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2000 DIGILAW 1058 (PNJ)

Ishwar v. State Of Haryana

2000-09-04

A.S.GARG, HARJIT SINGH BEDI

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Judgment Harjit Singh Bedi, J. 1. This appeal arises out of the following facts. 2. On November 21, 1992 at about noon time, Sher Singh (PW-1) his daughter Sunita (PW4) and son Basti Ram (PW-5) had gone to irrigate their crop from the tube-well of Banarsi taking the water through a plastic pipe along the killa line of the land belonging to the accused. At about noon time, Balbir accused armed with a Bankri (a kind of a gandasi) Ex. P-4, Rajender and Ishwar his co-accused both armed with Jailies, Exhibits P-3 and P-5, appeared on the scene and asked Sher Singh as to why he was taking water over the boundary of their field. Sher Singh replied that there was no other way through which the water could be taken. On this, Ishwar abused him and threatened to teach him a lesson and thereafter gave him a Jaily blow on his head; followed by a similar blow by Rajender accused, which hit him on his right hand. Basti Ram and Sunita made an attempt to rescue their father on which Balbir accused gave a Bankri blow which hit Sunita on her head whereas Rajender gave a jaily blow thrustwise to Basti Ram which hit him on his chest. Meanwhile, Satpal accused also appeared on the scene armed with a Jaily and gave a blow with it on the head of Basti Ram. Sher Singh, Basti Ram and Sunita fell on the ground where they were given further blows. On hearing the noise, Ram Karan son of Banarsi and Banarsi son of Kishan Lal, who were present at their tube-wells, appeared on the scene and rescued them. Sher Singh and the others then started running towards the village closely followed by the accused. The accused, however, saw Chandro wife of Sher Singh, coming towards the fields carrying lunch for her husband and her children. She was being followed by Kamla wife of Satpal accused and Savitri wife of Rajender accused armed with a Bankri and a Lathi respectively. Accused Balbir gave a Lalkara that Chandro should not be allowed to go alive and gave a Bankri blow on her head whereas the other accused also caused blows to her with their weapons on which she too fell down. The accused then ran away from the spot. Accused Balbir gave a Lalkara that Chandro should not be allowed to go alive and gave a Bankri blow on her head whereas the other accused also caused blows to her with their weapons on which she too fell down. The accused then ran away from the spot. Sher Singh, Basti Ram and Sunita soon reached the place where Chandro lay fallen and took her in a tractor trolley to the Primary Health Centre, Kosli, where she was declared to be dead on arrival. Basti Ram was referred to the General Hospital, Rewari whereas Sunita and Sher Singh were medico-legally examined at Kosli itself. Information with regard to the arrival of the injured in the hospital was sent to the Police Post, Kosli, on which ASI Kuljeet Singh, PW-12, visited the Health Centre and recorded the statement of Sher Singh (PW-1) at 4.50 p.m. and on its basis the formal F.I.R. was recorded at 5.30 p.m. in Police Station, Jatusana; with the special report being delivered to the Illaqa Magistrate at Rewari at 11.00 p.m., the same night. The police officials thereafter visited the two venues of the incident and made the necessary investigations and also sent the dead body for the post-mortem examination. Accused Balbir, Rajender and Ishwar surrendered in Court and were duly handed over to the police whereas Kamla and Savitri were subsequently arrested. Balbir, Ishwar, Rajender and Satpal, who too had been arrested in the meanwhile, were interrogated and on the basis of their disclosure statements, the various weapons of offence allegedly used by them were recovered. 3. On the completion of the investigation, the accused were charged for having committed offences punishable under Sections 302/323/324/34 of the Indian Penal Code and as they pleaded not guilty were brought to trial. 4. The prosecution in support of its case examined 18 witnesses in all; the material ones being PW-1 Sher Singh, the complainant, PW4 Sunita and PW-5 Basti Ram, all three injured eyewitnesses; PW-2 Sumer Singh, whose land holding was close to the place of occurrence and was also be an eyewitness; PW-6 Dr. Piyoosh Malik, who had radiologically examined Basti Ram but had found no fracture on his body; PW-9 Dr. Ravinder Nath, who had medico-legally examined Sher Singh and Sunita, PWs. and had found two and six injuries on their persons respectively; PW-14 Dr. Piyoosh Malik, who had radiologically examined Basti Ram but had found no fracture on his body; PW-9 Dr. Ravinder Nath, who had medico-legally examined Sher Singh and Sunita, PWs. and had found two and six injuries on their persons respectively; PW-14 Dr. R. Leekha, who had conducted the postmortem examination on the dead body and had found six injuries on it and had opined that the cause of death was the head injury, which was sufficient to cause death it the ordinary course of nature; PW-15 Dr. A.L. Bajaj, who had medico-legally examined Basti Ram, PW, and had found 5 injuries on his person and Rajender and Balbir accused with six injuries and four injuries respectively; PW-16 Constable Mahesh Kumar, who had taken the special report to the Illaqa Magistrate; PW-17 Lal Singh, a witness to the recovery of the weapons; and PW-18 Sub Inspector Gulshan Lal, one of the Investigating Officers. 5. The statement of the accused under Section 313 of the Code of Criminal Procedure were recorded. Balbir, Ishwar and Rajender pleaded that they had inflicted the injuries on the opposite party in self-defence whereas the other accused denied the prosecution version and pleaded that they had not been present at the spot at the time of occurrence. They too examined Dr. R. Leekha as DW-1, who deposed that he had medico-legally examined the three accused on November 24, 1992 and had found several injuries (all simple) on their persons. 