State of Haryana vs Badri Parshad

V.K. Bali, J.

Whereas State of Haryana in Crl. appeal No. 116DBA of 1993 preferred by it against the judgment recorded by learned Sessions Judge, Bhiwani, dated October 28, 1992, acquitting all the accusedrespondents, seeks setting aside of the impugned judgment thereby holding the accused guilty of the offences for which charges were framed against them, Chand Ram complainant of the case has filed Crl. Revision No. 175 of 1993 for the same purpose. We, thus, propose to dispose of both criminal appeal and revision by this common order.

All the accused, who were tried for having committed offences under Sections 148/302/149/324/323/34 IPC were acquitted.

Rameshwar son of Nand Lal died on July 17, 1991 at about 6/7 p.m. at village Kari Tokha, Police Station Badhra. The incident leading to death of Rameshwar was reported by Chand Ram son of Nand Lal, PW 6, who was himself injured in the same incident. His statement was recorded by PW 8 Jai Singh, ASI of Police Station Badhra in General Hospital, Bhiwani at 3.20 p.m. on July 18, 1991 and the FIR, Ex. PO/2 was received by the concerned Magistrate at Dadri at 11.30 Noon through Harphul Singh, Constable. Chand Ram stated before the police that he was resident of village Kari Tokha and was doing cultivation. On July 17, 1991 at about 6/7 p.m. his brother Ram Kumar was bringing his buffalo back after showing her water at the well outside. House of Ram Sarup son of Gopal Jat and their house were situated in front of each other and Nohra of Badri Parshad was also situated in front. She camel of Badri Parshad sitting on the way in the street was grazing fodder and the buffalo of Ram Kumar started grazing fodder from the same manger. At that, Badri Parshad asked Ram Kumar as to why he allowed his buffalo to put her mouth in the fodder, of his shecamel and that why he did not bring her by holding her string. At this, Ram Kumar replied that since it was an animal, if she had put her mouth, he should not mind. Thereupon, Badri Parshad while abusing Ram Kumar went away towards his Nohra and brought a Rapari there from and immediately on his arrival he (Badri Parshad) gave a Rapari blow to Ram Kumar in his head towards the frontal aspect of his forehead. Ram Kumar raised an alarm of "Maar Dia, Maar Dia" (killed), whereupon he along with his brother Rameshwar and mother Mira Devi, who were standing in the street at a distance of 200 paces also came there. On the noise raised by Badri Parshad, Bijender son of Badri, armed with Jaili, Jai Kumar son of Badri, armed with Jaili, Vinod Kumar son of Badri, armed with Kulhara, Ram Sarup son of Gopal, armed with Lathi, Ishwar Singh son of Ram Sarup, armed with Rapara, Umed Singh son of Ram Sarup, armed with Lathi and Sada Nand son of Ram Sarup armed with Jaili came from their respective houses and immediately on his arrival, Ishwar gave him a Rapara blow in his head towards the left. On receipt of Rapara blow, he fell down on the ground. As he was lying fallen, Jai Kumar gave him three Lathi wise Jaili blows with Jaili on his back towards the right and on his right hand. Bijender gave a Lathi wise Jaili blow on his right hand. Then Bijender gave a Lathi wise Jaili blow on the fingers of his left hand. Ishwar gave a Rapara blow to his mother Mira Devi on the frontal aspect of her head towards the left. Ram Sarup gave a lathi blow to his mother on her forehead towards frontal aspect. Badri gave a Rapara blow to his brother Rameshwar on his head towards the left, as a sequel whereof he fell down. While he was lying fallen, Sada Nand gave one jaili blow in his waist towards left and one on his right hand. Umed gave a lathi blow to his brother Rameshwar on his right eye. Ishwar gave a Rapara blow to Ram Kumar in his head towards right and two Rapara blows in the head towards left. Jai Kumar gave one Lathi wise Jaili blow in his head towards frontal aspect of forehead. Vinod gave a Kulhara blow from its reverse side to Ram Kumar on his right hand. Thereupon, he raised an alarm of ''Maar Dia, Maar Dia'' (killed). On hearing their alarm, Balbir son of Partap Jai, Rama Nand son of Ganga Ram Khati, residents of village Kari Tokha came there and witnessed the occurrence from a short distance. On seeing them approaching, all the assailants ran away towards their respective houses along with their respective weapons. Chand Ram further stated that having connived with one another, all the aforesaid persons had caused them injuries with an intention to kill them. He came to Civil Hospital, Bhiwani for treatment where he got himself medico legally examined.

The prosecution, with a view to bring home the offence against all the accused, but for Vinod, who was a juvenile offender and was not tried along with other accused, examined PW 2 Dr. S.K. Anand, Medical Officer, General Hospital, Bhiwani. He found following injuries on the person of Chand Ram :

"1. L shaped incised wound 5 cm x .5 cm x bone deep upon the left parietal region. Fresh blood was present and that was 2 cms away from the left external pinna, tailing was also present. Advised xray skull and surgeon''s opinion.

Lacerated wound 1.5 x .2 cms upon the digital part of right middle finger.

