Crl. Appeal No. 437-DB of 2001 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 437-DB of 2001
Mohd. Yunus & Ors. ..........Appellants
Versus
State of Haryana ..........Respondent
Crl. Revn. No. 418 of 2005
Deenu ..........Petitioner
Versus
State of Haryana & Anr. ..........Respondents
DATE OF DECISION: 26.10.2009
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. R.S. Rai, Senior Advocate
with Mr. Deepender Brar and Mr. Swaran
Tiwana, Advocate for the appellants.
Mr. H.S. Sran, Additional Advocate
General, Haryana.
****
DAYA CHAUDHARY, J.
This order shall dispose of Crl. Appeal No.437-DB of 2001 and
Crl. Revn. No. 418 of 2005. Criminal Appeal has been filed by Mohd.
Yunus, Mohd. Jamil and Ghasita against the judgment and order dated
25.7.2001 and 26.7.2001, respectively, passed by Additional Sessions
Judge, Gurgaon in Sessions Case No.12 of 15.4.1999, whereby, the
accused-appellants have been convicted and sentenced to undergo life
Crl. Appeal No. 437-DB of 2001 (2)
imprisonment and to pay a fine in the sum of Rs.20,000/- each under
Section 302 read with Section 34 IPC and in default of payment of fine to
further undergo RI for two years each. They have also been convicted and
sentenced to undergo RI for six months and to pay a fine in the sum of
Rs.1000/- each under Section 323 read with Section 34 IPC and in default
of payment of fine to further undergo RI for two months each.
Criminal Revision No. 418 of 2005 has been filed by
complainant-Deenu against the judgment dated 5.10.2004, whereby,
Akhtar Hussain, respondent No.2 was acquitted by granting benefit of
doubt. For the sake of convenience, facts are being taken from Crl. Appeal
No. 437-DB of 2001.
FIR No. 10 dated 9.1.1999 was registered against the
accused-appellants at Police Station Nuh for the offences punishable
under Sections 323, 325, 302 read with section 34 IPC on the basis of
statement made by Deenu (PW-1) to the effect that on 9.1.1999 at about
9.10 pm he along with his brother Akbar (since deceased) and Harun (son
of Deenu) were sitting together warming themselves in front of fire. When
Akbar was going to his house, accused-Ghasita, his son Akhtar Hussain
armed with Pharsa, accused-Jamil armed with kulhari and accused Yunus
armed with lathi reached there and told to teach a lesson for the fight
occurred day before yesterday. Ghasita gave a Pharsa blow on the head
of Akbar. Second blow was given by Akhtar Hussain with his Pharsa on his
head. Third blow was given to Akbar by accused-Jamil with his Kulhari on
his head. After receiving injures, Akbar fell down on the ground. Yunus
still gave lathi blows on the legs of Akbar and accused-Ghasita also gave
another Pharsa blow on his head. Ahmad (PW-2) tried to rescue Akbar
from the accused persons. Accused-Yunus gave lathi blows on the
shoulder and Hasli of Ahmad. Complainant-Deenu and Harun rescued
both the injured persons from the accused party otherwise they would have
Crl. Appeal No. 437-DB of 2001 (3)
given more injuries. After sending both the injured to the hospital,
complainant-Deenu went to the Police Station to report the matter, on the
basis of which FIR Ex. PA was registered. After registration of aforesaid
FIR, Sub Inspector/Station House Officer Daya Nand (PW-10) visited Civil
Hospital, Nuh and moved an application Ex. PE/1 to the Medical Officer
seeking opinion regarding fitness of injured Akbar for his statement.
Doctor vide opinion Ex. PE declared him unfit to make statement. Sub
Inspector Daya Nand then moved another application Ex. PF/1 to the
doctor for seeking his opinion for second injured Ahmad (PW-2) and doctor
declared him fit to make statement. After the fitness report, statement of
Ahmad (PW-2) under Section 161 Cr.P.C. was recorded. A ruqa was sent
to the Police Station by Doctor regarding admission of injured Akbar and
Ahmad in the hospital at 12 noon.
