Ram Singh and Others vs State of Haryana

Arvind Kumar, J.—The Appellants have been held guilty under Sections 302, 148, 323 and 452 IPC and have been sentenced to undergo imprisonment for life with a fine of Rs. 1000/- under first head; under second head all of them have been sentenced to undergo rigorous imprisonment for two years while under third head rigorous imprisonment for six months was awarded. Under the fourth head rigorous imprisonment for three years was awarded with each of them to pay a fine of Rs. 300/-. In default of payment of fine under the first and last head, the defaulter was directed to undergo rigorous imprisonment for six months and two months respectively. All the sentences were ordered to run concurrently.

The genesis of the prosecution case finds its origin when an occurrence took place on 5.8.1998 between Neelam sister of Ved Parkash on one side and Bhartan and one other daughter of accused Ram Singh and wife of Sanjay accused in the village over water tap. According to the prosecution, following the said altercation, next day i.e. 6.8.1998 at about 4:00 p.m. Ram Singh, Charan Singh, Sanjay, Bijender sons of Ram Singh along with Zile Singh and Attar Singh brother-in-law of Ram Singh came near the house of complainant Ved Parkash. At that time Ram Singh was carrying a pharsi; Charan Singh was holding a knife while the others were having iron rod each. They all entered the house of Sher Singh, brother of Ved Parkash and exhorted to finish all the brothers as they had picked up quarrel with their women folks. On hearing the noise, Ved Parkash complainant along with his brothers Raj Singh and Rajesh reached the house of Sher Singh. Meantime, Sanjay gave a blow with iron rod on the right hand of Sher Singh; Bijender inflicted iron rod blow which landed on the head of Rajesh, due to which his head was ruptured and he fell down. Thereafter, Charan Singh inflicted a knife blow against the head of Ved Parkash. Attar Singh and Zile Singh also gave iron rod blows to Sher Singh whereas Ram Singh caused injuries to Ved Parkash with pharsi. Raj Singh raised a noise which attracted Sajjan Singh and Sanjiv Kumar and other villagers, whom seeing coming, the accused fled away from the spot with their respective weapons.

The injured were shifted to the hospital from where an intimation was sent to the police, upon which ASI Dharam Singh visited the hospital. The doctor opined the injured Ved Parkash and Sher Singh unfit to make the statement while injured Rajesh was referred to the PGIMS, Rohtak considering his serious condition. On the morning of 7.8.1998 statement of Ved Parkash was recorded by the police, on the basis of which case under Sections 307, 148, 323, 452, 149 IPC was registered. The police learnt about the death of Rajesh and consequently offence was converted to Section 302 IPC. The dead body of Rajesh was subjected to post-mortem and then handed over to his relatives. Necessary investigations were carried out. On 9.8.1998 accused Sanjay, Charan Singh and Attar Singh were arrested and iron rods and knife, which they were carrying at the time of occurrence, were recovered from them and taken into police possession. Accused Ram singh, Zile Singh and Bijender Singh were arrested on 10.8.1998 and weapons of offence were recovered from them. On completion of investigation, final report u/s 173 Code of Criminal Procedure was prepared and forwarded to the Court for trial of accused.

Charge under Sections 148, 302, 323 and 452 read with Section 149 IPC was framed against the accused, to which they pleaded not guilty and claimed trial.

In order to prove its case the prosecution examined Dr. P.K. Charaya as P.W. 1, who gave the opinion regarding fitness of injured Sher Singh; P.W. 2 Dr. Ved Kumar medically examined Rajesh (since deceased) and found lacerated wound on frontal aspect of size 5 x 5 cm. This witness also examined Sher Singh as well as Ved Parkash and found five and three simple injuries respectively caused with blunt weapon. P.W. 3 Dr. R.K. Radhwa conducted the post-mortem examination on the dead body of Rajesh and in his opinion the cause of death was injury to head and its complications. P.W. 4 Const. Virshakti Singh prepared the scaled site plan of the place of occurrence while P.W. 5 Const. Krishan Kumar tendered his affidavit in his evidence. P.W. 6 Rambir clicked the photographs of the place of occurrence. P.W. 7 Ved Parkash is the complainant/injured and P.W. 8 Sher Singh is also an injured/eye witness. P.W. 9 HC Ajit Singh recorded the formal FIR and after conversion of offence to Section 302 IPC he sent the special reports to the higher officers. P.W. 10 Dr. Ishwar Singh Nasir gave his opinion about the fitness of injured Ved Parkash. P.W. 11 ASI Dharam Singh investigated the case while P.W. 12 SI Chandgi Ram partly investigated the case at the later stage.

