Ram Partap and anr. vs State of Haryana

A S. Nehra, J.

This appeal is directed against the judgment dated 2771991 passed by the Additional Sessions Judge, Rewari, by which Ram Partap and Rohtash, accused appellants. were convicted under Sections 302/34 read with section 34/325 & 323 Indian Penal Code, and each of the accused appellants was sentenced to undergo imprisonment for life and to pay a fine of Rs. 4000/ and, in default of payment of fine. to undergo further rigorous imprisonment for six months under Sections 302/34, Indian Penal Code, to undergo rigorous, imprisonment for two years and to pay a fine of Rs. 1000/ and, in default of payment of fine, to undergo further rigorous imprisonment for three months under sections 325, Indian Penal Code, and to undergo rigorous imprisonment for six months under Section 323 Indian Penal Code. However, the substantive sentences of imprisonment of each of the accused appellants were ordered to run concurrently. The coaccused of the accused appellants, namely, Sheo Bux was given the benefit of doubt and acquitted of the charges.

Briefly stated, the prosecution story is as under :

"Ravinder Singh complainant, resident of village Panwar, is the son of Mangal Ram Chand Mohar Singh deceased. Sheo Narain and Daulat Ram were the cousin brothers of his father. The residential honses of all of them are situated as adjoining with one another. The house of Sheo Bux accused is situated in front of the house Mohar Singh and there is an open plot in between their houses. Regarding that plot, there was a dispute between Mohar Singh etc. on the one hand and Sheo Bux etc. on the other hand. Daulat Ram had obtained a stay order against Sheo Bux etc. from the Court. On 23.7.1990 at about 7. 00 p.m the complainant was present at his house then Smt. Sarti (wife of Shoo Bux) and Bharpai (wife of Mohar Singh deceased) started quarrelling, as Sarti threw dirty water in the street and they were abusing each other. In the meantime. Sheo Bux armed with lathi, his son Ram Partap armed with Kulhari and another son Rohtash armed with lathi arrived there They raised a lalkara that they be taught a lesson for taking possession of the plot. In the meantime, Mohar Singh also arrived there. Ram Partap accused then gave two blows with his Kulhari on the head of Mohar Singh, Rohtash gave a lathi blow on the left side of his head while Sheo Bux gave a lathi blow in the middle of his head. Mohar Singh fell down. Sheo Narain also arrived there : He had Bharpai tried to intervene on which, all the accused gave them injuries with Kulhari and lathis. The accused gave further blows to Mohar Singh while he was lying on the ground in an injured condition. The complainant, Desh Ram and Lalman who were also present near the spot and witnessed the occurrence, rushed to the spot and, on their arrival, the accused ran away with their respective weapons. Mohar Singh expired at the spot on account of the injuries sustained by him. Sheo Narain and Bharpai who had injuries on their persons were taken by Ravinder Singh complainant and his uncle Sheodan in a tractor to Civil Hospital, Balwal, where they were medically examined. Desh Ram was left near the dead body. From the hospital, the complainant went to the Police Station, Bawal, and reported the matter to the police, on the basis of which, FIR Exhibit PN dated 2371990 was recorded by SI/SHO Gulshan Lal under Sections 302/323 read with Section 34, Indian Penal Code. The investigation of the case was taken in hand by SubInspector Gulshan Lal himself, who went to the spot lifted the bloodstained earth, sealed it in a parcel with the seal ''GR'' and it was taken into possession, vide recovery memo Exhibit PM. He then prepared inquest report Exhibit PB1 on the dead body of Mohar Singh and the dead body was sent for postmortem examination. He also prepared rough site plan Exhibit PW 14/A and recorded the statements of the witnesses. He remained in search of the accused up to 271990. On 28790 Ram Partap accused surrendered in the Court of IIaqa Magistrate and the Sub Inspector arrested him from there with the permission of the Court and obtained his Police remand. On 30.7.1990, he interrogated Ram Partap accused in the presence of Subhash and Sheodan. Ram Partap accused made a disclosure statement to the effect that he had kept concealed one Kulhari in the chhappar near his tubewell in the filed and could get the same recovered. His statement Exhibit PW14/B was recorded, which was signed by him. Thereafter, Ram Partap accused, in furtherance of his disclosure statement, got recovered Kulhari Exhibit P1 from the place of concealment. The same was put in a parcel, sealed with the seal RK and taken into possession, vide recovery memo Exhibit PW13/A which was attested by Subhash and Sheodan. The SubInspector also prepared rough site plan Exhibit PW 14/C regarding the place of recovery. Thereafter, he arrested Sheo Bux accused who, on interrogation, made a disclosure statement Exhibit PW14/D to the effect that he had kept concealed a lathi in the fodder in a room of his house and that he could get the same recovered. Consequently, Sheo Bux accused got recovered lathi Exhibit P2 which was put in a parcel, sealed with the seal RK and taken into possession, vide seizure memo Exhibit PW13/B. Rough site plan Exhibit PW14/B regarding the place of recovery of the lathi was also prepared. On 31.7.1990, Rohtash accused was arrested and, on interrogation on 81990, he made disclosure statement Exhibit PW 14/E to the effect that he had kept concealed one lathi underneath the stair case of his house. In furtherance of his disclosure statement, Rohtash accused got recovered lathi Exhibit P3 which was sealed in a parcel and taken into possession, vide recovery memo Exhibit PO. Rough site plan Exhibit PG about the place of recovery was prepared. On 781990, the SubInspector produced both the lathis and the Kulhari before Dr. R. Lekha for his opinion and the doctor gave his opinion that the injuries on the person of the deceased could be caused with those weapons. After the postmortem examination, Constable Maksood Ahmad handed over one parcel of the clothes of the deceased, to the Sub Inspector, which was taken into possession, vide recovery memo Exhibit PH. On 2471990, the SubInspector recorded the statement of Sheo Narain who was found fit to make a statement. The weapons, the bloodstained earth and the clothes of the deceased were sent to the Forensic Science Laboratory, Madhuban (Haryana) for analysis. After completion of the investigation, the accused were challaned."

