Partly allowed

Subhash Chand v. State of Hry. and Anr.

Punjab & Haryana HC16 Jan 2009CRR/437/2006

Case brief

AI extract

What is this about?

High Court allowed appeals based on false implication and acquitted six accused of charges including murder. Court upheld conviction of two main accused for murder but removed Section 149 conviction, substituting Section 34. Dismissed revision against acquittal of another accused.

What did the court decide?

Six appellants acquitted; two appellants convicted of murder under Section 302/34 IPC and acquitted of Section 149/307/323 read with Section 149 IPC; revision petition dismissed.

Subhash Chand Vs State of Hry. and Anr. — Quashing and FIR | Punjab & Haryana HC (2009)

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Criminal Appeal No. 47-DB of 2006 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Appeal No. 47-DB of 2006 Dated of Decision: 16.01.2009

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Dharamjit Singh son of Singh Ram, aged 32 years, r/o Village Dhanaura Jattan, Distt. Kurukshetra.

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... Appellant

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Versus

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State of Haryana.

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...Respondent

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Criminal Appeal No. 52-DB of 2006 Dated of Decision: 16.01.2009

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1. Ramesh Kumar son of Karta Ram, resident of Village Dhanora Jattan, District Kurukshetra.

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2. Sudesh Kumar son of Karta Ram, resident of Village Dhanora Jattan, District Kurukshetra.

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... Appellants

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Versus

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The State of Haryana.

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....Respondent

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Criminal Appeal No. 47-DB of 2006 Criminal Appeal No. 52-DB of 2006 Criminal Appeal No. 879-DB of 2005 Criminal Revision No. 437 of 2006

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Criminal Appeal No. 879-DB of 2005 Dated of Decision: 16.01.2009

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1. Babu Ram son of Molu Ram aged 51 years, labourer,

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2. Shiv Ram son of Molu Ram, aged 45 years, labourer, 3. Raj Kumar so of Babu Ram, aged 28 years, labourer,

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4. Rajesh Kumar son of Som Nath, aged 24 years, labourer,

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5. Ashok Kumar son of Chandgi Ram, aged 24 years labourer, All residents of Village Dhanora Jattan, District Kurukshetra.

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....Appellants

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Versus

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The State of Haryana.

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...Respondent

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Criminal Revision No. 437 of 2006 Dated of Decision: 16.01.2009

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Subhash Chand son of Sh. Ajit Singh, resident of Dhanora Jattan, District Kurukshetra.

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....Petitioner

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Versus

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1. The State of Haryana.

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2. Balbir Singh son of Gainda Ram, resident of village Dhanora Jattan, District Kurukshetra.

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...Respondents

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CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER

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Present: Mr. Vinod Ghai, Advocate, for the appellants, in all the appeals.

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Mr. H.S. Sran, Additional Advocate General, Haryana, for the respondent – State, in all the appeals.

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Mr. Vikram Punia, Advocate, for the revision petitioner. Mr. H.S. Sran, Additional Advocate General, Haryana, for respondent No. 1 – State, in the revision petition, and Mr. P.S. Jammu, Advocate, for respondent No. 2, in the revision petition.

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SHAM SUNDER, J.

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This judgement shall dispose of Criminal Appeal No. 47DB of 2006, filed by Dharamjit, Criminal Appeal No. 52-DB of 2006, filed by Ramesh Kumar and Sudesh Kumar, and Criminal Appeal No. 879-DB of 2005, filed by Babu Ram, Shiv Ram, Raj Kumar, Rajesh Kumar and Ashok Kumar, accused (now appellants), against the judgement of conviction and the order of sentence, dated 11.11.2005, rendered by the Court of Sessions Judge, Kurukshetra, vide which, it convicted and sentenced them, as under, as also Criminal Revision No. 437 of 2006, filed by Subhash Chand, complainant, against the order of acquittal, dated 11.11.2005 of Balbir Singh, accused:-

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Nam (n	es of the accused ow appellants)	Of	fence for which convicted	Sentence aw	arded
	1		2	3
(i)	Ashok Kumar	(a)	Under Section 148 Indian Penal	To undergo imprisonment	rigorous for a
(ii)	Dharamjit		Code.	period of tw each.	o years
(iii)	Rajesh Kumar
(iv)	Ramesh Kumar
(v)	Sudesh Kumar
(vi)	Raj Kumar
(vii)	Babu Ram
(viii)	Shiv Ram
(i)	Ashok Kumar	(b)	Under Section 302 read with	To undergo imprisonment e	life ach and
(ii)	Dharamjit		Section 149 Indian Penal	to pay a fine 1000/- each	of Rs. and in
(iii)	Rajesh Kumar		Code.	default there further undergo	of, to rigorous
(iv)	Ramesh Kumar			imprisonment period of two	for a months
(v)	Sudesh Kumar			each.
(vi)	Raj Kumar
(vii)	Babu Ram
(viii)	Shiv Ram

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Nam (n	es of the accused ow appellants)	Of	fence for which convicted	Sentence awarded
(i) (ii)	Ashok Kumar Dharamjit	(c)	Under section 307 Indian Penal Code.	To undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs.
(iii)	Rajesh Kumar			500/- each, and in default thereof, to
(iv)	Ramesh Kumar			further undergo rigorous imprisonment for a
(v)	Sudesh Kumar			period of one month each.
(vi)	Raj Kumar
(vii)	Babu Ram
(viii)	Shiv Ram
(i)	Ashok Kumar	(d)	Under Section 323 Indian Penal	To undergo rigorous imprisonment for a
(ii)	Dharamjit		Code.	period of six months each.
(iii)	Rajesh Kumar
(iv)	Ramesh Kumar
(v)	Sudesh Kumar
(vi)	Raj Kumar
(vii)	Babu Ram
(viii)	Shiv Ram

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All the substantive sentences, were ordered to run concurrently.

