Roshan Lal vs State of Haryana

S.S. Dewan, J.—The four appellants Puran Chand and his three sons Roshan Lal, Ram Sarup and Jaipal along with his fourth son Baljit Kumar were committed to the Court of Session to stand their trial for the murder of Basanta Ram and for causing hurt to Gurnam Singh, Mukhtiar Kaur and Dharam Pal. Since Baljit Kumar was mentioned as a child in proceedings of the investigation, the learned Sessions Judge, Ambala, segregated the case of Baljit Kumar accused and ordered that he be tried by the Chief Judicial Magistrate, Ambala, under the provisions of the Haryana Children Act, 1974 and framed charges against the four appellants and proceeded with their trial. The learned Sessions Judge convicted Roshan Lal under S. 302 Indian Penal Code and sentenced him to imprisonment for life and a fine of Rs. 500/ or, in default to undergo further rigorous imprisonment for three months. Puran Chand, Ram Sarup and Jaipal were convicted under S. 323 Indian Penal Code and each of them was sentenced to 6 months'' rigorous imprisonment and, a fine of Rs. 100/. They have challenged their convictions and sentences by filing two separate Criminal Appeal Nos 153/DB of 1984 and 144/SB of 1984. This judgment will govern both the appeals.

The prosecution case in brief is that on 26th January, 1983 at about 8.00 a.m. Basanta Ram deceased, his sons Dharam Pal and Gurnam Singh and the latter''s wife Mukhtiar Kaur were placing some earth in the drain so that the drain water may not flow towards their house. After about an hour of the said incident a Panchayat was also held to settle the dispute between the parties but a little later, at about 10 a.m., Roshan Lal, Puran Chand, Ram Sarup, Jaipal and Baljit all armed with Lathis came there and started removing earth from the drain, when Basanta Ram protested for removing earth from the drain Roshan Lal accused gave a lathi blow on his head. When Dharam Pal PW came forward, Jaipal accused gave a lathi blow on his head and thereafter Ram Sarup accused gave two lathi blows on the head of Gurnam Singh. Baljit Kumar caused lathi injury on the head of Mukhtiar Kaur. Naranjan Singh and Narinder Singh were attracted to the spot on hearing the alarm raised by the injured persons and they rescued them and they also caused some fist blows to the accused party in selfdefence. Basanta Ram deceased and the injured persons were removed to the Primary Health Centre Mullana where Dr. Shiv Anand medically examined them and found the following injuries on their persons :

Basanta Ram

A lacerated wound 8 cm x 2 cm. on the left side of skull situated longitudinally on the left side of skull 2 cm away from the midline of skull on its anterior aspect. Wound was bleeding profusely. Depth of wound could not be ascertained. Clotted blood was present around the wound oedema face. Bleeding from the mouth and nose. Advised xray of skull. General condition. Unconscious. Pulse 104 per minute regular.

Gurnam Singh

There was a scar mark of 6 cm. x 2 cm x 11/2 cm. on the right side of skull in its middle 1 cm. away from the midline. Margins of the wound were contused.

Scar mark 3 cm. x 11/2 cm. x 1 cm. on the right side of skull 3 cm. away from injury No. 1. Margins of the wound were contused. Advised xray of skull.

Complained of pain on left side of back of chest.

Mukhtiar Kaur

A lacerated wound 4 cm x 2 cm x 1 cm. on the right side of skull situated longitudinally 2 cm. away from the midline of skull on the posterior, surface of frontal bone Margins of the wound were contused.

A contusion mark 6 cm x 2 cm. on the anterior surface of left thigh in its middle. Movements of left thigh were normal.

Dharam Pal

A lacerated wound 6 cm x 2 cm x 11/2 cm on the left side of skull on the parietal region in its middle, 2 cm. away from midline of skull lying longitudinally. Margins of the wound were contused. Advised xray of the skull.

Dr. Shiv Anand medically examined Puran Chand accused at 9 a.m. on 27th January, 1983 and found his upper jaw right incisor missing from its place. He also examined Ram Sarup and Roshan Lal accused and found the following injuries on their persons.

Ram Sarup

Contusion mark 4 cm. x 2 cm. on the anterior lateral surface of left leg in its middle. Movements were normal.

Contusion mark 2 cm x 11/2 cm. on the anterior surface of right side of chest in its lower onethird corresponding to 8th and 9th rib. Movements were painful. The patient was advised xray of his chest and he was referred to Civil Hospital, Ambala for Xray.

