Criminal Appeal No.578 DB of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.578 DB of 1998
Date of decision: 4.10.2008
Ram Dev
......Appellant
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.K.K.Aggarwal, Sr. Advocate with
Mr.R.K.Agnihotri, Advocate,
for the appellants.
Mr.S.S.Randhawa, Addl. A.G.Haryana.
****
JUDGMENT
SABINA, J.
This judgment would dispose of Criminal Appeals No.
578-DB of 1998 and 36-DB of 1999 as both have arisen out of
judgment dated 5.12.1998 passed by Additional Sessions Judge -I,
Narnaul, whereby appellants were convicted and sentenced under
Sections 148, 302, 325, 323/149 and 452 IPC.
Criminal Appeal No.578 DB of 1998 2
Prosecution story in brief as noticed by the trial Court in
para Nos. 1 and 2 of its judgment reads as under:-
“Briefly stated the case of the prosecution as emerging
out from the report under Section 173 Cr.P.C. are that Lal
Chand (since deceased) son of Pehlad was the husband
of complainant Smt.Kanta. On 15.6.1997 at about 6.30
p.m. Lal Chand (since deceased), complainant Smt.
Kanta and their children were present at their house
situated in village Bihali. One Dholi Daughter of Jani Ram
and accused Papori @ Brahma were quarrelling with
each other. In the meantime, Subhash who is the
husband of accused Papori @ Brahma came there and
started beating Dholi. Lal Chand intervened. Sub hash
and Papori @ Brahma left that place while abusing Lal
Chand. After some time accused Ramesh, Gugan each
armed with axe (Kulhari), Vikram, Naresh, Ramdev,
Bimla, Papori @ Brahma, Kamla, Suman wife of Naresh,
Santra, Suman daughter of Gugan, Fateh Singh each
armed with lathis and accused Subhash armed with Gulel
(a wooden danda having two horns fitted with rubber
strap to be used for throwing a stone) entered in the
house of complainant Smt.Kanta and deceased Lal
Chand, in furtherance of their common intention to cause
injuries to Lal Chand. Accused Ramesh opened attack
and caused a blow from sharp side of the axe on the
Criminal Appeal No.578 DB of 1998 3forehead of Lal Chand. Accused Gugan caused an axe
blow on the nose of Lal Chand, consequently, his nose
was chopped of. Lal Chand fell down on the ground.
Accused Vikram and Naresh caused lathi blows to him.
In the meantime, Mukhtiar the brother of Lal Chand came
there. Mukhtiar, Ram Kishan, Dholia, Sonu and the
complainant tried to rescue Lal Chand from the clutches
of the accused persons. Accused Ramdev and Vikram
caused lathi blows on the thigh, waist and right hand of
the complainant. Accused Subhash caused a blow with
Gulel on the forehead of the complainant. Accused
persons also caused hurt to Ram Kishan, Dholia, Sonu
and Mukhtiar. In the meantime, Ami Lal son of Hazari
and several other persons came at the spot and
witnessed the occurrence. All the accused persons took
their heels from the place of occurrence along with their
respective weapons. The complainant party also caused
some injuries to the members of the accused party, in
their defence.
The motive behind the occurrence was that
some eight or nine years ago, accused Gugan had
borrowed a sum of Rs. Twenty thousands from Lal Chand
but he did not return that amount despite repeated
demands. The another reason for causing hurt by the
accused persons to the complainant and her family
Criminal Appeal No.578 DB of 1998 4members was that Lal Chand had restrained accused
Papori @ Brahma and Subhash from quarrelling with
Dholi daughter of Jani Ram, who is the uncle of deceased
Lal Chand.”
Injured were removed to the hospital, in a camel cart. Lal
Chand, however, succumbed to his injuries on the way to the
hospital. On 16.6.1997 ASI Ram Niwas received an information from
the doctor of C.H.C. Ateli with regard to arrival of dead body of Lal
Chand in the hospital at about 1.30 a.m. He reached the hospital
along with other police officials and met injured Ram Kishan, Dholia,
Sonu and Mukhtiar. He sought information from the doctor regarding
fitness of the injured. The doctor vide his opinion declared all the
injured fit to make statements. He recorded the statement of
complainant Kanta and on the basis of the same formal FIR No.149
dated 16.6.1997 was recorded. The dead body was got
photographed. ASI Ram Niwas prepared the inquest report with
regard to dead body and sent the same for postmortem examination.