Dr. M.S. Ranga (PW-3) of CHC, Nuh, medico legally examined
Akbar and following injuries were found on his person:-
(1)Incised wound 2.5 cm x 2 cm x bone deep placed over the
scalp frontal region in the midline transversely with profuse
bleeding.
(2)Incised wound 4 cm x 2 mm x bone deep placed over the
frontal region of the scalp with profused bleeding placed just
paralled and behind the injury no.1.
(3)Incised wound 1 cm x .2 cm placed over the frontal region of
the scalp just lateral to injury no. 1 & 2 placed vertically with
profused bleeding.
(4)Incised wound 2 cm x .1 cm x bone deep placed over the
frontal region of the scalp just behind the injury no.3
anteroposteriorly.”
Xray of the skull was advised and Surgeon’s opinion was sought. Duration
of injuries were within six hours and kind of weapon used was sharp. Due
Crl. Appeal No. 437-DB of 2001 (4)
to the serious condition of Akbar, he was referred to Government Hospital,
Gurgaon, from where he was referred to Safdarjang Hospital, Delhi.
Dr. M.S. Ranga (PW-3) also medico legally examined Ahmad
(PW-2) and noted following injuries on his person:-
(1)Contused abrasion 2 x 3 cm placed over the right shoulder
joint. 7 cm lateral to joint line towards medial side i.e. in the
plane of mid clavicular line posterior aspect with bright red
colour and associated swelling with restriction of the joint
movements.
(2)Contusion 2 x 1 cm placed over the right hip joint lateral
aspect with no significance swelling of tenderness and no
restriction of movement.”
Injury No.1 was advised for X-ray and injury No.2 was simple. Both were
caused by blunt weapon within duration of six hours.
SI Daya Nand(PW-10) visited the place of occurrence and
prepared rough site plan Ex. PM. He picked blood stained earth from the
spot and sealed it in a parcel with seal ‘DN’, which were taken into police
possession vide memo Ex. PN. Blood stained clothes of Akbar produced
by Harun were also taken into police possession vide memo Ex. PO in a
sealed parcel. Condition of Akbar was serious and he was sent to Civil
Hospital, Gurgaon, from where he was referred to Safdarjang Hospital,
New Delhi. SI Daya Nand recorded DDR Ex. PU at about 5.40 pm and
converted the offence punishable under Section 307 read with Section 34
IPC.
On 11.1.1999, Akbar succumbed to his injuries in Safdarjang
Hospital, New Delhi. Complainant-Deenu recorded this fact with Police
Station Nuh, on the basis of which DDR Ex. PV at 4.00 pm was recorded
for conversion of offence punishable under Section 302 read with Section
34 IPC.
Crl. Appeal No. 437-DB of 2001 (5)
On receiving information regarding death of Akbar due to
injuries on his person, ASI Siri Niwas (PW-8) of Delhi Police, reached
Safdarjang Hospital, Delhi and prepared inquest report Ex. PL. He also
sent the dead body for post-mortem examination.
Doctor Chander Kant (PW-7) of Safdarjang Hospital, New
Delhi, conducted the post-mortem examination and found following injuries
on the person of the deceased-Akbar:-
(1)One transversly placed stitched wound on right fronto
temporal region. Total length 12 cm. Total number of
stitches 12. On removal of the stitches the wound was
partially surgical in nature.
(A) One incised wound on right fronto region at the
junction of frontal region with anterior aspect of right
parietal region size 3 cm x 1.3 cm x bone deep. Margins
were clean cut except at the places of stitches both
angles accute.
(B) One incised wound parallel to injury No. (a) size
2.1 cm x 1.4 cm x bone deep, both margins clean cut
except at the place of stitches.
Underneath right fronto-parietal bones were in
pieces in irregular shape and size, already removed in
an area of 8 cms x 5 cms.
2(c) One incised wound vertically placed middle of fronto-
parietal region 2.6 cm x 2 cm x bone deep.
3. Abrasion on back of left shoulder region size 4 cms x 3
cms.