Abraded skin upon the dorsal and middle of the right forehead.

Abraded skin circular in shape 0.5 cm in diameter upon the left forearm.

Elongated contusion reddish in colour with abraded skin in the middle of the chest right side back measuring 6 cm x 1 cm particularly on the scapular region. Advised xray.

Elongated abraded skin with contusion upon the right scapular region. Advised xray.

All the injuries on the person of Chand Ram were found to be simple in nature.

This very doctor also examined Rameshwar and found following injuries on his person :

"1. Incised wound 7 cm x 1 cm x bone deep upon the left parietal region of the skull which was 8 cms above the left external pinna and fresh bleeding was also present. Tailing was also present. Advised xray skull, AP and lateral view and surgeon''s opinion was also advised.

There was swelling on upper left eye lid with contusion bluish in colour. Eye Surgeon''s opinion was sought.

Rounded swelling 2 cm in diameter upon the middle of the right forearm, tenderness was present. Advised xray right forearm.

Enlogated swelling 1 cm in diameter upon the right lower back of the chest (right)".

Injuries 1 to 3 on the person of Rameshwar were kept under observation whereas injury No. 4 was declared to be simple in nature.

On the same day, this doctor had also medicolegally examined Ram Kumar and had found following injuries on his person :

"1. Incised wound 4 cm x .5 cm x bone deep upon the right parietal region of the skull which was 12 cms above the right external pinna and there was tailing also present. Advised xray of skull, AP and right lateral and surgeon''s opinion.

Incised wound 3 cm x .5 cm x bone deep upon the fronto parietal region of the skull of the right which was 14 cms above and front of external pinna right. Advised xray skull.

Incised wound 3 cm x .5 cm x bone deep which was 1.5 cm above the injury No. 2. Advised xray skull and surgeon''s opinion.

Incised wound 4 cm x .5 cm x bone deep which was 14 cms away from the left external pinna. Advised xray skull.

Lacerated wound 2.5 cm x 1 cm x bone deep which was 5 cms above the bridge of the nose. Fresh blood was present. Advised xray.

Lacerated wound 1.5 cm x .5 cm upon the lower end of right forearm, tenderness was present. Advised xray for right forearm."

All the injuries were declared simple in nature.

This doctor also examined Mota Devi wife of Nand Lal and found following injuries on her person :

"1. Incised wound 4.5 cm x 1 cm x bone deep upon the left parietal region of the skull which was 6 cms away from left external pinna, tailing and fresh blood was present. Advised xray skull, AP and left lateral and surgeon''s opinion.

Lacerated wound 3 cm x .5 cm on the middle of the forehead and fresh blood was present. Advised xray skull."

These injuries were also declared simple in nature.

As Rameshwar had later died, Dr. D.S. Chaudhary, who had conducted post mortem on his dead body, was examined as PW 3. The doctor, after describing the injuries that he found on the dead body of Rameshwar, stated that in his opinion all the injuries were antemortem in nature and the cause of death was due to shock and haemorrhage due to injury No. 1 which, in ordinary course, was sufficient to cause death. Probable duration between injuries and death was within few hours and between death and post mortem within 24 hours.

Inasmuch as the occurrence is admitted by the accused and they have taken the plea of selfdefence, there is no need to refer to other evidence but for to say that Chand Ram was examined as PW 6 and, as mentioned above, he was injured himself also, whereas Ram Kumar brother of Chand Ram, was examined as PW 7. Mota Devi, mother of Chand Ram, even though injured, was not examined. It may also be mentioned here at this stage itself that even though the first informant had stuck to his version with regard to motive as given by him in the FIR, he introduced for the first time in the Court yet another motive by stating that Ram Sarup and Badri accused used to cultivate the land of Banwari Brahmin. Their house and that of accused were in the same street. Their Nauhras and that of accused were also situated in the same street. Banwari was resident of village Tingrana and he had filed a suit against accused Ram Sarup and Ramji Lal for getting back his land. On his visit to village, said Banwari used to sit and take meals with them, and because of this reason accused party was not on speaking terms with him.

When examined under Section 313 Cr.P.C., accused Badri and Varinder stated that the prosecution witnesses duly armed with weapons attacked them and caused injuries and in selfdefence they caused injuries to the complainant party and that they had been implicated in the present case in collusion with the police. Ram Sarup, Jai Kumar, Umed Singh, Sada Ram and Ishwar denied their presence in the village at the time of occurrence.

Accused led evidence in defence. DW 1 Dr. Suman stated that on July 18, 1991 while posted at CHC, Gopi, he medicolegally examined Badri at 12.15 a.m. and found following injuries on his person.

"1. Lacerated wound on right parietal region 11/2" x 1/4 x 1/4 cm with swelling around it. It bleeded on cleaning.

There was a bruise on right frontal region and a reddish blue in colour measuring 3 x 11/2 cms with swelling around it.

There was an abrasion on left frontoparietal region measuring 6 x 1/4 cm.

There was a reddish bruise on right elbow region. It was obliquely placed on lateral side 6 cm x 2 cm. Movements at the joint (eblow) were normal).