Dr. O.P.Siroha medico legally examined Ram Kishan on
16.6.1997 and found following injuries on his person:-
1. ALW wound 6×2 cm scalp deep on the middle of the
parietal regions. Bleeding was prresent and other 4×1
cm anterior.
2. Crush injury on right thumb. Bleeding was present.
Parietal terminal part was amputated.
3. He was complaining of pain in chest. Mild reddish
Criminal Appeal No.578 DB of 1998 5swelling on the right side of the chest 8x 5 cm.
In his opinion injuries had been caused with a blunt
weapon and injury No.2 was declared grievous in nature after receipt
of X-ray report, whereas, the remaining were declared simple in
nature.
He also examined injured Sonu at 1.35 a.m. on the same
day and found following injury on his person:-
“Lacerated wound 3×2 cm on the lower lip. Teeth
missing. Bleeding from the gum was present.”
In his opinion, kind of weapon used was blunt and the
injury on the person of Sonu was declared as grievous in nature.
On the same day at 1.55 a.m. he medico legally
examined Dholia and found following injuries on his person:-
1. A reddish contusion 5 x 3 cm on the right fore-arm
upper third.
2. He was complaining of pain in the right hand’s fingers.
3. He was complaining of pain in chest and the reddish
contusion on the left shoulder joint and scapular region
left side.
4. (a) A lacerated wound 2 x 1 cm on the upper part of
occeput.
5. (b) An abraded reddish contusion 3 x 3 cm on the left
parietal region.
In his opinion injuries had been caused with a blunt
weapon. All the injuries were declared simple in nature.
Criminal Appeal No.578 DB of 1998 6
He medico legally examined injured Mukhtiar on the same
day at 2.05 a.m. and found following injuries on his person:-
1. There was a reddish swelling on the dorsum of the left
hand.
2. A reddish contusion 10x 5 cm on the right thigh.
In his opinion the injuries had been caused with a blunt
weapon and both the injuries were declared simple in nature.
On the same day he medico legally examined Kanta and
found following injuries on her person:-
1. There was a reddish contusion 2 x 1 cm on the left
thumb, she was complaining of pain.
2. An abraded reddish contusion 1 x 1 cm and lacerated
wound ½ cm x 1/2 cm on the right side of the forehead.
3. A contusion 8x 5 cm on the left thigh.
4. A reddish contusion on the right middle finger and was
complaining of pain in the right hand.
In his opinion the kind of weapon used was blunt and all
the injuries were declared simple in nature.
Dr.Alok Jain conducted the postmortem examination on
the dead body of Lal Chand on 16.6.1997 and found following
injuries on his person:-
1. Scull box was broken open at frontal area brain tissues
bulging out.
2. Lacerated wound right parietal area.
3. Nose tip chapped off.
Criminal Appeal No.578 DB of 1998 7
4. Right ear lib lacerated.
Walls of the thorax, ribs and abdomen were seen and
he found abrasions on the walls of the thorax.
The cause of death in this case was due to brain tissue
injuries and shock which was sufficient to cause death in ordinary
course of nature and it was ante mortem in nature.
ASI Ram Niwas visited the spot on 16.6.1997. He got the
place of occurrence photographed and prepared the rough site plan.
He also lifted blood stained earth from the spot. He arrested
accused Gugan, Vikram, Naresh, Papori @ Brahma, Bimla, Ram
Dev and Fateh Singh. At the time of arrest accused Gugan produced
an axe, accused Vikram produced Lathi, Accused Naresh and Fateh
Singh produced dandas. All the said weapons were taken in
possession.
On 21.6.1997, accused Santra, Suman d/o Gugan,
Kamla, Suman w/o Naresh and Subhash were arrested. Accused
Santra produced lathi, whereas, accused Subhash produced gulel
and the same were taken in possession. Accused Ramesh was
arrested on 29.6.1997 and during interrogation he suffered a
disclosure statement and got recovered an axe on the basis of the
said statement. On 30.7.1997, a scaled site plan was got prepared
with regard to place of occurrence.