4. Abrasions on occipital region left side size 2 cm x 1 cm.
5. Contusion left eye.”
During internal examination of the dead body, he noted following injuries:-
Crl. Appeal No. 437-DB of 2001 (6)
1. There was extravasation of blood under scalp in the frontal
both parietal and temporal, left occipital region, right
frontoparietal bone places already removed as described
above. Fracture of left frontal, left parietal, right temporal,
right frontal bones. Contusion and lacerations of under
surface, superior surface of right frontal, right parietal lobes.
Brain was 1480 gms. in weight, conjested and oedematous
with petechael haemorrhages. Intra medullary
haemorrhages present.
2. Both lungs were congested and oedematous.
3. Stomach was empty.
4. Liver kidneys and spleen were congested.
As per opinion of the doctor, death was within 48 hours and
the cause of death was shock and head injuries which were ante mortem in
nature. Injuries No.1, (B) and 2 (c) were caused by heavy cutting weapon
and other injuries by blunt force from blunt object. All the injuries were
sufficient to cause death in ordinary course of nature.
On 14.1.1999, SI Daya Nand (PW-10) arrested accused-
Yunus and Jamil, who produced their lathi Ex. P1 and Kulhari Ex.P2
respectively used in the crime, which were taken into police possession.
Accused-Ghasita was arrested on 20.1.1999 and on the basis of
disclosure statement made by him on 22.1.1999, blood stained Pharsa
used in the crime was recovered and taken into police possession.
Accused-Akhtar Hussain was found innocent in the
investigation by the police, who was reported to be present at the place of
occurrence.
After completion of investigation and necessary formalities,
accused-Ghasita, Jamil and Yunus were sent for trial for offences
punishable under Sections 302, 325, 323 read with section 34 of IPC,
Crl. Appeal No. 437-DB of 2001 (7)
placing the name of accused-Akhtar Hussain in the column No.2 of report
under Section 173 of Cr.P.C. The case was committed to the Court of
Additional Sessions Judge, Gurgaon. Accused-appellants were
chargesheeted under Sections 302, 323, 325 read with Section 34 IPC, to
which, they pleaded not guilty and claimed trial.
In order to prove the charges, the prosecution first examined
complainant/eye witness Deenu (PW-1). An application under Section 319
Cr.P.C. for summoning accused-Akhtar Hussain was filed to face trial along
with other accused persons, which was allowed vide order dated
2.11.1999. Accused-Akhtar Hussain filed Crl. Revn. No. 1458 of 1999 and
this Court vide order dated 29.11.1999 stayed further proceedings only qua
Akhtar Hussain. Proceedings against other accused persons were not
stayed. Out of three, two accused persons were in custody and further
proceedings in the trial against them were taken by the trial Court.
The prosecution examined complainant/eye witness-Deenu
(PW-1), injured eye witness Ahmad (PW-2), Dr. M.S. Ranga (PW-3),
Draftsman Constable Sarwan Kumar (PW-4), Head Constable Sunil Dutt
(PW-5), Constable Raj Kumar (PW-6), Dr. Chander Kant (PW-7), ASI Siri
Niwas (PW-8), Head Constable Hari Kishan (PW-9) and SI Daya Nand
(PW-10). However, prosecution gave up PW Harun, Abdul Rashid,
Mozam Khan, Rati Mohd. And Fattu being unnecessary.
After closure of prosecution evidence, statements of accused-
appellants under Section 313 Cr.P.C. were recorded, wherein, they denied
every circumstance appearing against them and pleaded innocence. It
was also stated by them that they were in illegal custody of the police since
13.1.1999 and had falsely been implicated in this case due to party faction
in the village and on account of their old enmity.
In defence, accused-appellants tendered Ex. DB certified copy
of complaint of accused-Ghasita against deceased Akbar, PW Harun and
Crl. Appeal No. 437-DB of 2001 (8)
others for offence punishable under Sections 379, 380, 411, 406, 407, 452,
120-B, 506 427 and 403 IPC, for illegal cutting and removal of 13 trees
belonging to the Panchayat; Ex. DC copy of pedigree table to show that
PWs Deenu and Ahmad are colaterals related to each other by 4th degree
and Ed. PD certified copy of statement of Ghasita as prosecution witness in
trial “State Vs. Tundal etc.” under Section 304 IPC.