The prosecution, in support of its case, examined 14 witnesses, namely, PW 1 Dr R Lekha, PW2 Dr. H. G. Arora, PW3 Dr Pardeep Kumar, PW4 Nand Lal Draftsman, PW5 Constable Satbir, PW6 Constable Karam Chand, PW7 Head Constable Ram Kumar, PW8 Constable Maksood Ahmed, PW9 Jeet Ram, PW10 Ravinder Singh complainant, PW11 Shoo Narain PW12 Smt. Bharpai, PW13 Sheodan and PW14 Sl Gulshan Lal.

PW1 Dr. C. Lekha, Medical Officer, Civil Hospital, Rewari, conducted the postmortem examination on the dead body of Mohar Singh on 2471990 at 12.35 p.m and found the following injuries on it :

An incised wound 4" x 1/2" bone deep on the left side of the scalp 41/2" from the left mastoid process. The blood had collected and there was fracture of tempoparietal bone of the size 3" x 1/2" and the underlying brain matter was damaged

An incised wound 3"x 1/2" x bone deep on the left side of scalp and 1/2" lateral to injury No. 1. The blood had collected underneath.

There was lacerated wound 3" 2 1" x muscle deep on the middle of scalp. There was blood underneath the injury with a moderate swelling around the injury.

There was lacerated wound 3" x I" x muscle deep, I" lateral towards left side to injury No. 3. The blood was collected underneath.

There was a reddish swelling 2" x 2" on the left ankle joint at its lateral side,

There was multiple abrasions of sizes 2" x I" to I" x I" on the left arm and forearm.

There was a reddish contusion 21/2" x 2" on the lower part of the back of the abdomen in the midline.

There was a reddish abrasion 1/2"x 1/2".(sic) just above the left eye.