After completion of investigation and necessary
formalities accused were sent up for trial. Charge against them was
framed under Sections 148, 302, 325, 323/149 and 452 IPC on
Criminal Appeal No.578 DB of 1998 8
17.2.1998. Accused did not plead guilty and claimed trial.
Prosecution in order to prove its case examined 17
witnesses at the trial. After close of prosecution evidence accused,
Gugan when examined under Section 313 Cr.P.C. pleaded as
under:-
“I am innocent. It is a false case. I have been wrongly
involved in this case. That on 15.6.1997 at about 9.00
p.m. Ramesh came back after selling the vegetables on
his camel-cart. When he was tethering his camel in the
fields of Balbir son of Hira Lal, which is situated in front of
the house of Lal Chand (since deceased), Lal Chand
objected the tethering the camel because it causes
nuisance. After tether his camel in the fields of Balbir,
when he was coming to the house, Lal Chand (since
deceased), Mukhtiar, Ram Kishan, Dholia, Bhoopan
armed with lathis, encircled Ramesh and open an attack
on him with their respective weapons. Lal Chand gave a
lathi blow on the forehead of Ramesh, Mukhtiar gave a
lathi blow on his left cheek, Ram Kishan gave a lathi blow
on the left parietal, Dholia gave a lathi blow on the left
side of his back, Bhoopan gave a lathi blow on his head.
On hearing the noise of Ramesh, myself, Vikram, Naresh,
Brahma and Bimla also reached the spot to rescue
Ramesh and when they tried to rescue Ramesh, Ram
Kishan gave two lathi blows on the back of Vikram,
Mukhtiar gave a lathi blow on the head of Vikram
Criminal Appeal No.578 DB of 1998 9with intent to kill him, which was declared grievous. Lal
Chand since deceased gave a lathi blow on my head.
Ram Kishan also gave a lathi blow on my chest, Dholia
gave a lathi blow on my back, Mukhtiar gave a lathi blow
on my left shoulder, Ram Kishan gave a lathi blow on the
right thumb of Naresh, Dholia gave a lathi blow on the left
arm of Naresh. Mukhtiar gave a lathi blow on the left arm
of Naresh. Bhoopan gave a lathi blow on the head of
Brahma, Mukhtiar gave a lathi blow on the belly of Brhma.
Ram Kishan gave a lathi blow on the forehead of Bimla,
Dholia gave a lathi blow on the chest of Bimla, Mukhtiar
gave a lathi blow on the left arm of Bimla. This
occurrence had taken place in the village path which is
situated between the house of Lal Chand and field of
Balbir Singh. This occurrence was witnessed by Bodan
son of Chand Ram, resident of Bihali and Phoolchand
son of Kishan Lal, resident of Antri. Ramdev, Suman
daughter of Gugan, Suman wife of Naresh, Santra wife of
Gugan, Kamla wife of Ramesh, Subhash and Fateh Singh
were not present at that time.”
Similar plea was taken by the other accused. Accused
examined Dr.O.P.Siroha (DW-4) in their defence.
Learned trial Judge believed the prosecution version so
far as accused Ram Dev, Gugan, Vikram, Naresh, Ramesh,
Subhash, Papori @ Brahma and Bimla are concerned and convicted
Criminal Appeal No.578 DB of 1998 10
and sentenced them under Sections 148, 302, 325, 323/149 and 452
IPC. Accused Fateh Singh, Suman d/o Gugan, Santra, Kamla and
Suman w/o Naresh were acquitted of the charge framed against
them. Hence, the present two appeals.
In appeal, it has been argued that the prosecution had
miserably failed to prove its case. Accused Ramesh, Gugan, Papori
@ Brahma, Bimla and Vikram had also suffered injuries in the
alleged occurrence. So far as injury on the person of Vikram is
concerned, the same as per the doctor (DW-1) could be dangerous
to the life. The accused party had inflicted injuries on the person of
the complainant party in self defence. Accused had no intention to
commit murder of deceased Lal Chand. Houses of Lal Chand
deceased and Gugan adjoin each other. The occurrence, in fact,
had taken place in the street and the complainant party was the
aggressor. Prosecution had failed to prove any motive with the
accused party to commit murder of deceased Lal Chand.
Learned State counsel, on the other hand, has argued
that all the accused had come to the house of Lal Chand armed with
deadly weapons and had inflicted injuries on the person of the
deceased as well as other injured. From the nature of injury No.1 on
the person of deceased Lal Chand, it was evident that all the
accused had intention to commit his murder .
Present case rests on an eye witness account.