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Shorn of unnecessary details, the prosecution case proceeded, in the manner, that Subhash Chand, complainant, at the relevant time, was a resident of village Dhanora Jattan, and was running a finance company, in a shop at Ladwa. Sandeep (now deceased) son of the father's sister of the complainant, had been a resident of village Kheri Jattan. He had come to village Dhanora Jattan, to see the complainant and others on 14.10.2002. Ramlila had been going on, in village Dhanora Jattan, at that time, for the last seven/eight days. On 14.10.2002, at about 10.00 PM, Subhash Chand, complainant, and Sandeep, aforesaid (now deceased), went to see Ramlila, at about 10.00 PM, at village Dhanora Jattan. Atinder Kumar son of Mehar Singh, and Vinod Kumar son of Mohinder Singh, residents of village Dhanora Jattan, were already there, watching Ramlila. Subhash Chand and Sandeep, aforesaid, seated themselves, on chairs, near Vinod Kumar and Atinder Kumar. When they were watching Ramlila, Sudesh Kumar and Ramesh Kumar, accused, came there. They claimed that they were sitting on those chairs earlier. They asked Subhash Chand and Sandeep, to get up, from those chairs. Subhash Chand and Sandeep, refused to accede to their request. Upon this, Sudesh Kumar and Ramesh Kumar, accused, started using abusive language, against Subhash Chand and Sandeep. They left that place, declaring that they

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would see them. At about 11.00 PM, on 14.10.2002, Sudesh Kumar, accused, armed with a sword, Dharamjit, Ramesh Kumar, Raj Kumar and Babu Ram, accused, armed with a lathi each, Ashok Kumar, accused, armed with a gandala, Rajesh Kumar, accused, armed with a danda, Shiv Ram, armed with a hockey stick, and Balbir Singh, accused (since acquitted), empty handed, came there. Balbir Singh, accused (since acquitted), raised an exhortation that Sandeep be taught a lesson, and done to death, for occupying the aforesaid chairs. After raising the exhortation, Balbir Singh, accused (since acquitted), took Sandeep, into his grip. Sudesh Kumar, accused, gave a blow with sword wielded by him on the head of Sandeep. Shiv Ram, accused, gave a blow with hockey stick, on the right side of the head of Sandeep. Raj Kumar, accused, gave a lathi blow, on the right flank of Sandeep. Ashok Kumar, accused, gave a blow with gandala wielded by him, on the left leg of Sandeep. Babu Ram, accused, gave a lathi blow, on the left thigh of Sandeep. Dharamjit, accused, gave a lathi blow, on the little finger of the left hand of Sandeep. Rajesh Kumar, accused, gave a danda blow, on the right leg of Sandeep and Ramesh Kumar, accused, gave a lathi blow on the right leg of Sandeep. In the meanwhile, Atinder Kumar, tried to rescue Sandeep. Shiv Ram, accused, gave a hockey stick blow, on the head of Atinder Kumar. Dharamjit, accused, gave a lathi blow, on the right arm of Atinder Kumar. The complainant

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alongwith Mehar Singh and Vinod Kumar, rescued Sandeep and Atinder Kumar, from the assailants, with a lot of difficulty. Thereafter, the assailants left the place with their respective weapons.

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Sohan Lal, a brahmin, resident of village Dhanora Jattan, took Atinder Kumar, to the Community Health Centre, Ladwa, and got him admitted there. Subhash Chand, complainant, took Sandeep, for his treatment to Jindal Hospital, Yamuna-Nagar. The doctor there immediately referred Sandeep to the Post-Graduate Institute of Medical Education and Research, Chandigarh. When he was, being taken to the aforesaid Institute, his condition became very serious, at Industrial Training Institute Chowk, Yamuna Nagar. Accordingly, Subhash Chand, complainant, brought Sandeep, injured to the Community Health Centre, Ladwa. The doctor at the Community Health Centre, Ladwa, declared Sandeep, to be dead. A written intimation PD, was sent by a doctor of the Community Health Centre, Ladwa, to the Police Station, that the dead-body of Sandeep, had been brought to that Centre. Zile Singh, Assistant Sub Inspector, alongwith other Police officials, reached the Community Health Centre, Ladwa. He found the dead-body of Sandeep, lying on a stretcher, in the hall of Community Health Centre, Ladwa. He did not find any eye-witness of the occurrence present there. After sometime, Subhash Chand, complainant, came there, and made a statement about the incident to

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Zile Singh, Assistant Sub Inspector. The statement PK was completed at about 8.10 AM on 15.10.02. Zile Singh, Assistant Sub Inspector of Police Station Ladwa, appended his, endorsement PK/1 on the same. Thereafter, the said statement was sent to the Police Station, on the basis whereof, the First Information Report PK/2, at 8.25 AM, on 15.10.2002, was registered. Special report was received by the Judicial Magistrate 1^st Class, Kurukshetra, at 10.30 AM, on 15.10.2002.

