Criminal Appeal No.9-SB of 1998 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.9-SB of 1998
Date of decision : 3.12.2008
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Partap Singh and others .....Appellants
Versus
The State of Haryana ...Respondent
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CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. R.K.Handa,Advocate for the appellants.
Mr. S.S.Mor, Senior Deputy Advocate General, Haryana
Mr. Kapil Aggarwal, Advocate for the complainant.
S. D. ANAND, J.
The appellants( Partap Singh, Phool Chand, Dinesh, Hans Raj
and Rohtash son of Hari Ram) were convicted by the learned Trial Judge
for the offences under Sections 147, 148 IPC and 323, 325 read with
Section 149 IPC; while appellants (Sarjit and Mool Chand ) were convicted
for the offences under Sections 147, 148 IPC and 323, 325, 307, read with
Section 149 IPC. All the appellants/accused were sentenced to undergo
rigorous imprisonment for one year under Section 148 IPC, six months RI
for the offence under Section 323 IPC and two years RI and a fine of
Rs.2000/- each for offence punishable u/s 325 IPC. In case of a default in
the payment of fine, all the accused were ordered to undergo further
imprisonment for one month. Learned Trial Judge also sentence accused
Sarjit Singh and Mool Singh to RI for a period of five years and a fine of
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Rs.5000/- each under Section 307 read with Section 149 IPC. In default of
the payment of fine, those two accused were ordered to undergo further
imprisonment for a period of three months.
The prosecution presentation, at the trial, was as under:-
Truck bearing registration No.RRB-3065, of which PW-2
Omkar was the registered owner, was attached with the truck operators
union, Nangal Chaudhary. A meeting of registered owner of the trucks
attached with that union was held in the month of Sawan/Bhado of the year
1990. PW-2 Omkar and four others, namely, Man Singn, Abhey Singh,
Partap Singh and Jagbir Singh were elected by the union as their
representatives. Besides it, Omkar was elected as Pardhan of the union.
For few days, the union were proceeded smoothly. However, in the
second meeting of the union, Partap Singh appellant made a suggestion
that there should be enhancement of the freight rate. That proposal was
shot down by majority. After the meeting was over, Omkar was sitting in a
field in front of the office of truck union in the company of Jagbir, Balbir,
Abhey Singh, Amar Singh, Ram Chander, Hazari and one Ishwar Singh
(who has since died). Appellant Partap Singh, accompanied by the other
appellants, came over there. At that time, appellant Sarjit was armed with
an iron rod; while other appellants were armed with a Lathi each.
Appellant Moola Ram declared that they were around to teach Omkar a
lesson for not allowing the freight rate to be enhanced. Omkar went over
to the protesting appellants and tried to reason it out with them. Appellant
Moola Ram gave a lathi blow each on the head and right hand of Omkar,
who, on sustaining those injuries, fell down upon the ground and became
unconscious. The other appellants, thereafter, caused injuries to Ishwar,
Amar Singh, Ram Chander, Hazari and Abhey Singh. Jagdish and Balbir
Singh rescued them and removed them to Primary Health Centre, Nangal
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Chaudhary where they were medico-legally examined. From there, three
out of them ( Ram Chander, Amar Singh and Hazari), who had sustained
grievous injuries, were referred to General Hospital, Narnaul.
The offence was notified to the police by PW-2 Omkar, vide
his statement Ex. PB.
PW-1 Pehlad Sharma, a Draftsman practising at Narnaul, had
inspected the spot on 15.9.1990 and had prepared scaled site plan Ex.
PA, on the police request, on the pointing of Jagbir and Ishwar Singh.
PW-2 Omkar is the first informant/injured witness. Besides
him, PW-4 Amar Singh, PW-7 Abhey Singh, PW-10 Ram Chander and
PW-11 Hazari are also injured Pws/eye witnesses.
PW-3 Dr. Viney Chaudhary, had radiologically examined the
injuries on the person of Ram Chander, Amar Singh and Abhey Singh
( from the complainant side) and also Mool Singh and Sarjit Singh out of
the appellants. The following fractures were found on the person of Ram
Chander:-
“1. Fracture of right olecranon process of ulna.
2. Fracture of lower end of right fibula.
3. Fracture of 2nd metacarpal of left hand.
4. Fracture of shaft of left ulna and lower end of radius.”
A fracture of Nasal bone was found on the person Amar
Singh.
Fractures of comminuted fracture of left tempro parietal and
left frontal bone were found on the person of Hazari.
Fracture of lower shaft right radius was found on the person of
Abhey Singh.
Insofar as the appellants Mool Singh and Sarjit are concerned,
no bony injury was found on their person. They, too, had otherwise been
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examined on the request of the police.
PW-5 HC Rawat Singh recorded the formal FIR Ex. PB/1, on
receipt of ruqqa Ex. PB.