Kanta (PW-1), Mukhtiar (PW-14) and Dholia (PW-15)
have deposed with regard to manner of occurrence. As per the eye
Criminal Appeal No.578 DB of 1998 11
witness account, accused Gugan and Ramesh had come to the spot
armed with kulharis (axe), whereas, remaining accused had come to
the spot armed with lathis. Accused Ramesh opened the attack by
inflicting injuries with kulhari on the head of Lal Chand and,
thereafter, accused Gugan gave a kulhari blow on his nose.
Mukhtiar (PW-14) and Dholia (PW-15) have deposed that accused
Vikram and Naresh gave lathi blows on the head and near the ear of
Lal Chand. Initially in the FIR Kanta (PW-1) had stated that accused
Vikram and Naresh had inflicted lathi blows on the person of her
huaband, whereas, while appearing in the witness box, she deposed
that accused Vikram and Ram Dev gave lathi blows on the person of
her husband. She was duly confronted with this fact during her
cross-examination. Keeping in view the testimony of PW-14 and
PW-15 and the initial statement of PW-1 with the police, it transpires
that accused Vikram and Naresh had inflicted injuries on the person
of the deceased with their respective lathis. Injured Kanta, Ram
Kishan, Dholia, Sonu and Mukesh also suffered injuries at the hands
of the accused party.
From a perusal of site plan (Exhibit PK) prepared by
draftsman and Exhibit EA/4 prepared by the Investigating Officer , it
appears that the occurrence had taken place in the house of
deceased Lal Chand. Exhibit PO is the recovery memo, vide which
blood stained earth was lifted from the spot. A perusal of the same
reveals that the blood stained earth was lifted from the chowk near
the chappar at the Eastern-Southern side of the house of deceased
Criminal Appeal No.578 DB of 1998 12
Lal Chand. This leads to the inference that the occurrence had
started in the street and not in the house of the deceased as alleged
by the prosecution. Occurrence in this case is admitted but Exhibit
PO makes the ocular version doubtful with regard to place of
occurrence. Whenever a doubt is created in the prosecution case,
benefit of the same has to be extended to the accused. Hence,
possibility of the occurrence, in fact, having been started in the
street cannot be ruled out. The outer wall of the house of Lal Chand
is not very high and the possibility that after the occurrence started,
the parties moved into the house of Lal Chand can also not be ruled
out.
Motive put forth by the prosecution for commission of
offence of murder appears to be too fragile. It has been alleged that
eight or nine years prior to the occurrence Lal Chand had lent
Rs.20,000/- to Gugan but the same had not been returned back.
There is nothing on record to suggest that there was any civil
litigation pending between the parties with regard to the said loan.
There is also nothing on record to suggest that the parties, who were
neighbours, had quarrelled with each other on an earlier occasion
except on 15.6.1997 at 6.30 p.m. i.e. a day prior to the occurrence.
Even the said occurrence was trivial in nature. Dholi d/o Jani Ram
(brother of deceased’s father) and Papori d/o Gugan had quarrelled
with each other and Lal Chand had rescued Dholi. This, in itself
cannot be said to be a sufficient motive for the accused party to
commit murder of deceased Lal Chand.
Criminal Appeal No.578 DB of 1998 13
It appears that both the parties, who were residing in the
houses adjoining each other, met in the street. They were allegedly
armed with weapons and without any pre meditation, in a sudden
fight, inflicted injuries on each other. Accused Ramesh, Gugan,
Papori, Bimla and Vikram had also suffered injuries in the alleged
occurrence. The said injured were duly examined by Dr.O.P.Siroha
(DW-1), who deposed that on 16.6.1997 at about 2.35 a.m. he
medico legally examined Ramesh and found following injuries on his
person:-
1. There was a lacerated wound 3 cm x 1 cm bone deep
on the forehead above and left eyebrow.
2. There was a lacerated wound 1.5 cm x 1 cm on the left
cheek.
3. There was a lacerated wound 6 cm x 1.5 cm scalp
deep on the left parietal region.
4. Complaining of pain on the left side of the back of the
chest 5 cm x 1cm
On the same day he also examined injured Gugan and
found following injuries on his person:-
1. A lacerated wound 4 cm x 0.5 cm scalp deep was
present on the right parietal eminence.
2. He was complaining of pain chest, anterior aspect of
the chest, there was contusion 10 cm x 5 cm on the
right pectoral region and 5 cm x 3 cm on the left
scapular region.