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Zile Singh, Assistant Sub Inspector, then conducted inquest proceedings, regarding the dead-body of Sandeep. Photographs of the dead-body were got taken, through a photographer. Thereafter, the dead-body of Sandeep, was brought to Lok Narain Jai Parkash Hospital, Kurukshetra, for the purpose of post-mortem examination. Dr. Subhash Grover, a member of the Medical Board, conducted the post-mortem examination, on the dead-body of Sandeep. The other member of the board was Dr. C.R. Khatri. After the post-mortem examination was over, the clothes worn by the deceased, were handed over to Zile Singh, Assistant Sub Inspector, in the shape of a sealed parcel. The parcel of clothes, aforesaid, was taken into possession, vide separate recovery memo. Thereafter, the dead-body was handed over to the family members of the deceased for cremation.

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Thereafter, Zile Singh, Assistant Sub Inspector, went to the place of occurrence, and inspected the same. He prepared the rough site

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plan of the place of occurrence. On reaching the Police Station, the sealed parcel of the clothes of the deceased, aforesaid, was handed over to Moharrir Head Constable, by Zile Singh, Assistant Sub Inspector. Zile Singh, Assistant Sub Inspector, then searched the accused. He arrested Shiv Ram, Babu Ram, Ramesh Kumar, Dharamjit, Raj Kumar and Sudesh Kumar, accused, on 18.10.2002. The statement of Atinder Kumar, injured, at Community Health Centre, Ladwa, was recorded, by Zile Singh, Assistant Sub Inspector, on 19.10.2002, after obtaining the opinion of the doctor, regarding his fitness.

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On 22.10.2002, Rajesh Kumar, accused, was arrested from his house. He was interrogated on 23.10.2002. He disclosed that he was given all the weapons, except the weapon of Ashok Kumar, and he concealed the same in the field of Gurmel Singh, of which, he only knew and could get the same recovered, by pointing out. His disclosure statement was recorded, which was signed by him, and attested by Subhash Chand, complainant, and Ranzor Singh, Head Constable. Thereafter, he took the Police party to the pre-disclosed place and got the weapons recovered. The weapons were converted into parcels, duly sealed with the seal bearing impression 'ZS' and taken into possession vide recovery memo. The rough site plan of the place of recovery was prepared. The statements of witnesses were recorded.

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On 24.10.2002, Ashok Kumar, accused, was produced

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before Zile Singh, Assistant Sub Inspector, by one Mohinder Singh (Ashok Kumar's father-in-law), resident of Ramkundi Chowk, Ladwa. Ashok Kumar, accused, was arrested. He was interrogated. He disclosed that he had concealed a gandala, in his house, of which he only knew and could get the same recovered, by pointing out. His disclosure statement was recorded, who signed the same, which was attested by Rajinder Singh and Ranjor Singh, Head Constable. He then led the Police party to the pre-disclosed place and got the gandala recovered, rough sketch whereof, was prepared. The gandala was converted into a parcel, duly sealed, and taken into possession, vide a separate recovery memo. Rough site plan of the place of recovery of gandala was prepared. On reaching the Police Station, parcel of gandala was deposited with Moharrir Head Constable.

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On 30.11.2002, Zile Singh, Assistant Sub Inspector, recorded the statements of Shashi Pal, Moharrir Head Constable and Gurcharan Singh, Constable. He also recorded the statements of Rishi Pal, draftsman, and Gulshan Kumar, photographer. On 02.12.2002, Zile Singh, Assistant Sub Inspector, moved an application,before the doctor, to obtain his opinion, regarding the injuries, on the person of Atinder Kumar, received by him, in the present occurrence. The doctor opined the injury on the head of Atinder Kumar, to be dangerous to life. Thereafter, the offence, punishable under Section 307 Indian Penal

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Code, was added, in the case. The statement of Dr. Yogesh Jindal of Yamuna Nagar, was recorded, on 02.12.2002. After the completion of investigation, all the accused, except Balbir Singh, were challaned.

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On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Sections 148, 302, 307 and 323 read with Section 149 of the Indian Penal Code, was framed, against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial.

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Thereafter, the statement of Subhash Chand, complainant, was recorded, and an application under Section 319 of the Code of Criminal Procedure, was moved by the prosecution. Ultimately, Balbir Singh, accused, who had not been challaned, was also summoned, to face trial, alongwith the other accused. On his appearance, in the Court, he was supplied the copies of documents, and a fresh charge against all the accused, for the aforesaid offences, was framed, to which they not pleaded guilty and claimed judicial trial.

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The prosecution, in support of its case, examined Atinder Kumar, eye-witness, injured (PW1), Dr. Sukhraj Singh, Medical Officer, Community Health Centre (PW2), who medico-legally examined Atinder Kumar, on 15.10.2002, at 1.20 A.M., Gurcharan

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Singh, Constable (PW3), a formal witness, who tendered his affidavit, Shashi Pal (PW4), a formal witness, who tendered his affidavit, regarding the recording of formal First Information Report, Mohan Lal, Constable (PW5), through whom, the special reports were sent to the Illaqa Magistrate and other Police officials, Rishi Pal, Constable (PW6), who prepared the scaled site plan of the place of occurrence, on 30.10.2002, on the pointing out of the said place, by Subhash Chand, complainant, Gulshan Kumar (PW7), a photographer, who took the photographs of the dead-body of Sandeep, in Community Health Centre, Ladwa, Ami Lal, Head Constable (PW8), who took the deadbody of Sandeep, to Lok Narain Jai Parkash Hospital, Kurukshetra, and got post-mortem examination conducted, on the same, as also, handed over the sealed parcel given to him, by the doctor, to Zile Singh, Assistant Sub Inspector, Rajinder Singh (PW9), a witness, in whose presence, interrogation of accused Ashok Kumar, was conducted, resulting into making of disclosure statement, and ultimately recovery of gandala, Dr. Yogesh Jindal (PW10), to whom, Subhash Chand, complainant, took Sandeep, on the night intervening 14/15.10.2002, Dr. Subhash Grover (PW11), who conducted the post-mortem examination, on the dead-body of Sandeep, alongwith Dr. C.R. Kharti, Subhash Chand (PW12), the complainant-cum-eyewitness, to the occurrence, Zile Singh, Assistant Sub Inspector (PW13), the

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Investigating Officer of the case.