When examined u/s 313 Code of Criminal procedure, the case of the accused was of false implication. Accused Ram Singh, Charan Singh, Sanjay pleaded that they were not present at the time of occurrence while accused Zile Singh pleaded his false implication. Accused Bijender and Attar Singh took the stand that the complainant party was the aggressor and they opened attack on them as well as Urmila and the women folk of complainant party started pelting brick-bats and Rajesh sustained injuries in that scuffle.

In their defence they examined Dr. U.S. Disodia as D.W. 1. According to the testimony of this witness he examined Attar Singh, Urmila daughter of Ram Singh and Bijender son of Ram Singh on 6.8.1998 and found two, six and three injuries respectively on their person. Said Urmila stepped into the witness box as D.W. 2.

The learned trial Court, on appreciation of evidence, vide judgment and order dated 23.10.2001 and 25.10.2001 respectively convicted and sentenced the Appellants in the manner indicated above. Hence, this appeal.

We have heard learned Counsel for the Appellants as well as learned State Counsel and with the assistance rendered by them, have carefully gone through the records of the case.

At the very outset learned Counsel for the Appellants has pointed out that Appellant Ram Singh and Charan Singh have since died, the instant appeal to their extent be abated. It is ordered accordingly.

The occurrence as well as their presence at the spot has not been disputed by Appellants Bijender and Attar Singh. They have also not disputed that Rajesh (since deceased) received injuries in the scuffle that took place on 6.8.1998 between the complainant side on one hand and Zile Singh, Attar Singh and Urmila. According to them the occurrence took place when Rajesh misbehaved Urmila on the water tap. They have also not disputed that the occurrence took place at the house of Sher Singh.

Let us first examined the plea of self-defence raised by Appellants Bijender and Attar Singh. It is a matter of record that during medical examination five injuries with blunt weapon were found on the person of Sher Singh while three blunt injuries were noticed on the person of complainant Ved Parkash. In the same manner a single head injury caused with blunt weapon was found on the person of Rajesh, which had resulted into his death. D.W. 1 Dr. U.S. Disodia proved two injuries on the person of Attar Singh Appellant; six on the person of Urmila while three injuries were noticed during examination of Appellant Bijender. Though some of the injuries were kept under observation, but there is nothing on record that anyone out of them was grievous in nature and hence, it can be said that all of them were simple in nature. This witness had categorically admitted that the injuries on the person of Attar Singh, Urmila and Bijender by a fall on hard surface or during agricultural pursuits cannot be ruled out. Merely because some of the accused had injuries on their his person do not confer a right of private defence exercised to the extent of causing death, as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused were under such grave apprehension about their safety that retaliation to the extent done was absolutely necessary. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot also be stated as a universal rule that whenever the injuries are on the body from the side of accused person, a presumption must necessarily be raised that the accused had caused injuries in exercise of the right of self defence. It is well settled that to claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused. However, in the instant case, no evidence much less, cogent and credible has been adduced in this regard. The accused have failed to show that such an attack was necessary for them or the situation was so grave in which they have to retaliate to such an extent as to cause the death of Rajesh. None of the injuries on the person of Appellants Bijender and Attar and Urmila, who claimed to have sustained the injuries in the same occurrence, were on vital part. There is nothing on record from which it can be inferred that the Appellants were under such an apprehension that if they would not resist then the other side might cause their death or inflict grievous injuries. Apart therefrom, the Appellants had every reason to attack the complainant party because they were annoyed with the altercation of their women folk with Rajesh and others. It is the accused side which had gone to the house of Sher Singh, one of the brother of complainant side. Thus, from the facts and circumstances of the case, the plea of self-defence, so raised by Appellants Bijender and Attar Singh is not sustainable. That apart, it cannot be said that the prosecution has tried to conceal the injuries on the person of Appellants because when the statement of Sher Singh u/s 161 Code of Criminal Procedure was recorded, he categorically said that they had also inflicted injuries on the accused persons, which retaliation is very obvious due to the fact that within their sight their brother Rajesh had been given injury on the head due to which it was ruptured.

