IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 176-SB of 1997
Date of Decision: 6.3.2009
***
Manohar & others
.. Appellants
vs.
State of Haryana
.. Respondent.
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR
Present:- Mr. Gautam Dutt, Advocate
for the appellants
Mr. Dilbagh Singh, AAG Haryana
Mr. Deepender Singh, Advocate
***
ARVIND KUMAR, J:
This shall dispose of Criminal Appeal No. 176-SB of 1997 and
Criminal Revision No. 537 of 1997.
Criminal Appeal No. 176-SB of 1997 is directed against
judgment and order dated 21.2.1997/26.2.1997, whereby out of the seven
accused, five accused, namely,Dharampal, Sunil, Daya Chand,Shamsher and
Parkash (appellants herein) have been convicted and sentenced for
commission of offence under Section 148, 307 and 506 read with Section
149 IPC. Their two co-accused, namely, Manohar and Surta have been
acquitted of the charges. For offence under Section 148 IPC, all the five
appellants-accused were sentenced to undergo rigorous imprisonment for
six months; for offence under Section 506 read with Section 149 IPC, to
undergo rigorous imprisonment for one year and to pay a fine of Rs.200/-
and in default of payment of fine, to undergo further imprisonment for one
month and under Section 307 IPC read with Section 149 IPC to undergo
rigorous imprisonment for five years and to pay fine of Rs.1000/- and in
default of payment of fine, to undergo further imprisonment for four
months. All the substantive sentences were however, ordered to run
concurrently. Dissatisfied with the conviction and sentence, the appellants
Crl. Appeal No. 176-SB of 1997 -2-
have preferred the instant appeal.
Criminal Revision No. 537 of 1997 by the complainant-Laxmi,
i.e. mother of injured Jai Bhagwan, has been preferred being aggrieved with
the acquittal of Manohar and Surta and for enhancement of sentence
awarded to the accused-appellants besides imposition of heavy amount of
fine for being paid as compensation to injured Jai Bhagwan.
As per prosecution version, on 7.11.1991, the complainant,
Laxmi wife of Dharambir Singh, made statement before the police stating
that at about 7.00 A.M. on that day when she had gone to the fields to bring
fodder, Jai Bhagwan, her Jaith (Husband’s brother) went to the fields of
accused Manohar in order to fix a fuse in the transformer. During that
period, all the accused rushed towards him. Accused, Parkash and
Shamsher were armed with Kulhari, accused Dharampal, Daya Chand and
Sunil with Pharsas whereas accused Manohar and Surta with Lathis.
Accused Parkash and Shamsher gave Kulhari blows on the head of Jai
Bhagwan while Manohar and Surta caught hold of him. Thereafter,
accused Dharampal, Daya Chand and Sunil caused injuries to Jai Bhagwan
on his head and left hand with Pharsas. As a result thereof, Jai Bhagwan
became unconscious. On hearing noise, she(complainant) along with Ramu,
her Jeth (brother-in-law) and Smt. Bala, Devrani(husband’s brother’s wife),
already coming towards the fields, reached the spot. The accused gave
slaps and fist blows to Ramu also and left the place while extending threats.
Jai Bhagwan was then taken to General Hospital, Gurgaon, by Ramu.
The present FIR came to be registered on the statement of Laxmi
against the accused persons. Injured Jai Bhagwan was found to have been
referred to Safderjang Hospital, New Delhi. The police on getting
information that he was admitted in Kolmet Hospital Delhi, went there in
order to record his statement but he was declared unfit by the doctor
concerned. Thereafter, the accused were arrested. Accused Shamsher and
Parkash made disclosure statements before the police in furtherance of
which each of two got recovered a Kulhari. Seven injuries on the person of
Jai Bhagwan were declared dangerous to life by the doctor. After
completion of investigation of the case, challan was presented in Court. The
learned trial Court on finding a prima-facie case under the afore-stated
sections, charge-sheeted the accused-appellants to which they pleaded not
Crl. Appeal No. 176-SB of 1997 -3-
guilty and claimed trial.
To substantiate the charges against the appellants, the
prosecution examined PW-1 Dr. Pankaj Arora, PW-2 Dr. S.K. Sharma,
PW-3 Dharampal, Revenue Patwari, PW-4 Head Constable Ashok Kumar,
PW-5 Dr.S.K.Gogani, PW-6 Dr.S.P.Mandal, PW-7 Dr.Rajinder Parkash
Arora, PW-8 Ramu, PW-9 Laxmi(complainant), PW-10 Jai Bhagwan
(injured) and PW-11 ASI Suraj Bhan, and closed its evidence.