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The Public Prosecutor for the State, gave up, Dr. C.R. Khatri, Ranjor Singh, Head Constable, Chander Pal Singh, Sub Inspector, Surjan Singh and Vinod Kumar, prosecution witnesses, as unnecessary. After tendering the reports of the Forensic Science Laboratory, in evidence, the Public Prosecutor for the State, closed the prosecution evidence.

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The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Ashok Kumar, accused, stated that he was playing the role of Laxman, in Ramlila, on the relevant day and was on the stage, in the covered pandal, meant for the use of artists of Ramlila. He further stated that he heard commotion in which many other persons were involved. It was further stated by him that he was unable to see, as to who had caused injury, to whom. It was further stated by him that on account of division of people, in the village, on caste basis, in two factions, one consisting of Harijans or Valmikis and the other dominated by Jats, he was falsely involved, in this case. It was further stated by him that the deceased as well as Atinder Kumar, as also the other witnesses, belong to Jat community, while he and other accused, either belong to Harijan or Valmiki

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community. He further stated that soon after the occurrence, he came to know, from the people, who witnessed the same, that the trouble was started by the complainant party, and thereafter, the members thereof, were given beatings, by the uncontrollable mob, which was watching Ramlila.

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Rajesh Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, he was playing the role of Lord Rama, in Ramlila, on the relevant day. The remaining pleas taken up, by him, in his statement, under Section 313 of the Code of Criminal Procedure, were the same, as were taken up by Ashok Kumar, accused.

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Raj Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that he was playing the role of Ravana, in Ramlila, on the relevant day, and was on the stage, in the covered pandal, when the occurrence took place. His other pleas were also similar and identical to the pleas of Ashok Kumar, accused.

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Dharamjit, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that Ballu, Ex-Sarpanch of the village was inimically disposed towards him. He further stated that Atinder Kumar and Subhash Chand, complainant, are relatives of said Ballu. He further stated that, on account of this reason, he was falsely involved, in this case.

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Ramesh Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that he was falsely implicated, in this case, due to factionalism in the village.

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Sudesh Kumar, accused, adopted the stand, taken up, by Ramesh Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure.

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Babu Ram, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, he and his brother Shiv Ram, were placed, under suspension, on 16.10.2002 and 15.10.2002, respectively. It was further stated by him that he and his brother Shiv Ram, were arrested, by the Police, on 15.10.2002. It was further stated by him that the witnesses belong to Jat community, with whom, he and his father Molu Ram, and his brother Rattan Lal, had long standing enmity. It was further stated by him, that his father had filed a number of complaints, regarding the illegal possession of the village land, by the complainant party. It was further stated by him, that Rattan Lal, his brother also lodged reports, against the Jat community, including the prosecution witnesses, as also the Sarpanch namely Sarla Devi, at the relevant time. It was further stated by him, that he and his brother Shiv Ram, being government servants, with a view to cause harm, to their career, the members of the Jat community falsely involved them in this case. In the written statement D1, tendered by him, in order to

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supplement his stand, taken up, in the statement, under Section 313 of the Code of Criminal Procedure, he furnished the complete details of his plea.

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The defence taken up, by Shiv Ram, in his statement under Section 313 of the Code of Criminal Procedure was similar and identical, to the one, taken up by Babu Ram, in his statement under Section 313 of the Code of Criminal Procedure.

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Balbir Singh, accused (since acquitted), in his statement,under Section 313 of the Code of Criminal Procedure, stated that his brother Prem Chand, was working in government press, Panchkula, who died on 18.09.2002, in a car accident, at Sector 26, Chandigarh. According to him, the First Information Report, about that accident was got lodged, in Police Station, Sector 26, Chandigarh. It was further stated by him, that he and the members of his family were under mental and physical shock, on account of that reason. It was

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further submitted by him that, therefore, he did not go to watch Ramlila, on the day of occurrence. It was further stated by him, that he had moved an application to the Director General of Police, Haryana, alleging that he was innocent and was not at all present, at the scene of occurrence. Enquiry, on his application, was entrusted to Hukam Singh, Deputy Superintendent of Police, Panchkula, who had gone to the place of occurrence, on 18.11.2002, and had enquired into and investigated

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the allegations of the case, from him, as also from 50 persons of the village. All the 50 persons had stated before him, that on the day of occurrence, he was not present, in the Ramlila. Hukam Singh, Deputy Superintendent of Police, submitted his report, on 18.11.2002. It was further stated by him, that he was falsely involved, in this case, due to party faction in the village.

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In defence, the accused examined Sohan Lal (DW1), Prem Singh, District Development and Panchayat Officer, Kurukshetra (DW2), Rattan Lal (DW3), brother of Babu Ram and Shiv Ram, accused, Hukam Singh, Deputy Superintendent of Police (DW4) and Dr. H.C. Goyal (DW5). Suspension order of Shiv Ram, exhibit D5, and photocopy of the suspension order of Babu Ram, accused, mark 'A', were tendered into defence evidence. Thereafter, the accused, closed their defence evidence.