Roshan Lal

A contusion mark 6 cm. x 3 cm. on the superior surface of right shoulder joint in its medial 1/3rd.

A contusion mark 4 cm x 2 cm on the superior surface of right shoulder joint in its lateral 1/3rd. Movements of shoulder joint were painful. Advised Xray of right shoulder joint.

Contusion mark 4 cm x 11/2 cm. on the anterior surface of left thigh in its middle; movements of left thigh normal.

Complained of pain in right hypochondria region bowel sound positive. No mark of injury on right side.

The condition of Basanta Ram deceased being precarious, Dr. Shiv Anand referred him to Civil Hospital, Ambala City for xray and better treatment. Dr. Manju Mittal, Medical Officer, Civil Hospital, Ambala City, examined Basanta Ram and referred him to the P.G.I., Chandigarh. Basanta Ram died on January 27, 1983 at 4.25 p.m. On receipt of intimation, Exhibit P.D., from Dr. Shiv Anand on January 26, 1983, SubInspector Chandgi Ram, P.W. 12, went to the Primary Health Centre, Mullana to record the statement of Basanta Ram but he was unfit to make a statement. He, therefore, recorded the statement of Dharam Pal and that formed the basis of the formal First Information Report, Exhibit P.S./2. Thereafter, the SubInspector went to the place of occurrence, reaching there at about 5.30 p.m., and prepared its visual plan, Exhibit P. BB. The accused were arrested on 27th January, 1983. Joginder Singh SubInspector held inquest, Exhibit P.G. and sent the dead body to the mortuary for autopsy. Dr. Pardeep Sharma, PW 5, conducted autopsy on the dead body of Basanta Ram on 29th January, 1983, at 10 a.m. and found the following injuries :

Stitched operation wound on the left side of skull. It was of inverted Ushape in the frontal, temporal and parietal region.

Both the eyelids were swollen, blue and closed.

A part of the left frontal and temporal bone was removed during operation and fracture of the left frontal and varietal bone was noticed.

Large subdural haematoma was present.

Haematoma at the base of skull.

Laceration and oedema of brain on left side. Death was opined to be due to shock and hamorrhage as a result of injuries to the vital organs which were sufficient to cause death in the ordinary course or nature. The accused were challaned and committed.

The eyewitness account consists of Dharam Pal PW 8, Gurnam Singh PW 9 and Mukhtiar Kaur PW 10, SubInspector Chandgi Ram PW 12 and SubInspector Ram Kishan PW 13 are the investigating officers. The rest of the prosecution evidence is more or less of formal nature, a part of which has been tendered by way of affidavits of police officials.

Puran Chand appellant in his statement u/s 313 Cr.P.C. while denying the material prosecution allegations pleaded that the drain existed in front of their house since the time immemorial and they used to pass rainy water of their houses through it. What is significant, however, is that he took up a positive stand on a plea or the private defence of body and property in the following terms :

"The occurrence did not take place in the manner as put forth by the prosecution. In fact, the drain in front of our house is there since the time immemorial and we used to pass the rainy as well as dirty water of our houses through it. The complainant party also used to pass their water through that drain, which further joins in the main drain in the pucca street. On the day of occurrence, the complainant party in order to block the gali as well as the drain had collected some pacca bricks and had placed earth on the drain which used to pass in front of our houses in order to convert that gali into a bar for themselves.

As there was rain and water had collected in front of our houses due to the blockade of the drain and there was danger to our houses of failling down and in fact the water had entered our courtyard, we asked the complainant party to remove the earth as well as the bricks but they did not agree. I collected a Panchayat in which Sumer Chand was present. The complainant party also attended that Panchayat, and on the intervention of Sumer Chand Sarpanch, the complainant party agreed to remove that earth. After the Panchayat, myself and my son Ram Sarup came to the spot and removed the earth and bricks in order to allow the flow of water which had collected there. The complainant party consisting of Basanta Ram, Gurnam Singh, Dharam Pal & Gurnam Singh''s wife came there armed with lathis from their houses and gave me lathi blows. On my alarm and that of my son Ram Sarup, Roshan Lal also came there. There was grappling between both the parties and as a result of that my son and myself gave them pushes upon which Basanta Ram and his associates fell on the bricks on the ground. They might have received some injuries during scuffle and also by a fall. The PWs caused injuries with lathis to my sons Roshan Lal and Ram Sarup and to me also.