6. The trial Court concluded that from the evidence of the eyewitnesses, three of whom had been injured, the prosecution case had been proved beyond doubt. It was rther held that even assuming that there had been some delay in the lodging of the I.R. and the delivery of the special report, the same stood explained. The Court also held that the injuries on the persons of the three accused stood explained as in the F.I.R. recorded at the instance of PW-1 Sher Singh, it had been clearly stated that his party too had caused injuries to the accused in self-defence and that PW-5 Basti Ram had also stated that he had wielded a strick to save himself and might have caused injuries to some of the accused. The Court also found that the prosecution story that the complainant party was irrigating their fields from the tube-well of Banarsi with the help of plastic pipes and the fact that the incident had happened in two parts; first in the fields where the witnesses had suffered injuries and thereafter closer to the village in which Chandro had been killed stood proved on record and the assertion of the complainant that the entire incident had taken place in the middle of the field belonging to the accused could not be believed and for arriving at this conclusion, the Court observed that the evidence of PW-18 Sub Inspector Gulshan Lal was categoric when he had stated that blood-stained earth had also been picked up from the place where Chandro had been caused injuries. The Court finally held that the eye witness account had been supported by the medical evidence and accordingly convicted the accused under Sections 302/323/324/34 of the Indian Penal Code and sentenced them as under : Under Section 302/34 of the IPC. to undergo imprisonment for life and to pay a fine of Rs. 2000/- each and in default of payment of fine to undergo further rigorous imprisonment for a period of one year Under Section 323/34 of the IPC. to undergo rigorous imprisonment for one year; Under Section 324/34 of the IPC. to undergo rigorous imprisonment for one year 7. All the sentences were, however, ordered to run concurrently. 8. Hence this appeal. 9. Mr. R.S. Ghai, the learned Senior counsel representing the accused, has first and foremost argued that from the evidence, it appeared that the entire incident had happened in the field and not in two parts as suggested by the prosecution and as such the very genesis of the incident had been changed by the prosecution. He has urged that even from the prosecution evidence it appeared that Satpal accused had reached the place of the first incident after the injuries had been caused to the three injured witnesses by Ishwar, Balbir and Rajender and as such, his involvement was doubtful. He has further argued that the prosecution evidence involving Savitri and Kamla too was not worthy of belief as there was no evidence on record to show as to how and why these two women had suddenly reached the place of the second incident involving Chandro. He has further argued that the prosecution evidence involving Savitri and Kamla too was not worthy of belief as there was no evidence on record to show as to how and why these two women had suddenly reached the place of the second incident involving Chandro. It has also been submitted that the prosecution had tendered no cogent explanation for the injuries on the persons of Balbir, Ishwar and Rajender accused and in this view of the matter, the plea of self-defence put by them was liable to be accepted. It has finally been urged that in any case, the involvement of all the accused in the murder of Chandro with the aid of Section 34 of the Code was not justified on the basis of the evidence on record. 10. Mr. Ram Avtar Singh, the learned Additional Advocate General, Haryana, has, however, pointed out that the prosecution evidence rested on the evidence of three injured witnesses, Sher Singh being the husband of Chandro and Basti Ram and Sunita her children. He has further urged that in the F.I.R. it self Sher Singh (PW-1) and Basti Ram (PW-5) in his evidence had clearly stated that they too had caused injuries to some of the members of the accused party in self-defence in the fields at the time of the first incident. He has also argued that the involvement of all the accused with the aid of Section 34 of the Code was fully justified as all the accused had shouted out that Chandro should be done to death before they had made an attack on her. 11. We have considered the arguments advanced by the learned counsel for the parties. 12. It will be seen that the entire incident had taken place in two parts. The first incident took place in the fields were Sher Singh, Basti Ram and Sunita had been irrigating their fields with water taken from the tubewell of Banarsi. In this incident, the three witnesses received simple injuries at the hands of Balbir, lshwar and Rajinder and also Satpal, who had come to the scene at a slightly later stage. The first incident took place in the fields were Sher Singh, Basti Ram and Sunita had been irrigating their fields with water taken from the tubewell of Banarsi. In this incident, the three witnesses received simple injuries at the hands of Balbir, lshwar and Rajinder and also Satpal, who had come to the scene at a slightly later stage. The second incident took place after the three injuries witnesses had attempted to escape by running away towards the village and had then seen Chandro deceased coming towards the fields from the side of the village followed by Savitri and Kamla, armed with a Lathi and Bankri respectively and the injuries had thereafter been caused to Chandro. After going through the evidence, we are of the opinion that the involvement of Satpal, Savitri and Kamla is seriously suspect and it appears that the two women, in particular, had been roped in on account of the fact that Chandro wife of Sher Singh had been done to death. We also find that there is no evidence as to the circumstances in which Kamla and Savitri had followed Chandra while she was on her way to the fields taking food. We also find that as per the prosecutions own showing Satpal too had come to the place of first incident after a substantial part of it was over. We are further of the opinion that the injuries caused to the three prosecution witnesses and to Chandro could have been caused by Balbir, Ishwar and Rajinder, who were armed with a Bankri and Jailies as they had also admitted their presence at the spot. We are, therefore, of the opinion that the involvement of Savitri, Kamla and Satpal is suspect. 