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After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above, but acquitted Balbir Singh, accused.

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Feeling aggrieved, the aforesaid appeals, were filed by the appellants, and the criminal revision, was filed by Subhash Chand, complainant, against the order of acquittal of Balbir Singh, accused.

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We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

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The Counsel for the appellants, at the very outset, submitted that the alleged occurrence, took place on 14.10.2002, at about 11.00 PM, at Dhanora Jattan, about 5 kms, from Police Station Ladwa, yet the statement of Subhash Chand, PW12, an alleged eyewitness, who did not receive any injury, on his person, was recorded, at 8.10 AM, on 15.10.2002, in the Community Health Centre, Ladwa, i.e. after a delay of about 9 hours, whereas, the special report reached the Judicial Magistrate 1^st Class, Kurukshetra, at a distance of 20 kms. from Ladwa, at 10.30 AM. He further submitted that had Subhash Chand, prosecution witness, been present, at the time of the alleged occurrence, he would have made his statement to the Police, immediately thereafter. He further submitted that, even Vinod Kumar, Sohan Lal, and Atinder Kumar, the other alleged eye-witnesses, who also did not receive, any injury, in the alleged occurrence, did not make statements, with regard to the same to the Police, immediately thereafter. He further submitted that, thus, delay of 9 hours, in lodging the First Information Report, remained unexplained, which resulted into concoction of story, false implication of the accused, and introduction of false witnesses. The submission of the Counsel for the appellants, appears to be partly correct. No doubt, after grievous injuries, were received by Sandeep

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(now deceased), the first concern of Subhash Chand, was to provide him necessary medical aid, to save his life. No doubt, Subhash Chand, PW12, stated that, in the first instance, Sandeep, was taken to Jindal Hospital, at Yamuna Nagar, where the doctor, on seeing his deteriorating condition, referred him to the Post-Graduate Institute of Medical Education and Research, Chandigarh. However, when Dr. Yogesh Jindal, of Jindal Hospital, appeared as, PW10, he could not produce any document, to show that actually Sandeep, was brought to his hospital, and that he referred him to the Post-Graduate Institute of Medical Education and Research, Chandigarh. He made a noncommittal statement, to the effect, that on the night intervening 14/15.10.2002, Subhash etc., might have come to his hospital, with injured Sandeep, for his treatment. He further stated that he did not have any record of this patient. He further stated that, without his reference or treatment slip, he could not say, if, Sandeep, had been brought to him, or not. He also stated, during the course of his crossexamination, by the defence Counsel, that no entry of Sandeep, in his indoor register, was in existence. He further stated that he was not definite, if, Sandeep, had actually been bought to his hospital, or not. So the delay from 11.00 PM on 14.10.2002 to 4.00 AM, on 15.10.2002, remained unexplained. It appears that such a story was set up by Subhash Chand, prosecution witness, to cover up the delay, in

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lodging the report, from 11.00 PM, on 14.10.2002, to 4.00 AM, on 15.10.2002. The dead body of Sandeep was brought to the Community Health Centre, Ladwa, at 4.00 AM, on 15.10.2002 by Subhash Chand. The delay after 4.00 AM, until 8.10 AM, on 15.10.2002, in lodging the first information report, stood explained from the statement of Subhash Chand. It is proved, from his statement, that he went to the village of his father's sister, whose son was Sandeep (deceased), to inform his parents about his death. As soon, he returned therefrom, his statement was recorded by the Investigating Officer, at about 8.10 AM, on 15.10.2002. Even the doctor of the Community Health Centre, Ladwa, sent intimation to the Police, that the dead-body of Sandeep, had been brought, by Subhash Chand at 4.00 AM. Atinder Kumar, was admitted in the hospital, at 1.20 AM, on 15.10.2002, by Dr. Sukhraj Singh, PW2, and was conscious, at that time, but later on, the doctor declared him not fit to make statement. His statement, therefore, could not recorded immediately. Sohan Lal and Vinod Kumar, the alleged eyewitnesses, did not receive any injury. They also did not make statement, with regard to the occurrence immediately thereafter. Under these circumstances, on account of non-explanation of delay, from 11.00 PM on 14.10.2002 to 4.00 AM on 15.10.2002, by Subhash Chand, prosecution witness, in lodging the First Information Report, the possibility of false implication of some of the accused, and

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concoction of story, to some extent, could not be ruled out. However, this unexplained delay of a few hours, in lodging the First Information Report, did not make the case of the prosecution, in its entirety, doubtful. In the subsequent paragraphs, it would be determined, as to which of the accused were possibly falsely implicated, in the instant case. The submission of the Counsel for the appellants, is partly accepted.

¶125

It was next submitted by the Counsel for the appellants, that no offence, punishable under Section 302 of the Indian Penal Code, was constituted, from the facts, circumstances and the evidence produced by the prosecution. He further submitted that, in the Ramlila, some incident might have taken place, as a result whereof, in the heat of passion, on the spur of moment, some injuries might have been caused, on the person of Sandeep, deceased, and Atinder Kumar. He further submitted that there was no intention to cause the death of the deceased. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The post-mortem examination of the dead-body of Sandeep, deceased, was conducted on 15.10.2002, at 2.55 PM, by doctor Subhash Grover alongwith Dr. C.R. Khatri, Members of the Board, and the following injuries, were found, on the same:-

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i) Swelling over the whole of scalp. Swelling on the right side

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was extending down in front of right ear. On dissection huge haematoma was present over the whole of scalp. Underlying bones right temporofrontal and right parietal bone, left parietal bone and occipital bones were fractured. Extra dural haematoma was visible. On removing the skull bones, whole brain was swollen and right extradural and subdural haematoma were present. Subdural haematoma which was extending to both hemispheres was present.