There was an abrasion on abdominal wall on left side, measuring 11/2 x 1 cm.

There was an abrasion on abdominal wall on left side, 4 cm below and lateral to injury No. 5 measuring 2 x 1/4 cm.

Injuries 3, 4, 5 and 6 were declared simple in nature while rest were referred to General Hospital, Dadri for xray and surgeon''s opinion. All the injuries were caused with blunt weapon within a duration of six hours.

On the same day, he also examined Hoshiar Singh and found following injuries on his person :

"1. There was an lacerated wound, lateral to right side, 1 x 1/4 x 1/4 cms. It was bleeding on cleaning and clotted blood was present around it. Conjectiva of right eye was not congested. Swelling around the wound was present which was diffused in nature.

There was an abrasion on right thumb posterior surface measuring 1 cm x 1/4 cm with swelling at distal interphalangeal joint. Patient complained of pain.

Both the injuries were referred for Xray and Surgeon''s opinion. These were caused by blunt weapon and within duration of six hours.

On the same day, he had also examined Virender accused and found following injuries on his person :

"1. Abrasion was there in the left lumber region posteriorly and obliquely placed near mid line, measuring 6 x 1 cms.

There was an abrasion in the left lumber region posteriorly and obliquely placed 7 cms below and lateral to injury No. 1, measuring 5 x 1 cm".

Both the injuries were caused within a duration of six hours with blunt weapon and were declared simple in nature.

We have heard Mr. Varinder Singh, learned DAG, Haryana assisted by Mr. H.S. Gill, Senior Advocate representing the complainant and Shri R.S. Ghai, Sr. Advocate representing the accused and with their assistance, gone through the records of the case. We are, however, of the opinion that the learned Sessions Judge, on the basis of evidence led by the prosecution, came to a right conclusion while acquitting all the accused and, therefore, there is absolutely no merit in the appeal and the revision preferred by the State and complainant respectively. It may be noticed at the very outset that to start with, i.e., when the FIR was lodged, the motive suggested to the accused was something which happened immediately preceding the occurrence and it was stated by PW 6 Chand Ram that shecamel of Badri sitting on the way in the street was grazing fodder and buffalo of Ram Kumar started grazing fodder from the same manger and at that Badri asked Ram Kumar as to why he allowed his buffalo to put her mouth in the fodder of his shecamel and that why he did not bring her by holding her string. At this Ram Kumar replied that since it was an animal, he should not mind it. Thereupon, Badri, while abusing, went towards his Nohra and brought a Rapari. The other persons were attracted at the scene of occurrence afterwards. Had the prosecution stuck to this story alone and not endeavoured to magnify the guilt of the accused, it is certain that even if the prosecution was able to prove its case, provisions of Section 149 IPC would have not been attracted at all. With a view, however, to pin down all the accused for the offence of murder with the aid of Section 149 IPC, an entirely new story, for which not an iota of evidence was produced, was introduced. It was suggested for the first time when injured witness (PW 6) appeared in the Court that they were helping one Banwari in civil litigation against the accused and for that reason the accused nourished a grudge against them. It could not be disputed during the course of arguments that by introducing this motive alone, the prosecution could secure conviction of all the accused under Section 302 read with Section 149 IPC. It is, thus, certain that PWs 6 and 7 are highly interested in securing conviction of the accused even for an offence which they have not committed. Their statements have to be read in this background. If so seen, nonexplanation, on the part of the prosecution, of the injuries sustained by the accused and which injuries have been rightly held by the Sessions Judge to be neither self inflicted nor caused by friendly hands, goes a long way to show that genesis of the occurrence is shrouded in mystery and that PWs 6 and 7 have not come up with a correct version leading to death of Rameshwar. It is not disputed that the prosecution did not at all explain the injuries sustained by the accused. All that has been argued by learned State counsel is that such injuries could have been caused in a kind of scuffle that had ensued between the parties and, therefore, it was not necessary to explain the injuries sustained by the accused. We are afraid the injuries suffered by three accused could have not been caused only on account of scuffle and by all means, the complainant had also attacked and caused injuries to the accused. It further requires to be highlightened that all male members of the family of accused were involved in this case. Only those, who were in Army and were admittedly not residing in the village, were spared. The occurrence had taken place at 67 p.m. on July 17, 1991. Police Station is only 9 kms. away from the village where the occurrence had taken place and yet FIR came to be recorded the next day at 5.15 a.m., special report whereof reached the concerned Magistrate at 11.30 noon. The prosecution witnesses, in our view, utilised the time in consultation with a view to rope as many persons as possible from the side of the accused. That apart, the only two independent witnesses, namely, Balbir and Rama Nand who were not associated with any of the parties, i.e., either the complainant or the accused, were not examined. It was not even stated by the Public Prosecutor that these witnesses were not being examined as they had been won over by the accused. No explanation worth the name was given as to why these independent witnesses were not being examined. The learned Sessions Judge, in our view, was right in entertaining a doubt with regard to veracity of the prosecution witnesses. That being so, we find no merit in the appeal and the revision and dismiss the same.