Criminal Appeal No.578 DB of 1998 14
On the same day at 3.10 a.m. he medico legally
examined Vikram and found following injuries on his person:-
1. A lacerated wound 4 cm x 1 cm scalp deep on the left
side of the upper part of occipit.
2. Multiple abraded reddish contusion 8 cm x 2 cm, 5 cmx
3 cm on the right side of the back of the chest.
On the same day he medico legally examined Brahma
and found following injuries on her person:-
1. An abraded contusion 1.5 cm x 1 cm on the frontal part
of the left side of scalp.
2. She was complaining of pain in abdomen, pregnant.
On the same day at about 3.30 a.m. he medico legally
examined Bimla and found following injuries on her person:-
1. A lacerated wound 2 cm x 0.5 cm on the right parietal
region.
2. An abraded reddish contusion 3 cm x 2 cm on the
middle of the forehead.
3. Multiple abraded reddish contusion 3 cm x 2 cm, 1 cm
x 1 cm, ½cm x ½ cm on the chest and she was
complaining of pain.
In his opinion injuries of all the persons had been inflicted
with blunt weapons. Injuries on the person of Ramesh, Gugan,
Naresh, Vikram, Brahma and Bimla were neither superficial nor self
suffered. Possibility of injury No.1 on the person of Vikram being
dangerous to life could not be ruled out. The said injury was a
Criminal Appeal No.578 DB of 1998 15
depressed fracture of posterior parietal region of skull.
Both the parties had suffered injuries in the alleged
occurrence and the possibility is there that the said fight started in
the street and it leads to the inference that it was a case of a sudden
fight.
It is not possible to enunciate any general rule as to what
shall be deemed to be a sudden quarrel. It is a question of fact and
whether a quarrel is sudden fight or not must necessarily depend
upon the proved facts of each case. The cause of quarrel is not
relevant nor is it relevant who offered the provocation or started the
fight. A ‘sudden fight’ implies mutual provocation and blows on each
side. There is no previous deliberation or determination to fight. A
fight suddenly takes place for which both the parties are more of less
to be blamed. It may be that one of them starts it, but if the other had
not aggravated it by his own conduct it would not have taken the
serious turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of blame which
attaches to each fighter. It is immaterial, who gave the first blow. It
further has to be established that the offender had not taken undue
advantage and had not acted in a cruel or unusual manner.
In the present case the deceased had suffered four
injuries. As per Dr.Alok Jain (PW-8) injuries No. 2,3 and 4 could not
be the cause for death of Lal Chand. Injuries No. 2 and 4 were
superficial in nature. Hence, the cause of death was injury No.1,
which was on the head of deceased and is attributed to accused
Criminal Appeal No.578 DB of 1998 16
Ramesh. The fact that only one injury was inflicted by accused
Ramesh leads to the inference that he had not taken undue
advantage nor it acted in a cruel manner. While inflicting the said
injury, accused Ramesh had no intention of causing death of Lal
Chand but he had the knowledge that the said injury could very well
result in the death of deceased. Accused Ramesh is, thus, liable to
be convicted for an offence under Section 304 (II) IPC and not under
Section 302 IPC. Offences under Sections 148 and 452 IPC are also
not made out in this case, as it was a case of sudden fight and the
possibility of its having been started in the street cannot be ruled out.
Accordingly, both the appeals are partly allowed.
Conviction of appellant Ramesh is converted from under Section 302
IPC to Section 304 (II) IPC and his sentence is reduced to rigorous
imprisonment for 10 years.
It was stated by learned counsel for the parties that
appellant Gugan and Vikram had since died and, hence, appeal qua
them is disposed of as abated.
All the accused are acquitted of the charge framed
against them under Sections 148 and 452 IPC. So far as charge
under Section 325 IPC framed against the accused is concerned,
from the statements of the eye witnesses it cannot be specifically pin
pointed as to which of the appellant is liable for causing grievous
injuries to Sonu and Ram Kishan. As such, conviction of any of the
accused under Section 325 IPC cannot be passed. Accused Ram
Dev, Naresh, Subhash, Papori @ Brahma and Bimla had caused
Criminal Appeal No.578 DB of 1998 17
simple injuries on the person of the complainant party with their
respective weapons. Accordingly, they are convicted under Section
323 IPC and are sentenced to undergo rigorous imprisonment for
one year.
(SABINA)
JUDGE
(JASBIR SINGH)
JUDGE
October 04, 2008
anita