Although the occurrence is not in dispute, but it has been argued that the FIR has been lodged at a belated stage after due deliberations and consultations and the case of the prosecution is hit by the fact that there is delay in sending the special report to the Magistrate, which reached in the night at 9:10 p.m. of 7.8.1998 while the FIR came to be registered in the noon at 12.30 p.m. The argument does not convince us. It needs to emphasise that it is not as if every delay in sending the special report to the Illaqa Magistrate would necessarily lead to the interference that the FIR has not been lodged at the time stated or has been ante-timed or that the investigation is not fair and forthright. If in a case, it is found that the FIR was recorded without delay and the investigation started on that FIR, then improper and objectionable the delayed receipt of the report by the Magistrate concerned, that cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable. The occurrence in this case took place on 6.8.1998 at about 4:00 p.m. The injured were shifted to the hospital, from where intimation was sent to the police station. In the night itself the police reached the hospital, but the injured were declared unfit to make the statement. It is only in the morning of next day, when the doctor declared injured Ved Parkash fit, his statement was recorded and sent to the police station, ultimately the case was registered. In this backdrop of the sequence of the events it cannot be said that the delivery of the special report was delayed, to say that it has affected the case of the prosecution, especially under the circumstances when the FIR was recorded without delay and the investigation started on that FIR.

The prosecution case mainly rests on the testimonies of P.W. 7 Ved Parkash complainant and P.W. 8 Sher Singh, the other eye-witness. Both of them in their testimonies have unequivocally stated that following the dispute that took place a day prior to the occurrence between their sister Neelam on the one hand and wife and daughter of Ram Singh along with wife of son of Ram Singh i.e. Appellant Sanjay, the next day Ram Singh along with his three sons Sanjay, Charan Singh and Bijender along with Attar Singh and Zile Singh, the brothers-in-law of Ram Singh carrying iron rods, knife and pharsi came to their house and exhorted to eliminate them. Due to fear they closed their door of the house, on which the accused threw brick bats and with the help of iron rod, remove the bolt of the door and entered into the house. Bijender gave a blow with iron rod on the head of Rajesh while Sanjay gave a blow on the arm of Sher Singh; Charan Singh caused a knife blow on the head of Ved Parkash while Charan Singh and Zile Singh caused injuries with knife and iron rod respectively to Sher Singh. The accused also also assaulted Ved Parkash on his back with reverse side of pharsi. The testimonies of both the eye-witnesses have been assailed on the ground of their relation with the deceased i.e. being the brothers of the deceased. It is not the absolute law that the evidence of relation witness is not entitled to any weight but this very circumstance would add to the value of their evidence because they would be interested in ensuring that the real culprit responsible for the murder be punished and not the innocent person. The occurrence had admittedly taken place in the house of Sher Singh (P.W. 8) and their presence in no way can be doubted. Even otherwise, Appellants Bijender and Attar Singh have not disputed the presence of aforesaid persons with the taking of plea of causing them injuries in self-defence, which, as discussed above, has been rejected. The statements of both the eye-witnesses are corroborative on material particulars so far the accused-Appellants having assaulted them as well as inflicted injury to Rajesh is concerned. They were subjected to cross-examinations but they stood firm to their stand. Some minor contradictions, so referred in their statements, do not carry any significance as it cannot be expected from a witness to give photographic version of the events which had taken place about more than a year prior to their deposition in the Court. In the FIR, which has been lodged without delay, the names of Appellant Ram Singh, Charan Singh, Sanjay and Zile Singh, who claimed that they were not present at the spot along with Bijender and Attar Singh, who since have not disputed their presence at the time of occurrence, are specifically mentioned therein. The participation of all the Appellants and the role attributed to each of them, had been reiterated by the eye-witnesses in their testimonies recorded in the Court. Though there is some variation in the initial version given in the FIR from that deposed in the Court by eye witnesses, but it is settled that FIR is not an encyclopedia and the requirement is to apprise the police about the manner in which the occurrence had taken place and the names of the assailants. Minute details of the occurrence is not required. Further, the statements of both the eyewitnesses corroborate the medical evidence. The recovery of weapon of offence, which has been duly proved on record, also lends corroboration to the commission of crime by the accused-Appellants. Hence, the presence of the Appellants at the spot and their participation in the offence cannot be doubted in any manner. So far as version of D.W. 2 Urmila Devi regarding her presence at the spot and her receiving of injuries at the hands of complainant side is concerned, the same appears to be untrue. Had she been present at the spot, the complainant side must have get her name recorded in the FIR as an assailant as well and cannot be allowed to go scot-free by the complainant side had she really participated in the offence. It cannot be believed that if she was present at the spot despite that she was not named by the complainant side. Moreover, the injuries on her person by a fall was not ruled out by the doctor, who examined her. She admittedly is the daughter of Ram Singh, sister of Bijender Singh etc. Thus, it appears that to save them, this story has been cooked up by the defence.