According to the doctor, all the injuries were antemortem in nature caused within the duration of 24 hours and the death occurred due to shock and haemorrhage and coma resulting from multiple injuries sustained by the deceased, which were sufficient to cause death in the ordinary course of nature. Exhibit PA is the post mortem report. On police request Exhibit PB, the doctor gave his opinion on 781990 that the injuries on the person of the deceased could be caused with Kulhari and lathis.

PW2 Dr. H. G. Arora took the Xray of right thumb of Shrimati Bharpai PW on 2571990 and found the fracture of proximal phalanx at proximal end of right thumb. The Xray report in this behalf is Exhibit PD, while Skiagram is Exhibit PD/1.

PW2 Dr. A. C. Arora on the same day conducted Xray examination of right leg and right thumb of Shoo Narain PW and found the fracture of upper 1/3rd of fibula right leg and multiple fracture proximal phalanx of the right thumb. His report in this behalf is Exhibit PE and skigram is Exhibit PE/ 1.

PW3 Dr. Pardeep Kumar conducted the medicolegal examination of Shoo Narain PW on 23.7.1990 and found the following injuries on his person :

A scalp deep lacerated would size 6 cms x 1/4 cm on the top of the head. Bleeding was present, Xray was advised.

A scalp deep incised would on the posterior aspect of the head which was 6cm above the occipital protuberance size 5 cms x 1/4 cm. Bleeding was present Xray was advised.

A red contusion size 12 cms x 3 cms on posterior aspect of the chest on the left scapular region around the injuries a diffused swelling was also present. Xray was advised.

An abrasion I cm in diameter on the right scapular region around the injuries, a diffused swelling was also present. Xray was advised.

Laceration on the lower jaw was also present with fresh bleeding. Teeth were not shaky. Abrasions were also present on lips. Patient was referred to Dental Surgeon, Rewari for his expert opinion.

A red contusion size 8 cms x 3 cms on the right side of the chest and anterolaterally which was 2 cms below the nipple. Xray was advised.

A skin deep lacerated wound size 1 cm x 1/4 cm of the anterior aspect of the right leg which was 20 cms above the angle. Bleeding was present around the injury, a diffused swelling was also present. Xray was advised

An abrasion 2 cms x cms on the lateral aspect of the right knee.

An abrasion 1 cm x 2 cms in diameter on posteriolateral aspect of the left elbow.

A skin deep lacerated wound size 11/2 cms x 1/2 cm on the anteromedial aspect of the left thumb in its distal half. Around the injury, a diffused swelling was also present. Xray was advised.

A skin deep lacerated would size 1 cm x 1/2 cm on the medial aspect of the right thumb in its proximal part. Xray was advised.

A nail bed deep incised wound on the posterior aspect right index finger on its distal part.

Injuries Nos 1, 2, 3, 4, 6, 7, 10 and 11 were subjected to Xray. Injury No. 5 was subjected to Dental Surgeon''s opinion. Rest of the injuries were opined to be simple in nature within the duration of 24 hours. According to the doctor, injuries Nos. 2 and 12 were caused by sharp weapon and the remaining injuries by blunt weapon Exhibit PF is the correct copy of MLR and Exhibit PF/1 is pictorial diagram showing the seats of injuries.

On 2371990 PW3 Dr. Pardeep Kumar examined Bharpai PW12 wife of Mohar Singh deceased and, vide medicolegal report Exhibit PG, found the following injuries on her person :

A scalp deep laterated wound, size 3 cms x 1/4 cm on the left side of the head anteriorly, which was 9 cms above and anterior to the left pinna. Bleeding was present.

A red contusion size 5 cms x 3 cms on the right side of the face on the maxillary area around the injuries. A diffused swelling was also present. Xray was advised.

A red contusion, size 15 cms x 8 cm on the left side of the back on and above the iliac crest. Xray was advised.

A punctured wound with irregular margin 1 cm x 11/2 cm x cm deep on the anterior aspect of the left leg, which was 5 cms below the left knee. Bleeding was present.

A diffused swelling on the right thumb (all around). Xray was advised.