In their statements recorded under Section 313 Cr.P.C. the
appellants denied the prosecution allegations and pleaded false implication
in the case. However, Shamsher has come up the plea of self-defence. His
version is that at about 9 A.M., Jai Bhagwan PW inflicted injuries to him
and in self-defence, he caused injuries to Jai Bhagwan and at that time, no
other person except him and Jai Bhagwan was present at the spot. In
defence, they produced DW-1 Dr. B.M.Bhatnagar.
After hearing the parties, the learned trial Court convicted and
sentenced the appellants in the manner indicated above. Hence, the instant
appeal.
I have heard the learned counsel for the parties and have also
gone through the record carefully.
Counsel for the appellants has mainly contended that Shamsher
had also received as many as 5 injuries on his person which were not
explained by the complainant party and it would go to show that they had
not come out with full truth and as such, the plea of self-defence, merits
acceptance. The argument is not convincing. Non-explanation of the
injuries by the prosecution will not affect the prosecution case where
injuries sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so
probable, consistent and creditworthy, that it outweighs the effect of the
omission on the part of the prosecution to explain the injuries. In
Ramlagan Singh v. State of Bihar, AIR 1972 SC 2593, it has been held
that the prosecution is not called upon in all cases to explain the injuries
received by the accused persons. In Hare Krishna Singh and others v.
State of Bihar, AIR 1988 SC 863, it was observed that the obligation of the
prosecution to explain the injuries sustained by the accused in the same
occurrence may not arise in each and every case. In other words, it is not an
Crl. Appeal No. 176-SB of 1997 -4-
invariable rule that the prosecution has to explain the injuries sustained by
the accused in the same occurrence. If the witnesses examined on behalf of
the prosecution are believed by the Court in proof of guilt of the accused
beyond reasonable doubt, question of obligation of prosecution to explain
injuries sustained by the accused will not arise. When the prosecution
comes with a definite case that the offence has been committed by the
accused and proves its case beyond any reasonable doubt, it becomes hardly
necessary for the prosecution to again explain how and under what
circumstances the injuries have been inflicted on the person of the accused.
It is more so when the injuries are simple or superficial in nature.
Similarly, in the present case, DW-1 Dr. B.M.Bhatnagar medico-legally
examined Shamsher at 3 P.M. on the same day and he though no doubt
found 5 injuries but all of them were superficial. With regard to one of the
injuries, namely, injury No.3, it had been opined that it could be created by
friendly hand and so much so, in the MLR, the probable duration of the
injuries was also not given. In this background of the facts, trifle and
superficial injuries on the person of Shamsher are of no assistance to them
to substantiate the plea of self-defence and throw doubt on the veracity of
the prosecution case.
Counsel for the appellants has laid much stress that there has
been a delay of about 12 hours in lodging the FIR which is fatal, but this
argument is not tenable. The delay ipso facto is not fatal to the case of the
prosecution if it is explained satisfactorily. Jai Bhagwan was seriously
injured having number of injuries on his head. The natural emphasis of the
witness was to provide adequate medical treatment to him. Injured in this
case was firstly taken to General Hospital, Gurgaon, then to Safdarjang
Hospital, Delhi, and then to Sir Ganga Ram Hospital, Delhi, and to Colonet
Hospital on account of the fact that beds were not available in the said
hospital. In this process, if the FIR was not lodged immediately after the
occurrence, it certainly does not affect the prosecution case as much time
had been utilized for getting proper treatment to Jai Bhagwan and it cannot
be said that the witnesses had gained time for some ulterior motive.
Faced with this situation, counsel for the appellants has
contended that the FIR does not contain the entire details of the incident as
much as the sequence of the injuries caused by the accused. This argument
Crl. Appeal No. 176-SB of 1997 -5-
again is not tenable. The FIR need not contain the details of the occurrence
as if it were an encyclopaedia of the occurrence. Only the essential or broad
picture need be stated in the FIR and all minute details need not be
mentioned therein. In the instant case, the names of the accused with their
respective weapons and infliction of injuries by them on the person of Jai
Bhagwan are duly mentioned. No doubt, the name of the eye-witness had
not been mentioned in the Rapat Roznamcha dated 7.11.1991 entered by
PW-4 Constable Ashok Kumar but that may only be an omission and does
not affect the case of the prosecution in any manner. The case mainly
rests on the statement of PW-8 Ramu, PW-9 Laxmi(complainant) and PW-
10 Jai Bhagwan. Their statements are consistent as regards the appellants’
carrying weapons in their hands and causing injuries to Jai Bhagwan. They
were subjected to lengthy cross-examination. They stood firm to their stand
and nothing could be extracted which could benefit the defence.
