC reads :

"304. Punishment for culpable homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death".

Offence committed by Ram Parshad accused qua Naresh Kumar narrated in the First Information Report is, "Ram Parshad Kumhar r/o Jaikampura, Gurgaon, after coming immediately gave a straight thrust blow with the broken bottle on the neck of my brother Naresh and thereafter pulled it out".

Resultant injury was described by Dr. Ranjan Sharma PW 3 as follows :

"Injury

A lacerated wound 3" x 2" on the left side of the neck extending from the angle of the louis laterally towards upper and left side of neck. Upon dissection the Juglar vein was found to be cut with the muscles and tendons torn and exposed. Blood present.

Death in my opinion was due to haemorrhage and acute shock resulting from injury to large vessel i.e. Jugular vein. The injury was antemortem in nature and was sufficient to cause death in the normal course of events. Probable time between injury and death was within few minutes. Probable time between death and post mortem was within 24 hours."

Part I of Section 304 of the Indian Penal Code applies where the offence is not murder by reason of its falling within one of the exceptions to Section 300 of the Indian Penal Code. In the present case injury on the neck of the deceased inflicted by the main accused falls under exception 4 to Section 300 of the Indian Penal Code and, therefore, the conviction of the main accused Ram Parshad is altered from Section 302 to Section 304 Part I of the Indian Penal Code. Similarly for identical reasoning conviction of coaccused Laxman is also altered from Section 302/34 to Section 304 Part I read with Section 34 of the Indian Penal Code. For their altered conviction each one of the two accused aforsaid shall individually undergo rigorous imprisonment for a period of 10 years. Remaining convictions under Sections 325/34 and 323/34 of both the accused by the learned trial court are, however, maintained. Criminal Appeal No. 148DB of 1990 is, therefore, disposed of on these terms.

JUDGMENT accordingly.