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ii) Reddish brown abrasion of size of 5 cm x 3 cm was present on the left ibir crest anteriorly.

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iii) Two reddish contusions on the anterior aspect of left thigh were present which were in transversely placed. Sizes were 6 cm x 3 cm, 7 cm x 3 cm, almost in the middle of the left thigh.

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iv) There was present an obliquely placed superficial cut skin deep 8 cm length below injury no. 3. Clotted blood was present.

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v) Reddish brown abrasion 1.5 cm x 1 cm on the anterior aspect of lower 1/3^rd of the right leg was present.

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vi) There was present reddish brown abrasion 1 cm x 1 cm at the junction of upper and middle 1/3^rd of the right leg anterior part.

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vii) Two reddish brown abrasions on the dorsal surface were present of proximal phalanx of left little finger sizes were 1 cm x 1/2 cm and 3/4 cm x 1/2 cm.

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The cause of death, in the opinion of doctors, was shock, as a result of

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multiple injuries (mainly to the brain). The injuries were ante-mortem, in nature, and were sufficient to cause death, in the ordinary course of nature. According to Subhash Chand, Sudesh Kumar, accused, armed with a sword, gave a blow, on the head of Sandeep, whereas, Shiv Ram, accused, armed with a hockey stick, gave an injury therewith, on the right side of the head of Sandeep. The injuries, on the head of Sandeep, deceased, were caused by both these accused with deadly weapons. The swelling was present over the whole of scalp. The underlying bones right temporofrontal, right parietal, left parietal and occipital were fractured. Extra dural haematoma was visible. On removing the skull bones, whole brain was swollen and right extradural and subdural haematoma were present. Subdural haematoma which was extending to both hemispheres was present. Keeping in view the vital part of the body i.e. head of Sandeep, deceased, on which the injuries were caused, by the accused, the weapons, being wielded by them, and the nature of injuries, resulting into his death, clearly proved their intention, to commit his murder. In Suraj Bhan Vs. State of Haryana, 2003(1), Crimes 406 (S.C.), a single lathi blow, on the head of the deceased, resulted into his death. In these circumstances, the Apex Court, held that the appellant could be attributed the knowledge that when he used a lathi forcefully, on the head of the person, he was likely to cause the death of the said person. It was further held by the Apex

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Court, that the conviction of the appellant, could not be altered from Section 302 of the Indian Penal Code, to Section 304 of the Indian Penal Code. In Bakhtawar & Another Vs. State of Haryana, 1980, Supreme Court Cases (Criminal), 150, a decision rendered by a three Judge Bench of the Apex Court, it was held that where the accused intentionally caused the injuries and such injuries were sufficient, in the ordinary course of nature, to cause death, the case fell under Section 300 of the Indian Penal Code thirdly and the offence, punishable under Section 302 of the Indian Penal Code, was constituted. In the instant case, as stated above, Dr. Subhash Grover, PW11, in his statement, in clear-cut terms stated, that the injuries, on the person of the deceased, mainly to the brain i.e. the injury on the head, were sufficient to cause death, in the ordinary course of nature. The principle of law, laid down, in the aforesaid, cases, is fully applicable, to the facts of the instant case. In this view of the matter, the submission of the Counsel for the appellants, that Sudesh Kumar and Shiv Ram, accused, could not be held guilty, for the offence, punishable under Section 302 of the Indian Penal Code, being without merit, must fail, and the same stands rejected.

¶143

It was next submitted by the Counsel for the appellants, that no injury with sword, on the head of Sandeep was found, and, as such Shiv Ram, accused did not participate, in the commission of offence.

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No doubt, injury No. 1 on the head of Sandeep was diffused swelling over whole of the scalp involving fracture of bones. Subhash Chand (PW12), in clear-cut terms stated that sword blow was given, on the head of Sandeep, by Shiv Ram, accused, from the flat side. He further stated that injury with hockey stick was also given by Sudesh Kumar, accused, on the head of Sandeep, deceased. Dr. H.C. Goyal, DW5, examined by the accused, in clear-cut terms, stated that the diffused swelling, aforesaid, was the result of more than one blow. He further stated that if the injury with flat side of the sword is given, with less force, there may not be any mark of injury. From the evidence of Subhash Chand (PW12) duly corroborated by the statement of Dr. H.C. Goyal, DW5, it was proved that injury No. 1, on the head of Sandeep, deceased, was the result of two blows, i.e. one with flat side of the sword, wielded by Shiv Ram, accused, and the second with the hockey stick, wielded by Sudesh Kumar. The submission of the Counsel for the

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appellants, thus, being without merit, must fail, and the same stands rejected.