PW-6 HC Dilbag Singh had attested memo Ex. PG vide which
appellant Mool Chand had got recovery of iron rod effected from behind
the bushes near lime-kiln.
PW-8 Dr. S.R.Dharkar had examined Hazari Lal injured (who
remained hospitalised after 6.9.1990) on 26.8.1990, he, during the period
of hospitalisation, was operated upon on 30.8.1990 for depressed fracture
left parietal and extra dural haemotoma.
PW-9 Dr. Vimal Sardana had operated upon Hazari Lal who
had compound depressed fracture with underline extra dural haemotoma
in left parietal region.
PW-12 HC HC Rohtash had partly investigated this case
inasmuch as he had recorded the statements under Section 161 Cr.P.C.
Of Amar Singh, Ram Chander and Hazari.
PW-13 Inspector Udai Singh had investigated this case.
PW-14 Dr. Vijay Bansal had medico-legally examined Hazari,
Amar Singh and Ram Chander and found the following injuries on their
person:-
Hazari Lal:
1. 1.5 x 0.2 cm lacerated wound on the temporoparietal bone 5
cm above the left ear. Bleeding was present. Bone was
exposed. Wound was horizontal in direction and x-ray was
advised.
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2. 0.5 x 0.5 cm reddish skin abrasion over the centre of the
occipital bone. Swelling all around was present. X-ray was
advised.
Amar Singh:
1. Lacerated wound 15 cm x 0.5 cm on the temporoparietal
bone of the right side 5 cms above the ear. L-shape
bleeding was present. X-ray was advised.
2. 4 x 0.5 cm lacerated wound above the left eyebrow,
bleeding was present. Muscles were exposed. X-ray was
advised.
3. 3cm x 0.5cm skin abrasion horizontal over the lower portion
of sternum. X-ray was advised.
4. Skin abrasion over the left shoulder joint 3 x 1.5 cm slightly
on the medial side. X-ray was advised.
5. Swelling on the left lower arm in the middle. Over it 1.5cm x
.5cm skin abrasion. X-ray was advised.
6. .5 x .1 cm lacerated wound over the bridge of nose. Lateral
surface on the left side, slight swelling of nose was present.
Bleeding was present.
Ram Chander:
1. 1 cm x .3 cm x .3 cm lacerated wound on the posterior
surface of right elbow joint. Oblique. Bleeding was present.
2. 1 cm x .1 cm oblique lacerated wound over the left side of
parietal bone, 8 cms above the left ear. X-ray was advised.
3. 3 cm x .2 cm lacerated wound over the lateral surface left
ear lobule. Cartilage was exposed.
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4. Swelling of the right ankle joint alround. No external injury
was seen. Movements were tender. X-ray was advised.
5. 1 cm x .5 cm lacerated wound on the dorsal surface of left
index finger base. X-ray was advised.
6. Swelling of left wrist joint. No external injury was seen. X-
ray was advised.
7. Swelling of left forearm in the middle. There was slight
disfigurement 1 cm x .5 cm skin abrasion was over it. X-ray
was advised.
8. .3 x .3 cm reddish skin abrasion over the lateral aspect of
left elbow joint. Swelling was all around. X-ray was advised.”
He had further opined that injuries no. l and 2 on the person of
Hazari were dangerous to life.
PW-15 Dr. Nirmala Bishnoi had medico legally examined
Omkar, Ishwar Singh, Abhey Singh and Sarjit and found the following
injuries on their person:-
Omkar:-
1. A lacerated wound over the parietal region left side about
10.5 cm and 1.2 cm bleeding was present. The edges were
irregular and the direction was longitudinal. X-ray was
advised.
2. Abrasion was over the right forearm middle 1/3rd 7 cm x 1
cm. Slightly bleeding was present on dorsal side.
3. An abrasion over the right hand dorsal side .5 cm x .2 cm.
Redness was present.
Ishwar Singh:
1. Lacerated wound on the right eye 1 cm x 2 cm laterally
slight bleeding was present.
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2. Lacerated wound on the left eye 2.5 cm x .2 cm laterally.
Bleeding was present.
3. Bruise mark on the right thigh anterio-laterally 12 cm x 5 cm.
Redness was present on the upper 1/3rd of thigh.
4. Bruise mark on the left thigh front side upper 1/3rd region 6
cm x 3 cm in size. Redness was present.
Abhey Singh:
1. Swelling was present on the lower 1/3rd of right forearm.
Tenderness was present. X-ray was advised.
Sarjit:
1. One incised wound on skull right side of parietal region
longitudinal about 6 cm x .6 cm moderate bleeding was
present. Edges were regular. Depth 1 cm. Advised X-ray of
skull.
2. Complaint of pain on occipital region, Protuberans.
Tenderness present. Advised X-ray skull.