My one tooth was also dislocated on account of thrust of a lathi by the complainant party. Myself and my son then went to the police station to lodge a report where we were detained and thereafter the police got us medically examined. The police did not register any case against the complainant party and in collusion with the complainant party falsely involved me and my four sons.

Jaipal and Baljit were not present at the time the occurrence took place. Daljit had gone to the Higher Secondary School Kesari to appear in some private paper on that day. We have been falsely implicated in this case and in fact the complainant party was aggressor. Ram Sarup, Jai Pal and Roshan Lal pleaded false implication in the case. Randhir Singh and Sumer Chand were examined in defence.

It is plain from the above that the two well match rival versions vie for acceptance in this case. Fortunately, for the appellants, the medical testimony and the independent circumstantial factors seem to believe the version set up by the prosecution and to tilt the case entirely in favour of the forthright plea of private defence of their persons and property, taken up by the appellants. On the prosecution version, the appellants were the aggressors, who having armed themselves with lathis had launched a premeditated and designed attack on the unwary Basanta Ram deceased and at the PWs Gurnam Singh, Mukhtiar Kaur and Dharam Pal. Now what is significant here is that on the side of the accused party, Ram Sarup, Puran Chand and Roshan Lal had sustained as many as 7 injuries on their persons. Dr. Shiv Anand, PW. 7, who medically examined them on January 27, 1983, at about 9 A.M. had opined that their injuries could have been caused with a blunt weapon within a duration of 24 hours. Injury No. 2 on the person of Ram Sarup accused was on his chest while the other injuries on his person and on the persons of Roshan Lal and Puran Chand were, however, sustained on the nonvital parts of their bodies. The prosecution does not have any rational explanation for these injuries. On the contrary version pleaded by the defence regarding the occurrence appears to be rational and more probable. The view of the trial Court that all the injuries sustained by the said appellants were simple or are of insignificant nature, does not appear to us tenable and particularly when the medicolegal examination itself discloses that Ram Sarup had sustained an injury on his chest. The nature and number of injuries on the persons of the accused party probabilities the assumption that the complainant party was more than duly prepared to meet half way their adversary. It follows, therefore, that the 7 injuries on the persons of the accused party were caused by the complainant party before the latter were attacked by the accused party. If that be so, it appears to be the only result on the probabilities of the case, that an unerring feeling is pointed at the complainant party being the aggressor who had caused as many as 7 injuries to the accused party.

In appreciating the ocular account in the present case, the salient factor to be borne in mind is the fact of the admitted hostility between the complainant party on the one side and the appellants regarding the blockade of water in the drain coming from the side of the house of the accused party. It deserves highlighting that both the parties are related inter se but they had bitter enmity with each other because of the said dispute. Their testimony in a closely matched version, where it has to be determined as to who is the aggressor, can indeed carry the least weight. It would be indeed asking for the impossible that the close relations of the deceased and the bitter enemies of the appellants could depose regarding the truth on the point as to which of the two parties was the aggressor.

This apart the curious thing is that this incident is stated to have been witnessed by Narinder Singh and Naranjan Singh, but they have not been examined by the prosecution. They, were quite independent and disinterested witnesses. There is always a duty cast on the prosecution to examine the material witnesses who unravel the prosecution story. If the material witnesses are deliberately and unfairly withheld then serious reflection is cast on the propriety of the trial. Nonproduction of these eyewitnesses also raises an adverse inference against the aforesaid background that the belated and if we may say so, the suspicious manner of recording the first information report in the present case, assumes a great significance. The occurrence took place at about 10 a.m. on 2611983 whereas the first information report was recorded at 2.20 p.m. at the Police Station Mullana, which is at a distance of about 15 km. from the place of occurrence. None of the alleged eyewitnesses made any attempt to lodge the report with the police. This circumstance, in our opinion, also raises a considerable doubt regarding the veracity of the evidence of the alleged eyewitnesses.

As noticed earlier in a case of the present kind where two rival and well matched versions are before the Court, suspiciousness of the prosecution version appears to us as a near fatal infirmity in this case. For the reasons recorded above, it appears to us that the appellants have been able to sustain their forthright plea of the right of private defence of property and person in inflicting the fatal injuries to Basanta Ram deceased and some minor injuries on the prosecution witnesses. Their convictions and sentences on the charge of murder and other ancillary offence, therefore, cannot be sustained and are hereby set aside. Both the appeals are allowed.