¶148

It was next submitted by the Counsel for the appellants, that the conduct of Subhash Chand, complainant, PW12, Vinod Kumar and Sohan Lal, at the time of the alleged occurrence, and after the alleged occurrence, was most improbable and unnatural, in as much as, they did not intervene to save Sandeep and Atinder Kumar and also did not

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inform the respectables of the village, or his family members, with regard to the same, immediately thereafter. He further submitted that the conduct of the witnesses aforesaid, therefore, clearly revealed that they were not present, at the time of the alleged occurrence, but were introduced, later on. The submission of the Counsel for the appellants, in this regard, does not appear to correct. In Lila Ram (dead) through Duli Chand Vs. State of Haryana, 1999(4), RCR (Criminal) 588

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(S.C.), the principle of law, laid down, was to the effect, that the Court will have to bear in mind that different witnesses react differently, under different situations; whereas, some become speechless, some start wailing, while some run away, and yet there are some, who may come forward, with courage. It depends upon individual to individual. There cannot be any set pattern or uniform rule of human reaction. To discard a piece of evidence, on the ground of reaction not falling within a set pattern is unproductive and a pedantic exercise. In the instant case, the accused were armed with deadly weapons, whereas Subhash Chand, and the other eye-witnesses, were empty handed. Life is dear to everybody. They knew that, in case, they intervened to save Sandeep (deceased) and Atinder Kumar, they would also be dealt, in the same manner. In these circumstances, if they did not intervene, in the fight, to save Sandeep (deceased) and Atinder Kumar, injured, that did not mean, that their conduct was unnatural and improbable, in any manner.

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In Rimmi @ Rameshwar Vs. State of Madhya Pradesh, 1999(4) RCR (Criminal), 246, the Apex Court, held that, an eye-witness to the murder if did not inform the family members of the deceased, nor did he inform the Police, it could not be said that the conduct of the witness was incompatible with normal behaviour of a person. It was further held that post event conduct of a witness, varies from person to person. It could not be cast-iron reaction, to be followed, as a model, by everyone witnessing such event. Different persons would react differently, on seeing any violence, and their behaviour and conduct would be different. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. Even otherwise, plausible explanation was furnished by Subhash Chand, eyewitness, that when he brought Sandeep, to Community Health Centre, Ladwa, he was declared dead, by the doctor, and he (doctor) told him that he should inform the family members of the deceased. He further stated that he went to the village of Sandeep, and informed his family members. Thereafter, he came back to the Community Health Centre, Ladwa, where his statement was recorded. In these circumstances, the submission of the Counsel for the appellants, that the conduct of Subhash Chand, complainant, and other eye-witnesses, at the time of the alleged occurrence and after the alleged occurrence, was improbable and unnatural, being without merit, must fail, and the same

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stands rejected.

¶159

Now coming to the participation of the accused, in the alleged commission of crime, it may be stated here, that the role of Sudesh Kumar and Shiv Ram, was duly proved, beyond a reasonable doubt. They caused injury, on the head of Sandeep, deceased, which proved fatal, resulting into his death. Shiv Ram, was having a hockey stick, whereas, Sudesh Kumar, was having a sword. Both of them, could be capable of causing injuries, on the person of Sandeep and Atinder Kumar. It seems that somewhat delay, in lodging the First Information Report, which remained unexplained, on record, was utilized by the members of the complainant party, to falsely implicate the remaining accused namely Dharamjit son of Singh Ram, Ramesh Kumar son of Karta Ram, Babu Ram son of Molu Ram, Raj Kumar son of Babu Ram, Rajesh Kumar son of Som Nath and Ashok Kumar son of Chandgi Ram. It appears that the members of the complainant party, tried to rope in innocent persons, alongwith the actual culprits, with a view to exaggerate the number of the accused. Dharamjit, Ramesh Kumar, Babu Ram, Raj Kumar, Rajesh Kumar and Ashok Kumar, accused, were almost attributed one injury each, with blunt weapons, on non-vital parts of the body of Sandeep (now deceased) and Atinder Kumar. Had the accused namely Dharamjit, Ramesh Kumar, Babu Ram, Raj Kumar, Rajesh Kumar and Ashok Kumar, participated in the

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alleged commission of crime, they would not have felt satisfied, by only causing one injury each, on the non-vital parts of the body of Atinder Kumar and Sandeep (now deceased). In that event, they would have made their mince-meat. In Tarlok Singh Vs. State of Punjab, 1974, PLR 84 and Kashmira Singh Vs. State of M.P. AIR, 1952, (SC), 159, the principle of law, laid down, was to the effect, that the tendency to include the innocent, with the guilty is peculiarly present, in India, and it is very difficult, for the Court, to guard against this danger. The only real safeguard, against the risk of condemning the innocent, with the guilty, lies in insisting on independent evidence, which in some measures, implicates such accused. In the instant case, Subhash Chand, PW12, is nearly related to Sandeep, deceased. Atinder, PW1, injured, was also having affinity with Subhash Chand. The other witnesses namely Vinod Kumar and Sohan Lal, who could be said to be, in some measures, independent witnesses, were not examined. Under these circumstances, in the absence of corroboration, through independent evidence, regarding the participation of accused, namely Dharamjit, Ramesh Kumar, Babu Ram, Raj Kumar, Rajesh Kumar and Ashok Kumar, in the commission of crime, the possibility of their false implication, could not be ruled out. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. Since the participation of Dharamjit, Ramesh Kumar, Babu Ram, Raj

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Kumar, Rajesh Kumar and Ashok Kumar, accused, becomes highly doubtful, out of abundant caution, they are required to be given the benefit of doubt, leading to their acquittal.