According to the doctor, injuries Nos. 2, 3 and 5 were subjected to Xray and the rest of the injuries were simple caused within 24 hours by blunt weapon. The injuries on the person of Bharpai PW12 could be caused by Kulhari and lathi, as opined by the doctor.

PW4 Draftsman prepared the scaled site plan Exhibit PJ with marginal notes in his hand. PW5 Constable Satbir and PW6 Constable Karam Chand tendered their affidavits, Exhibits PK and PL respectively, in evidence. PW7 Head Constable Ram Kumar delivered the special report to the Ilaqa Magistrate on 2371990 at 1130 p. m. This witness denied that the report was given by him to the Ilaqa Magistrate on 24.7.1990 at 7.00 a.m. PW10 Ravinder Singh complainant deposed that Mohar Singh deceased, Daulat Ram and Sheo Narain are the sons of Cheta that his house is adjoining to their houses that the houses of Mohar Singh and Sheop Bux accused are in front of each other and in between there is a vacant plot that there was a civil litigation over that plot between Mohar Singh etc. and Sheo Bux etc. and that Daulat Ram had obtained a stay order from the Court regarding that plot. PW10 further deposed that, on 23.7.1990 at about 700 p. m he was present inside of his house when Smt. Sarti (wife of Sheo Bux accused) and Bharpai (wife of Mohar Singh deceased) started quarrelling over throwing of dirty water in the street, that on hearing that quarrel, Ram Partap accused armed with Kulhari and Sheo Bux and Rohtash, accused, armed with lathis arrived there and gave a lalkara that they would be teaching lesson to them that, in the meantime, Mohar Singh also arrived there that Ram Partap accused give two Kulhari blows on the head of Mohar Singh deceased that Rohtash and Sheo Bux, accused gave one lathi blow each on the head of Mohar Singh deceased that Sheo Narain came there and he and Bharpai PW rushed to the spot but the accused gave them injuries with their respective weapons that thereafter, the accused further inflicted blows to Mohar Singh deceased who had fallen on the ground that he (complainant) and his uncle Desh Ram witnessed the occurrence and tried to intervene on which, the accused run away along with their respective weapons. PW 10 further deposed that Mohar Singh died at the spot that injured Bharpai and Sheo Narain were then removed to Civil Hospital Bawal, in a tractor that he (complainant) leaving Desh Ram at the spot to guard the dead body, went to the police station and that on his report Exhibit PW, this case was registered against the accused. PW10 (complainant) further deposed that on 3071990, he and Subhash went to the police Station that Rohtash accused was interrogated in their presence on which Rohtash accused made a disclosure statement to the effect that he had kept concealed a lathi in the fodder in a room of his house and that he (accused) could get the same recovered and that the statement Exhibit PW14/1 of Rohtash accused was recorded and, in pursuance of his disclosure statement, Rohtash accused got recovered lathi from the place of concealment, which was taken into possession, vide recovery memo Exhibit PO. PW11 Sheo Narain deposed that, on the day of occurrence, i.e., on 2371990. at about 700 p.m., he was present at his plot when he saw the wife of Sheo Bux accused draining dirty water in the street and the wife of Mohar Singh objecting to it that they both indulged in an altercation that, therefore, he and Mohar Singh went there that in the meantime, the accused also arrived there; that Ram Partap accused was armed with Kulhari while the remaining accused were armed with lathis that Ram Partap accused gave to Kulhari blows on the head of Mohar Singh that Rohtash and Sheo Bux, accused, gave one lathi blow each on the head of Mohar Singh; that he intervented on which, all the accused gave him injuries with their respective weapons; that Bharpai PW was also given injuries by the accused and that Desh Ram and Ravinder Singh complainant rescued them. PW12 Bharpai deposed that, on the day of occurrence, at dusk time Smt. Sarti (wife of Sheo Bux accused) threw dirty water on her; that she had an altercation with her; that her husband (Mohar Singh deceased) came there; that all the three accused also arrived there; that Ram Partap accused gave two Kulhari blows on the head of Mohar Singh, while the other accused, who were armed with lathis, gave one lathi blow each on the head of Mohar Singh deceased; that Mohar Singh fell down; that she rushed to rescue the deceased; that Sheo Narain PW, her husband''s brother, also rushed to the spot; that the accused gave injuries to them also; that Mohar Singh died at the spot; that Ravinder Singh complainant and Desh Ram also witnessed the occurrence; and that Sheodan, who took the injured Bharpai and Sheo Narain to the hospital is also the witness of recovery of Kulhari at the instance of Ram Partap accused and the lathi at the instance of Sheo Bux accused in pursuance of their disclosure statements. PW13 Sheodan has supported the prosecution version. He, however, stated that Sheo Bux accused was threatened by the police while interrogating him about the weapon. PW14 Sub Inspector Gulshan Lal, Investigating Officer deposed about the details of the investigation and the recovery of weapons of offence in pursuance of the disclosure statements of the accused.