She had also examined Mool Singh and Rohtash son of Hari
Ram appellant on that very day and had found the following injuries:-
Mool Singh:-
1. An incised wound on skull parietal region left side
horizontally about 7 cm x .8 cm and 0.8 cm in depth. Edges
were regular. Moderate bleeding was present. X-ray of
skull was advised.
2. Complaint of pain on left forearm middle 1/3rd swelling was
present. Advised x-ray left forearm.
Rohtash:
1. One lacerated wound on right foot dorsal side at second and
third metacarpal bone about 3 cm x .6 cm. Bleeding was
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present. Edge regular.
2. One abrasion mark on forehead just above the eyebrow
about 3 cm x .8 cm. Bleeding was present.
PW-16 Dr. Sanjeev Dua had examined Hazari Lal on
24.8.1990.
Appellant Sarjit denied the prosecution allegation and alleged
false implication by averring in the course of his statement under Section
313 Cr.P.C.:-
“I am innocent. The real facts are that myself, Partap Singh
and Mool Singh my brothers and my father Megh Singh as
well as complainant party used to carry transport business.
The complainant party used to put obstacles in our transport
business. My father Megh Singh had filed an injunction suit
against the complainant party not to create hindrances in our
business. The civil court had granted temporary injunction
against the complainant party and they had grouse against us.
On 19.08.1990 Subhash son of Mahada Ram and Ram Niwas
son of Ram Kumar went to Mool Singh and asked him to take
their buffaloes from their village Bhojawas to Jobener in truck
No.HYD-1577. On the same day at about 5 p.m. Mool Singh
went to village Bhojawas with his truck No.HYD-1577. I and
Rohtash accompanied him. When the buffaloes were being
loaded in the truck, Omkar, Ram Chander, Hazari, Man Singh,
Abhey Singh, Bhoop Singh, Amar Singh, Jagbir, Ramesh,
Suresh and Attar Singh reached there in truck No.HYL-4575.
All of them asked Mool Singh not to carry buffaloes from there
and started giving him fists and slaps. The glasses of truck
No.HYD-1577 were damaged. On the same day, at about 6
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p.m. Mool Singh, I myself and Rohtash accompanied by RamNiwas and Subhash reached Nangal Chaudhary on their way
to Jobner when Man Singh etc. stopped Mool Singh’s truck by
placing their truck in front of his truck. Moll Singh was
dragged out of the truck. Jagbir and Omkar caught hold of
Mool Singh. Man Singh inflicted a Pharsi blow on his head.
Ram Chander gave a lathi blow on his head, Amar Singh gave
a lathi blow on his head. When I tried to intervene, Hazari
inflicted Kulhari blow on his head. Bhoop Singh and Abhey
Singh caused injuries to me with their lathis. When Rohtash
conductor tried to save me, Ramesh, Suresh and Attar Singh
caused injuries to me with their lathis. The occurrence was
witnessed by Ram Niwas, Subhash, Partap, Ishwar Singh and
Surja Ram. The injured were taken to PHC Nangal
Chaudhary where they were medico-legally examined. The
police under the influence of complainant party did not take
action against the culprits and hence the complaint was filed
by Mool Singh etc. against the culprits in court which is still
pending in the court of the Chief Judicial Magistrate, Narnaul.
Hari Ram, Rohtash son of Bhola Ram, Lal Chand, Dinesh,
Phool Chand, Tek Chand, Hans Raj, Hanuman and Megh
Singh were not present at the spot. Balbir Singh PW was also
not present. It is a false case and I am innocent.”
The similar plea has also been taken by appellants Mool Singh
and Rohtash son of Hari Ram.
Appellants Hari Ram, Hans Raj, Rohtash son of Hari Ram,
Phool Chand and Dinesh raised plea of alibi.,
Appellants did not adduce any evidence in defence.
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Insofar as the prosecution presentation is concerned, it was
testified on oath by PW-2 Omkar/first informant and also by PW-4 Amar
Singh, PW-7 Abhey Singh, PW-10 Ram Chander and PW-11 Hazari
injured PWs. Each one of them detailed the sequence of events, starting
from the controversy about the enhancement of freight rate and
culminating in the belabouring of the injured PWs at the hands of the
appellants.
Learned counsel for the appellants argues in favour of the
invalidation of the impugned finding of indictment by pointing out that the
prosecution had not been able to fix the identity of the appellants as the
perpetrators of the crime in view of the fact that no Test Identification
Parade was held. He further argues that the prosecution has not been
able to prove on record any motive which could have actuated the
appellants to belabour the injured PWs. Yet another plea, argued in the
alternative, is that it were injured PWs who opened an attack upon some of
the members of the appellants party who were available at the spot. The
plea in the context, is that the appellants Mool Chand and Sarjit acted in
self-defence and that Appellants Hari Ram, Hans Raj, Rohtash son of Hari
Ram, Phool Chand and Dinesh were not at all present at the spot and they
have been roped in falsely.