¶166

The defence evidence, produced by the accused, was duly noted and discussed by the trial Court, in para Nos. 79, 80 and 81. The trial Court, after thorough discussion of the defence evidence, came to the conclusion, that the same was not reliable. This Court, after thorough scrutiny of the evidence of the defence witnesses, also comes to the same conclusion. The trial Court, rightly disbelieved and discarded the defence version, and the defence evidence.

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Once this Court has come to the conclusion, that Dharamjit, Ramesh Kumar, Babu Ram, Raj Kumar, Rajesh Kumar and Ashok Kumar, accused, did not participate in the commission of crime, and are liable to be acquitted, with the participation of the remaining two accused namely Sudesh Kumar and Shiv Ram, in the commission of crime, there could not be formation of any unlawful assembly. Shiv Ram and Sudesh Kumar, accused, thus, in furtherance of common intention, intentionally caused the death of Sandeep, made an attempt to cause the death of Atinder Kumar, and caused simple injuries on the person of Sandeep and Atinder Kumar. Their conviction and sentence are liable to be modified/converted into one under Sections 302, 307 and 323 read with Section 34 of the Indian Penal Code, instead of

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under Sections 302, 307 and 323 read with Section 149 of the Indian Penal Code.

¶171

Coming to the revision petition, filed by Subhash Chand, complainant, against the acquittal of Balbir Singh, accused, who was empty handed, it may be stated here, that the same is also liable to be dismissed, for the reasons, to be recorded, hereinafter. The trial Court, acquitted Balbir Singh, accused, for valid reasons. We have gone through the judgement of the trial Court minutely, and find that the same does not suffer from any infirmity so far as the acquittal of Balbir Singh, is concerned. In these circumstances, there is no justification, for this Court, to interfere in exercise of its revisional jurisdiction, in the findings of the trial Court, acquitting Balbir Singh, accused. The High Court, in its revisional jurisdiction, is not to reach a finding, different from the trial Court, at the instance of the private party. In a revision, at the instance of a private party, the Court exercises only a limited jurisdiction, and cannot act as an Appellate Court. The scope of revision against acquittal, was well discussed by the Apex Court, in a judgement rendered in Bindeshwari Prasad Singh

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@ B.P. Singh and others Vs. State of Bihar (Now Jharkhand) and

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another 2002(4) RCR (Criminal) 61 (S.C.). In the said case, their Lordships of the Apex Court observed that, in the absence of any legal infirmity, either in the procedure, or in the conduct of trial, there was no justification, for the High Court, to interfere in exercise of its revisional jurisdiction. In Bindeshwari Prasad Singh's case (supra), their Lordships also placed reliance on D. Stephens Vs. Nosibolla AIR 1951, Supreme Court 196, K.C.

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Reddy Vs. State of Andhra Pradesh AIR 1962 SC 1788, Akalu Ahir and others Vs. Ramdeo Ram (1973) 2 SCC 583, Patakalapti Narayana Gajapathi Raju and others Vs. Bonapalli Peda Appadu and another, AIR 1975 SC 1854, and Mahendra Pratap Singh Vs. Sarju Singh AIR 1968 SC 707. Similar principle of law, was laid down in Gurmail Singh Vs. Boga Singh and others, 2005(1) RCR (Criminal) 623. In our considered opinion, the trial Court was right, in coming to the conclusion that the participation of Balbir Singh, accused, in the commission of crime, was not proved. The findings of the trial Court, in this regard, do not suffer from any factual infirmity, illegality or perversity. In such a situation, no interference is called for, with the findings of the trial Court, regarding the acquittal of Balbir Singh, accused. The revision petition is, thus, liable to be dismissed.

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For the reasons, recorded above, Criminal Appeal No. 52-DB of 2006, filed by Sudesh Kumar and Criminal Appeal No. 879-DB of 2005, filed by Shiv Ram, appellants, are partly accepted. The judgement of conviction and the order of sentence, qua Sudesh Kumar and Shiv Ram, for the offences, punishable under Sections 302 read with Section 34, 307 read with Section 34, and 323 read with Section 34 of the Indian Penal Code, instead of under Sections 302 read with Section 149, 307 read with Section 149 and 323 read with Section 149 of the Indian Penal Code, are upheld. If they are on bail, their bail bonds shall stand cancelled.

¶178

The judgement of conviction and the order of sentence, for the offence, punishable under Section 148 of the Indian Penal Code, qua Sudesh Kumar and Shiv Ram, appellants, are set-aside. They are acquitted

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of the charge under Section 148 of the Indian Penal Code.

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Criminal Appeal No. 47-DB of 2006, filed by Dharamjit, Criminal Appeal No. 52-DB of 2006 filed by Ramesh Kumar and Criminal Appeal No. 879-DB of 2005, filed by Babu Ram, Raj Kumar, Rajesh Kumar and Ashok Kumar, appellants, are accepted. The judgement of conviction and the order of sentence qua them, are set aside. They shall stand acquitted of the charge, framed against them. If they are on bail, they shall stand discharged of the bail bonds. If they are in custody, they shall be set at liberty, at once, if not required in any other case.

¶183

Criminal Revision No. 437 of 2006, filed by Subhash Chand, complainant, against the order of acquittal, dated 11.11.2005 of Balbir Singh, accused, is dismissed.

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The Chief Judicial Magistrate, Kurukshetra, shall comply with the judgment, with due promptitude, in accordance with the provisions of law.

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(K.S. GAREWAL) (SHAM SUNDER) JUDGE JUDGE

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16.01.2009 Amodh

Subhash Chand v. State of Hry. and Anr.

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Subhash Chand v. State of Hry. and Anr.

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