State of Haryana vs Hari Singh and others

M.L. Koul, J.

An acquittal appeal preferred by the State was dismissed by this Court on 25.3.1985 and the Apex Court on Special Leave petition set aside that order saying that this Court ought to have given reasons for coming to the conclusion that it did not see any merit in the State appeal and directed that it be disposed of in accordance with law on merits. On this order of the Apex Court, the present appeal was admitted by this Court, on 26.11.1990 and not it has come up for hearing on merits before us.

Heard Mr. S.N. Gour, Deputy Advocate General, Haryana for the State and bestowed our thoughtful consideration over the record on the file, Nobody appeared for the accusedrespondents although Mr. R.S. Mann, Advocate is recorded as counsel on behalf of the accusedrespondents in the case.

This acquittal appeal moved by the State against all the eight respondentsaccused residents of village Manuwas Tehsil Nuh, owes its origin to Ex. PR recorded by Arjun Singh, Sub Inspector, Police Station Nuh, at 9.45 a.m. on 21.3.1983 on the statement of PW 9 Smt. Prem. She stated that on that date at 6 a.m., she was going to her Gitwar with a basket of cow dung on her head. While she passed some steps ahead of the house of Fateh Ram accused, the accused Mahinder, Mool Chand and Bharat Singh came there armed with lathis. Accused Mahinder gave a Lathi blow on the cow dung basket over her head as a result of which the same fell down. Thereafter the accused Mahinder caused a Lathi blow on her head and she fell down. All the three said accused thereafter inflicted Lathi blows over her body in a fallen state and she received injuries on her legs and hands. She raised an alarm which attracted Susheela PW 10, her Devrani and Smt. Manni PW 11 motherinlaw on the spot. The said accused gave Lathi blows to them as well. These two ladies also raised their voice which attracted Deep Chand PW 8 and Het Ram (not examined) to the venue of occurrence who saved these ladies from the clutches of the accused. Thereafter accused Fateh Ram, Khem Chand, Roop Chand, Mangal and Hari Singh also reached the spot and each of them was holding a Lathi in their hands. The accused Fateh Ram administered a Lathi blow on deceased Tara Chand''s head and Hari Singh caused a Lathi blow on his forehead. Mangal accused gave a Lathi blow on his left eye and Khem Chand accused administered a Lathi blow on his left elbow. On this PW 5 Parma Nand and PW 6 Roshan tried to save the deceased Tara Chand but Fateh Ram accused caused a Lathi blow on Parma Nand''s head and Hari Singh accused gave a Lathi blow on Roshan''s head. Thereafter Khem Chand and Roop Chand accused continued giving Lathi blows to Parma Nand indiscriminately who warded off the same by taking these on his hands. In the meanwhile PW 6 Roshan got a Lathi from his Baithak and went on warding off the blows on his Lathi. The said Roshan also caused a blow on accused Fateh Ram in self defence. The accused then left the venue of occurrence with their respective weapons.

All the injured were medically examined and Tara Chand deceased who initially was alive died afterwards as a result of injuries sustained by him on his person. On completion of investigation, all the accused were challaned before a competent Court of law.

The learned trial Court on trial of the accused after discussing it threadbare and hearing the counsel for the parties gave a benefit of doubt to the accused and they were acquitted. Aggrieved of the said judgment and order of acquittal the present appeal has been preferred by the State.

In nutshell the case set out by the prosecution is that Smt. Prem PW 9 was initially in a manner waylaid by the accused Mahinder, Mool Chand and Bharat Singh when each of them was holding a Lathi in their hands. The accused Mahinder gave a Lathi blow on the cow dung basket held by the witness on her head which as a consequence of that fell down. Her noise attracted PW 10 Susheella and Smt. Manni PW 11 her Devrani and motherinlaw on the spot who were also beaten by the accused. They were saved by PW Deep Chand and one Het Ram (not examined as a witness). According to this witness, Parma Nand PW 5 her brotherinlaw and brother of the deceased Tara Chand along with Roshan PW 6 witnessed the occurrence with their eyes. However, it is strange that three ladies of the family were being beaten up by the accused and Parma Nand PW 5 remained a silent spectator on the spot. He in no manner intervened and did not try to save the ladies of his house. He and PW 6 Roshan became active only and were attracted on the spot when the accused conducted murderous attack on the deceased. It has come in the evidence of the said witness that he was standing outside his house in the company of his deceased brother Tara Chand but did not fetch any Lathi from his house for rescuing the ladies from the clutches of the accused. In fact the natural course of events demanded that he should have rushed on the spot where his mother, wife and Bhabi were being beaten by the accused ruthlessly and could save them even by taking a Lathi in his hands in self defence and paid the accused in the same coin. Instead he remained a silent spectator on the spot and did not in any manner interfere in the incident which shows that the witness was not present on the spot or it was not the accusedparty who were the assailants. Rather the complainant party were the assailants in the matter and in a joint fight one man out of the two parties got killed in the incident and others received injuries.