The trial Court after hearing both the parties and perusing the
evidence available on record convicted accused-appellants Mohd. Yunus,
Modh. Jamil and Ghasita for offence under Sections 302 and 323 read with
Section 34 IPC and were acquitted of the charge framed under Section 325
IPC. However, accused-Akhtar Hussain was acquitted by the trial Court
by giving benefit of doubt.
Mr. R.S. Rai, learned senior counsel for the accused-
appellants argued that the FIR is ante-timed and the delay has been used
to cover up the time gap. FIR was recorded at about 11.00 am and as per
medical record, the injured arrived in the hospital at noon. As per
statement of Deenu (PW-1) he reached the Police Station after getting the
injured admitted in the hospital. The delay in registration of the FIR is the
result of consultations and deliberations.
It is also the argument of learned counsel for the accused-
appellants that the conviction of the accused-appellants has been based on
testimony of interested witnesses, who are closely related to the deceased
and their statements do not inspire confidence. Ahmad and Deenu are
closely related to each other being collaterals to the 4th degree and Deenu
is the real brother of the deceased. The prosecution has failed to examine
the independent witnesses, namely, Harun and Deenu S/o Kalu, in whose
house eye-witness and deceased were earlier warming themselves before
fire. The presence of Deenu (PW-1) at the spot is also doubtful as Ahmad
(PW-2) in his statement made under Section 161 Cr.P.C. did not mention
Crl. Appeal No. 437-DB of 2001 (9)
that Deenu was present at the spot and his clothes were not smeared with
blood of deceased-Akbar. As per statement of Deenu (PW-1) and Ahmad
(PW-2), Deenu lifted Akbar in an injured condition and put him in the
tractor. As per statement of Deenu, his clothes were not smeared with
blood inspite of the fact that he lifted the injured person. Similarly, Ahmad
(PW-2) has stated that their clothes were slightly smeared with blood of
Akbar. There is no consistency in the statements of Deenu (PW-1) and
Ahmad (PW-2). Not only this, there are discrepancies and contradictions
in their statements but their statements are self-contradictory also. As per
statement, Ahmad (PW-2) received two lathi injuries on his shoulder which
were given by Yunus whereas as per FIR Yunus had given one lathi blow
on his right ‘shoulder’ and another on his ‘hasli’. As per medical evidence,
he received two injuries on his right hip joint lateral aspect. As per opinion
of the Doctor that injury on his shoulder could be self-suffered or could be
suffered with friendly hand.
Mr. Rai further argued that accused-Yunus has been attributed
only simple injuries on the legs of deceased-Akbar and on the shoulder and
hasli of injured-Ahmad, for which at the most it can be a case punishable
under Section 323 IPC.
Mr. H.S. Sran, learned Additional Advocate General,
appearing for the State of Haryana has argued that the prosecution has
fully proved its case beyond reasonable doubt and it is a case of eye
witness account. Minor discrepancies and contradictions in the statements
of prosecution witnesses are bound to occur due to passage of time. The
ocular evidence has also been corroborated by medical evidence.
We have heard learned counsel for the parties and have also
gone through the evidence and other documents available on record.
The argument of learned counsel for the accused-appellants
that there is a delay in registration of FIR and the same has been used for
Crl. Appeal No. 437-DB of 2001 (10)
consultations and deliberations, has no force as the place of occurrence
i.e. village Tai, which was at a distance of about 4-5 Kms from police
station. Complainant-Deenu reached to police station at about
10.30/11.00 am and remained with the police for about half an hour. The
hospital was also adjoining to police station and the injured remained in the
hospital for about 15-20 minutes. It has also come in the evidence of
Deenu (PW-1) that he reached to the Police Station after getting the injured
admitted in the hospital. As per record of the hospital, the injured arrived in
the hospital at noon. Immediately thereafter complainant-Deenu went to
the police station to register the FIR. The statement recorded is prompt
and without any delay. It cannot be said that the FIR was ante-timed.