13. We have considered Mr. Ghais additional argument that Section 34 of the Code could not be applied to the facts of the present case and, therefore, the two accused Ishwar and Rajinder could not be held vicariously liable for the murder of Chandro. It will be seen that as per the prosecution case, the incident had started near the field belonging to both the parties as they were holders of a joint khata. It will be seen that as per the prosecution case, the incident had started near the field belonging to both the parties as they were holders of a joint khata. The injuries were caused to the three prosecution witnesses in this field itself and when the witnesses attempted to run away, they had been followed by the four accused whereas Savitri and Kamla had been chasing Chandro while she was coming from the village towards the fields. It appears to be the admitted position that the meeting between Chandro and the accused was purely a chance encounter and that she had given absolutely no provocation to anyone as she had not been present at the time of the first incident in the fields. It is true that the common intention can be formed on the spur of the moment but as per the F.I.R. and the evidence on record, it was Balbir, who had given a Lalkara that Chandro should not be allowed to go alive and he alone had inflicted the injury on her head, which ultimately proved to be fatal. It is equally true that Rajinder had caused a simple injury to her on the head whereas the other accused had caused simple injuries on non-vital parts of her body. We have already recorded a finding by way of abundant caution, that Savitri, Kamla and Satpal had not been present at the spot. In view of the facts, we are of the opinion that Ishwar and Rajinder too cannot be vicariously held liable for the injuries caused by Balbir for that part of the incident in which Chandro had been done to death. They must, however, be held liable for the fast incident which took place in the fields in which three of the witnesses were injured, as also the simple injuries caused to Chandro. 14. We are also of the opinion that the plea of self-defence taken by the accused Balbir, Ishwar and Rajinder is also to no avail as in the F.I.R., Sher Singh had clearly stated that they too had caused injuries to the accused party in self-defence. He had, however, tried to get out of this statement by denying that he had given such a statement. He had, however, tried to get out of this statement by denying that he had given such a statement. Basti Ram (PW-5) had, however, been more categoric when he had stated that he too might have caused injuries to the accused in self-defence with the small stick that he had been carrying. We are, therefore, of the opinion that no credence can be attached to the plea of the accused. 15. As per the evidence of Dr. R. Leekha (PW-14) the death had been caused by injury No. 2 which was an incised wound 6 cm x 0.5 cm bone deep and on the opening of the skull, the underlying bone had been cut and brain matter damaged. This injury had been attributed to Balbir. Ishwar and Rajinder had been attributed simple injuries on her person. Likewise, the injuries on the three eye-witnesses, who had been injured in the incident, which took place in the fields were found to be simple. 16. In view of the findings recorded above, substantial modifications in the judgment of the trial Court are called for. We, therefore, partly allow the appeal and order the acquittal of Savitri, Satpal and Kamla. We are also of the opinion that Balbir alone must be held responsible for the murder of Chandro whereas the vicarious liability of Rajinder and Ishwar for the said offence cannot be fastened on them. They are accordingly acquitted of the offence punishable under Section 302/34 IPC. Ishwar and Rajinder are, however, convicted under Section 324 and 323 IPC, respectively for having caused simple injuries on her person. Appellant Ishwar is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- for the offence punishable under Section 324 of the Indian Penal Code and appellant Rajender is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- for the offence punishable under Section 323 of the Code. In default of payment of fine, each of them shall undergo further rigorous imprisonment for two months. 500/- for the offence punishable under Section 324 of the Indian Penal Code and appellant Rajender is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- for the offence punishable under Section 323 of the Code. In default of payment of fine, each of them shall undergo further rigorous imprisonment for two months. Likewise these three accused, namely, Balbir, Rajender and Ishwar stand convicted under Section 323/34 and 324/34 of the Code for the injuries caused to the three injured witnesses in the first incident which took place in the fields and sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324/34 of the Indian Penal Code and six months for the offence punishable under Section 323/34 of the Code. All the sentences shall run concurrently. 17. However, the appeal qua Balbir is dismissed. 18. Resultantly, the Crl. Revision is also dismissed.