PW 6 Roshan could not say as to whom the accused Mahinder caused injuries with a Lathi. Again he failed to say as to whom the accused Bharat Singh and Mool Chand beat with the lathis. He does not bear any eyewitness account of the beating caused to his mother, wife Susheela, his brother Parma Nand, Bhabi Prem and Tara Chand deceased. The incident consisted of three parts and he does not know as to in which incident his brother Tara Chand was killed. According to him Deep Chand and Het Ram were not present at the spot when he came out. He did not see the ladies before the occurrence in his house and does not know when they came out from the house. He did not raise any alarm and could not say whether the said ladies of his house had left one by one or together.

PW 3 Deep Chand who is an eyewitness to the occurrence did not say whether Parma Nand PW 5, Tara Chand deceased or Roshan PW 6 also witnessed the occurrence by standing on the Chabutra. In the same manner PW 9 Prem has stated that she could not say as to who out of the accused inflicted Lathi blows on the persons of Susheela PW 10 and Manni PW 11 and on which part of the body they were hit by such blows. In the same manner PW 10 Susheela has stated that she does not know as to how many blows were administered to Prem in her presence. It has come in the evidence of PW 11 Manni that her three sons Tara Chand deceased, PW 5 Parma Nand and PW 6 Roshan were standing on the Chabutra and the distance between their Chabutra and the place of occurrence was only seven steps.

The bone of contention on which the occurrence has taken place is that the accused had placed the thorny bushes on a passage and the dispute about it was going on for several years. There is no evidence that PW 9 Prem had either used foul language against the accused or committed any covert or overt act with regard to the removal of thorny bushes from the passage which annoyed the accused and so they started to beat her. There is no evidence that there was any immediate motive or cause of action for the accused to commit the crime.

The recovery of the basket has not been made and no explanation has been given by the prosecution as to why they were unable to recover the said basket. Was it destroyed by the accused or taken away by the lady who was holding it when the occurrence took place ? The prosecution has tried to bring forth a story that the thorny bushes were being tried to be removed for which the ladies were belaboured by the accused but there is no cogent or corroborative evidence to prove this fact that the incident took place for the bushes were being removed by the complainant and the accused got a chance to commit the crime. The whole of the case is placed in such a mess that there is confusion about the whole story. One is unable to understand as to whether the complainant party was the assailant or the accused party were the assailants in the incident. As earlier stated it appears that a free fight had taken place between the parties in which one of the men was killed.

It is in the evidence proved by the doctor that Fateh Ram accused was seriously injured in the incident and had timely medical aid not been provided to him, some of the injuries sustained by him in the incident were sufficient to cause his death in the ordinary course of nature. It was the duty of the prosecution to prove that how Fateh Ram accused sustained such serious injuries when it is the admitted case of the prosecution that he participated in the occurrence and in selfdefence was given injuries by one of the witnesses in the incident. It establishes the fact that there had been a joint fight between the parties and once one of the people belonging to the complainant party got killed, the Investigating Officer for the reasons best known to him did not try to register a case against the complainant party as well for having attempted to commit the murder of Fateh Ram accused or both the parties who participated in the incident be bracketed together as accused in the incident and on investigation and trial, it could be found as to who were the assailants and who were the victims.

The learned Sessions Judge after discussing all the aspects of the case has rightly come to the conclusion that there is full of confusion and chaos made by the police in the conduct of the investigation as a result of which there was no alternative except to give benefit of doubt to the accused who have therefore been correctly acquitted. No doubt it is the duty of the Court to separate the grain from the chaff but in the instant case grain and the chaff were so much intermingled by the police for the reasons best known to them that it could not be separated, rather the grain got destroyed in the chaff itself. In such circumstances of the case we are of the considered view that the prosecution has not been able to prove anything against the accused and the appeal filed by the State is dismissed.