Moreover, the FIR was got recorded for minor offences i.e. under Sections
323, 324 read with Section 34 IPC, which was later on converted to Section
302 IPC. This view has been supported by the judgment of Hon’ble the
Apex Court in Gurnam Kaur Vs. Bakshish Singh and others 1981
Criminal Law Journal 34, wherein, it has been held that when FIR is
prompt, medical and expert evidence fitting in with version given in the
FIR, then implicit reliance should be placed on it.
The next argument of the learned counsel for the accused-
appellants that there are contradictions and discrepancies in the
statements of prosecution witnesses, has also no substance as the same
are minor in nature, which are bound to occur with the passage of time.
Minor discrepancies here and there do not materially affect the reliability
and trustworthiness of the witnesses. Ahmad (PW-2) is the stamp injured
witness. Injuries on his person cannot be said to be self-suffered or with
friendly hands. Two injuries were there on his person, which are as under:-
1. Contused abrasion 2 x 3 cm placed over the right
shoulder joint. 7 cm lateral to joint line towards medial
side i.e. in the plane of mid clavicular line posterior
Crl. Appeal No. 437-DB of 2001 (11)aspect with bright red colour and associated swelling
with restriction of the joint movements.
2. Contusion 2 x 1 cm placed over the right hip joint
lateral aspect with no significance swelling or
tenderness and no restriction of movements. X-ray
was advised for injury No.1 and injury no.2 was found
simple.
Injury No.1 was x-rayed and as per opinion of the Doctor, it
was a fracture in specular body and spine right shoulder giving rise to the
conversion of the FIR for offence punishable under Section 325 read with
Section 34 IPC. The injuries suffered by Ahmad (PW-2) at the time of
occurrence has established the occurrence.
The further argument of learned counsel for the accused-
appellant that Ahmad (PW-2) and Deenu (PW-1) were closely related to
the deceased and their statements cannot be relied upon, is also not of
much importance. As per case of the prosecution, prior to the occurrence,
complainant-Deenu (PW-1) and his brother Akbar (deceased) and his son
Harun were sitting together before the fire for warming themselves and
when Akbar was going to his house, all the accused-appellants armed with
their respective weapons reached there and caused injuries to Akbar.
Their presence at the spot was natural as it was month of January and it is
a normal practice in the village that in winter people sit before the fire to
warm themselves. Their presence at the spot was not unnatural and as
such their testimony cannot be disbelieved.
Argument of learned counsel for the accused-appellants that
accused-Yunus has only been attributed simple injuries to deceased-Akbar
and injured Ahmad and he can at the most be convicted under Section 323
IPC, is of some substance. As per the FIR, accused-Yunus gave lathi
blows on the legs of deceased-Akbar and on the shoulder and Hasli of
Crl. Appeal No. 437-DB of 2001 (12)
injured-Akbar. As per opinion of Dr. M.S. Ranga (PW-3), possibility of
injury No.1 on the person of Ahmad having been caused by a fall on a hard
uneven surface cannot be ruled out. Accused Yunus was only armed with
lathi and caused injuries to deceased-Akbar as well as injured Ahmad,
which were not proved to be fatal and caused death of Akbar.
For the reasons mentioned above, we are of the view that
accused-Ghasita and Mohd. Jamil have rightly been convicted and
sentenced by the trial Court for the offence punishable under Section 302
read with Section 34 IPC. As far as accused-Yunus is concerned, he has
only been attributed simple injuries, therefore, his conviction under Section
302 IPC is set aside and he is convicted under Section 323 IPC and
sentenced for the period already undergone by him. He shall also pay
compensation of Rs. 15,000/- as per provisions of Section 357 Cr.P.C. to
the legal heirs of deceased-Akbar.
Accordingly, appeal qua Ghasita and Mohd. Jamil is
dismissed. They are directed to surrender to custody to serve the
remainder of sentence. Appeal qua accused-Yunus is allowed partly. He is
acquitted of the charges framed against him under Section 302 IPC and
convicted under Section 323 IPC and sentenced for the period already
undergone.
Crl. Revn. No. 418 of 2005 filed by the complainant is
dismissed.
(DAYA CHAUDHARY)
JUDGE
October 26, 2009 (JASBIR SINGH)
pooja JUDGE
Note:-Whether this case is to be referred to the Reporter …….Yes/No