It has been argued that as per statement of PW-8 Ramu, he
throughout had accompanied injured Jai Bhagwan to various hospitals
including General Hospital, Gurgaon, where initially he was removed but as
per MLR, Exhibit PB, coupled with the statement of PW-2 Dr.S.K.Sharma,
Jai Bhagwan in fact was brought by one Bhup Singh and this negatives the
presence of PW-8 Ramu at the spot. This argument is also not tenable for
the reason that the doctor normally records the name of the person(s) who
are readily available with the injured at particular moment without
ascertaining whether he/they had witnessed the occurrence or not. In this
context, reference may be made to a judgment of the Hon’ble Supreme
Court in B. Bhadriah and others v. State of Andhra Pradesh, 1995
Supreme Court Cases (Crl.) 370, wherein it has been observed that
casual way of filling up the column in the medical certificate does not
amount to recording a statement of the injured witness. Thus, the defence
cannot derive any benefit from it.
Counsel has also laid much stress that the police had not
recorded the statement of Jai Bhagwan, injured, under Section 161 Cr.P.C.
for which there is every likelihood of the witness making an improvement,
but there is no force in this contention as well. The statement of PW-11 SI
Suraj Bhan indicates that right from the beginning, Jai Bhagwan was either
unconscious or not fit to make statement. He had sought opinion of the
Crl. Appeal No. 176-SB of 1997 -6-
doctor on many occasions but on every occasion the doctor opined that he
was not fit to make statement. Jai Bhagwan, injured, despite having been
discharged from the hospital on 18.11.1991, was medically examined on
28.11.1991 in the private OPD by PW-5 Dr. S.K.Gogani, who found him
drowsy and behaving abnormally and then he examined him on 10.12.1991
and even at that time, he was found to be confused and was not standing
properly. Challan in this case was presented on 19.12.1991, which
indicates that by the time the police had filed the challan, Jai Bhagwan was
not in mental state to make statement. Even, PW-11 SI Suraj Bhan has
stated that during entire investigation, Jai Bhagwan injured was not found fit
to make statement. This led to non-recording of his statement under Section
161 Cr.P.C., for which no adverse inference can be drawn against the
prosecution.
Jai Bhagwan had 8 injuries on his person out of which 7
injuries were on the head region and the same were kept under observation.
However, subsequently, PW-2 Dr.S.K.Sharma on the application of PW-11
SI Suraj Bhan, had opined that injuries No. 1 to 7 are dangerous to life.
PW-5 Dr.S.K.Gogani who also found fracture on the skull at 3 places,
opined that the injuries were serious in nature and were sufficient to cause
death in the normal course but for want of medical aid. As such, no stress
can be laid by the counsel for the appellants that the offence does not fall
under Section 307 IPC.
For the reasons recorded above, the present appeal, namely,
Crl. Appeal No. 176-SB of 1997, fails and is hereby dismissed. The
accused-appellants are directed to immediately surrender before the Court of
Chief Judicial Magistrate, Gurgaon, to undergo remainder of the sentence,
awarded above, as per law and in case of failure to do so, the CJM
concerned shall procure their presence through coercive process.
As regards Criminal Revision No. 537 of 1997 preferred by
the complainant, Laxmi, whereby challenge is to the acquittal of two
accused, namely, Manohar and Surta, and for enhancement of sentence to
the appellants, the same is without any merit and the same too is hereby
dismissed.
March 6, 2009 ( ARVIND KUMAR )
JS JUDGE
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Revision No. 537 of 1997
Date of Decision: 6.3.2009
***
Laxmi
.. Petitioner
vs.
Manohar and others
.. Respondents.
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR
Present:- Mr. Deepender Singh, Advocate
for the petitioner
Mr. Dilbagh Singh, AAG Haryana
Mr. Gautam Dutt, Advocate
***
ARVIND KUMAR, J:
For orders, see Criminal Appeal No. 176-SB of 1997.
March 6, 2009 ( ARVIND KUMAR ) JS JUDGE