The prosecution also placed on record reports, Exhibits PZ/1 and PZ/2, of the Forensic Science Laboratory, according to which, human blood was detected on the earth taken from the spot and the shirt of the deceased, and minor traces of blood were found on the Kulhari but no blood could be detected on the lathis.

When examined under section 313 of the Code Criminal Procedure, Sheo Bux and Rohtash, accused stated that they were not present at the time of occurrence and that they were falsely implicated. They, however, admitted the situation of their houses, the house of the deceased and the plot, as alleged by the prosecution but stated that the plot belonged to them; that it was in their names in the revenue record and that Daulat Ram obtained the stay by misrepresenting the facts.

Ram Partap accused stated that, on hearing the noise of his mother Sarti and Bharpai, he rushed to the spot and saw that Sheo Narain PW and Mohar Singh deceased were assaulting his mother; that Kamlesh, his wife, also arrived there; that when he objected, they gave lathi blows on his head, whereupon he and his brother Raghubir, acting in self defence, caused injuries to Sheo Narain PW and Mohar Singh deceased; and that Bharpai received injuries when she intervened.

In their defence, the accused examined DWI Dr. Y P. Singh who deposed that on 2671990 at 650 p.m. he examined Ram Partap accused in judicial lockup and, vide his MLR Exhibit DWI/A, found the following injuries on his person :

Abrasion with crusting on frontal region of scalp on left side of mid line, 9 cms above the eyebrow.

Abrasion 1 cm x 0.5 cm in front of right leg on the middle. Crusting was present.

Complaint of pain over right side of abdomen. The patient said that he had been hit by blows and stick over abdomen. No injury was seen. However, patient was kept under observation.

According to the doctor, the injuries were simple in, nature of the duration of 1 to 3 days, caused by blunt weapons. The doctor opined that the same could be self suffered or caused by friendly hand.

PG3 Dr. Pardeep Kumar also medicolegally examined Sarti, wife of Sheo Bux accused, on 181990 at 7.30 p.m., vide his report Exhibit DA, and found the following injuries on her person :

A skin deep partially heated wound or the right side of the head, just behind the anterior hair line. Size 4 cms x 1/2 cm. Margins of the wound were swollen. On the forehead of the wound scab was also present and on the posterior end, pus was also present.

Complaint of pain on the epigestric region. On examination, no mark of injury was seen. But an old scar mark was present, epigestric area.

Complaint of pain on the anterior lateral aspect of the right thigh in its middle 1/3rd. On examination, no mark of injury was present.

Complaint of pain of chest posteriorly, on both scapular region. On examination, no mark of injury was seen.

According to the doctor, all the injuries were simple in nature of the duration of 7 to 14 days, caused by blunt weapon. The doctor opined that the injuries on the person of Sarti could be by friendly hand.

PW3 Dr. Pardeep Kumar also medicolegally examined Kamlesh, wife of Ram Partap accused, on 181990 at 8.00 p. m. and, vide his report Exhibit DB, found the following injuries on her person :

An abrasion with dark brown scab 2 cms x 11/2 cms on the left side of the forehead, just below the anterior hair line.