The plea that the motive was not strong is not sustainable as the variation in human nature, being so vast, murders are known to have been actuated by much lesser motive. How the mind of an assailant react is not possible to fathomed from a detached reflection.

The next question arises as to whether Section 149 IPC has applicability in the case in hand or not? The essential ingredients to drive the case within the ambit of Section 149 IPC are (i) Commission of offence by any member of unlawful assembly and that the said offence was committed in prosecution of the common object of unlawful assembly. To determine the common object of unlawful assembly, the conduct of each member of the assembly is very material. It is to be seen that at which point of time they have the common object and to what extent and the time beyond which they may differ in their common object and knowledge possessed by each accused/member of unlawful assembly of what is likely to commit in prosecution of the common object. Time is the essence of offence and there must be close nexus between the offence and the common object. The connection must be proximate and not remote.

In the instant case, the story put forth by the prosecution is that the Appellants armed with deadly weapons entered into the house of Sher Singh P.W. 8 and exhorted to eliminate them. Firstly, Sanjay gave a blow with iron rod on the arm of Sher Singh and after that Bijender gave a blow with iron rod on the head of Rajesh. Later the Appellants assaulted Ved Parkash and Sher Singh. The blow was not repeated by Bijender. There was a quarrel a day earlier and as evident from the statement of P.W. Ved Parkash even the quarrel had preceded to the occurrence. There is nothing on record which is suggestive of the fact that at any point the Appellants shared common intention to commit the murder of Rajesh. Hence, there was no nexus between the common object and the offence actually committed. Therefore, the provisions of Section 149 IPC cannot be invoked in the present case and we have to examine the overt act attributed to the individual accused as well as their participation in the commission of offence.

So far as Appellants Sanjay, Attar Singh and Zile Singh are concerned. They have been attributed simple injuries to Sher Singh and Ved Parkash with blunt weapons. Therefore, they are liable to be punished u/s 323 IPC besides Section 452 IPC.

It is the case of the prosecution as well as reiterated by the eye witnesses that head injury on the person of Rajesh deceased was inflicted by Appellant Bijender. It has come on record that it was the head injury which has resulted into the death of Rajesh. It cannot be said that it is rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the facts of each case. Except, the said fatal blow, no overt act has been attributed to Appellant Bijender. As discussed above, a quarrel had preceded to the occurrence. Taking the factual scenario of the case; more particularly the nature of the offence, the background facts, the part of the body where the injury is inflicted and the circumstances in which the assault is made and the force used while giving that single blow, we are of the opinion that the Appellant Bijender is guilty of committing culpable homicide not amounting to murder and the intention was to cause such an injury which was likely to cause the death.

We, accordingly, convert the conviction of the Appellant Bijender from one u/s 302 IPC to Section 304, Part-I, IPC and reduce the sentence from life imprisonment to seven years'' R.I. Besides, he is directed to pay a compensation of Rs. 1.5 lacs to the legal representatives of the deceased Rajesh. In default of payment of compensation, he shall further undergo rigorous imprisonment for one and a half years. His conviction and sentence u/s 323 IPC is set aside, but is maintained u/s 452 IPC, which shall run concurrently with other substantive sentence awarded to him u/s 304, Part I IPC. The appeal to the extent of Appellants Sanjay, Zile Singh and Attar Singh is partly allowed and their conviction and sentence under Sections 148 and 302 with the aid of Section 149 IPC is set aside. However, their conviction under Sections 323 and 452 IPC is maintained, but their custodial sentence is restricted to the period already undergone by them.

The appeal stands disposed of with the aforesaid observations and directions.

Copy of the order be sent to the concerned Chief Judicial Magistrate for compliance.