Insofar as the plea on point of non holding of the Test
Identification Parade is concerned, it is to be merely noticed to be
negatived. The parties belong to the same village, It is not the plea of
either side that they participated in the impugned occurrence under a
mask. In that view of things, it is illogical for the appellants to raise a plea
of acquittal just because a Test Identification Parade was not held. Even
otherwise, it must be noticed that Test Identification Parade is only one of
the methods adopted to buttress the prosecution presentation. An
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otherwise validly proved prosecution plea cannot be thrown out just
because a Test Identification Parade had not been got held, particularly
when the parties to the impugned prosecution were not in the know of each
other’s identity, being village mates.
It is neither here nor here for the appellants to argue that the
prosecution had not been able to prove any motive on the part of the
appellants to belabour the members of the complainant party. Omkar and
other injured PWs have categorically testified at the trial that appellant
Partap Singh whose proposal for enhancement of freight rates was shot
down by majority, was nursing a grievance against first informant and
other injured PWs who belong to the group of Omkar PW. The existence
of groupism in the truck union is not a foreign phenomenon. That being
so, the plea advocated on behalf of the appellants shall stand rejected, It
requires pertinent notice that the members of the complainant party, who
too were prosecuted by the appellants in a cross case, stand acquitted and
no appeal has come to be preferred against the order of acquittal in their
favour.
Learned counsel for the appellants, then, argues that
appellants Hari Ram, Hans Raj, Rohtash son of Hari Ram, Phool Chand
and Dinesh were not even available at the spot at the time of impugned
occurrence and they have been framed only because of their association
with the appellant party.
The appellants aforementioned have not been able to adduce
acceptable evidence on file to prove that they were not available at the
spot at the relevant point of time. It was for those appellants to indicate
their whereabouts at the time of impugned occurrence had taken place.
Though the prosecution cannot be absolved of the responsibility to prove
the charge against the appellants, it has to be noticed that the plea of alibi
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had to be proved by the concerned appellants themselves. If those
appellants were so inclined, they could have opted (in their own discretion)
to enter the witness box and disclose where exactly they were at the time
of impugned occurrence had taken place. The mere fact they did not
sustain any injuries in the course of impugned occurrence, is not sufficient
to warrant that they were not available at the spot at the relevant point of
time. It would not be out of place to make here a mention of the fact that
only Mool Singh and Rohtash had sustained injuries on their person that
too were simple in nature. As against it, a fairly large number of injuries
were found on the person of members of the complainant party and injuries
found on the person of Ram Chander, Amar Singh, Hazari and Abhey
Singh totalled as many as eight fractures.
No other point was argued.
In the light of the foregoing discussion, I find no reason to
invalidate the finding of conviction recorded by the learned Trial Judge.
However, insofar as the appellants Partap Singh, Phool Chand, Dinesh,
Hans Raj and Rohtash son of Hari Ram are concerned, they were
convicted for the offences under Sections 147, 148 IPC and 323, 325
read with Section 149 IPC. In view of the fact that they faced the ordeal of
trial/appeal since the year 1990, I am of the opinion that interest of justice
would be served if the benefit of reformatory provisions of the Probation of
Offender Act is given to them. The order on point of sentence qua them
shall stand set aside. They shall stand released on on probation for one
year on their furnishing bond in the sum of Rs.10,000/- with one surety in
the like amount, for a period of one year to appear and receive sentence
whenever called upon during this period and, in the meantime, to keep the
peace and be of good behaviour.
Insofar as the appellant Surjit Singh and Mool Singh are
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concerned, both of them have been proved have to participate in the
impugned occurrence while the former was armed with an iron rod and
latter was armed with a lathi. The evidence available on the file is,
however, not sufficient to uphold the finding of conviction under Section
307 IPC. That finding proceeds upon the statement made by PW-14 Dr.
Vijay Bansal. However, in the course of the cross-examination, he
conceded that “I had given my opinion Ex. PKK/1 on the basis of the x-ray
report mentioned in the police application. I had not seen the x-ray report
myself.” It is apparent that the X-ray report and x-ray films were not
available when Dr. Vijay Bansal gave the opinion aforementioned. The
reliance placed by Dr. Bansal upon the contents of the police plea in the
relevant behalf would not appear to be in order. The conviction recorded
against Mool Singh and Sarjit Singh under Section 307 IPC shall stand set
aside. They shall stand convicted for the offence under Section 326 IPC.
In view of the fact that the appellants Surjit Singh and Mool
Singh faced the ordeal of trial/appeal since 1990, the sentence awarded to
them is reduced to rigorous imprisonment for a period of three years.
The appeal shall stand disposed of accordingly.
December 03, 2008 (S. D. ANAND) Pka JUDGE