A partially healed scalp deep lacerated wound size 2 cms x� cm on the left side of the head posteriorly, which was 10 cms above the left pinna. Dark brown scab was also present at places. No pus was present.

A diffused swelling on the posterior aspect of the right hand. On examination, no mark of injury was seen. Movement of the hand and fingers were normal.

Complaint of pain on the proximal part of left ring finger, posteriorly. A diffused swelling was also present. Movements were normal.

Complaint of pair on the proximal, 1/3rd of the left middle finger. On examination a diffused swelling was also present. Movements were normal.

Complaint of pain of the left side of the back. On examination, no mark of injury was seen.

The injuries were opined to be simple caused by blunt weapons within the duration of 2 to 10 days. The doctor opined that the injuries on the person of Kamlesh could be by friendly hand.

Mr. Dara Singh, Senior Advocate, learned counsel for the appellants, has contended that the prosecution evidence is not very satisfactory as to how the conflict started and as to who, out of the aforesaid two parties, was the aggressor. He has further contended that it was the a case of sudden fight and conflict between the parties, because Sarti (wife of Sheo Buxsince acquitted) and Bharpai PW12 (wife of Mohar Singh deceased) started abusing each other on account of throwing of dirty water in the street and the appellants and the PWs were attracted to the place of occurrence due to the sudden quarrel. He further argued that Ram Partap and Rohtash, appellants had no motive to inflict injuries on the persons of the complainantparty. In Jumman v. The State of Punjab, AIR 1957 Supreme Court 469, their lordships of the Supreme Court posed a question whether in a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides ?

The said question was answered in the negative by the Supreme Court and it was observed that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300, Exception IV, Indian Penal Code.

It has been held by a Division Bench of this Court in Balbir Singh v. The State, Criminal Appeal No. 1039 of 1964, decided on 30.11.1965 :

"The law draws a clear distinction regarding a case in which a participant in a fight receives fatal injuries and one in which fatal injuries are not caused. If two parties clash in a sudden fight in which nobody is killed, it is the duty of the Court to determine which party was the aggressor and if this cannot be decided on the evidence produced in the case, the accusedparty must be given the benefit of doubt regarding having acted in right of selfdefence. Where, however, somebody is killed in a sudden fight, and if the responsibility for causing his fatal injuries can be fixed on any individual, that individual becomes guilty of culpable homicide not amounting to murder and the Fourth Exception itself provides specifically that, in such a case, it is immaterial which party struck first blow or offered the provocation. In other words, in the case of a killing in a fight of this kind, the law exempts the Courts from having to determine the question of which party actually started the fight."

In the present case Ram Partap appellant is responsible for causing fatal injury to the deceased. Therefore, in view of the above discussion, the conviction of Ram Partap appellant under Sections 302/14, 325 & 323, Indian Penal Code, cannot be upheld though, on the evidence and the circumstances of the case as well as in view of the law discussed above, it is proved beyond any manner of doubt that he is guilty of culpable homicide not amounting to murder. So, his conviction has to be altered from Section 302 IPC to Section 304, PartI, IPC. Having regard to the circumstances of the case, we feel that a sentence of five years rigorous imprisonment would suffice. Since it cannot be said beyond reasonable doubt that Rohtashappellant was the aggressor, therefore, his conviction, in view of Balbir Singh''s case (supra) cannot be upheld.

Consequently, we partly allow the appeal, set aside the convictions and sentences of Ram Partapappellant under Sections 302/34, 325 & 323, Indian Penal Code, but convict him under Section 304, PartI, Indian Penal Code and sentence him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2000/ and, in default of payment of fine, to undergo further rigorous imprisonment for three months and also set aside the conviction and sentence of Rohtashappellant accorded by the trial Court, and acquit him of all the charges. Whole of the fine, if realized, shall be paid to the Legal Representatives of the deceased.