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2004 DIGILAW 833 (PNJ)

Mahabir v. State of Haryana

2004-08-04

V.K.BALI

body2004
JUDGMENT V.K. Bali, J. (Oral) - Mahabir and three others, through present appeal filed by them, call in question order of conviction and sentence recorded against them by learned Additional Sessions Judge, Rohtak, dated 26/28.9.1991 vide which, they were held guilty for offence under Sections 307/323 read with Section 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years under Section 307 read with Section 34 of Indian Penal Code and for a period of three months rigorous imprisonment under Section 323 of Indian Penal Code. Both the sentences were ordered to run concurrently. 2. Briefly put, the appellants aforesaid were sent for trial by the prosecution under Sections 325, 308 read with Section 34 of Indian Penal Code on the basis of statement made by Ram Phal, who was examined as PW-5, and stated that on 1.1.1990 at about 8.00 P.M., he was going to call his uncle Dhupal for watering the fields. When he was going from his house, a Jeep, with its ignition on was standing in front of the house of Molar and Mahabir accused was sitting on its steering. When he crossed the Jeep and was just ahead of it, Mahabir moved the Jeep and its bumper lightly hit him, by the impact of which, he fell down. Mahabir stopped the Jeep after crossing him and came down. On this, Ram Phal asked Mahabir to driver the Jeep carefully. The effect of his advice was adverse on Mahabir, who grappled with him. In the meanwhile, Bhajjna son of Nanu, Ram Mehar son of Nanu and Ramesh son of Ram Mehar, the other accused, came there. They were armed with lathis. Bhajjna gave a blow with his lathi near the right eye of Ram Phal. He also gave a blow on his right leg. On hearing the noise, Dhupal, his uncle, and Bhalliya, his mother, came at the spot. Ram Mehar gave a blow on the head of Dhupal. He also gave a blow on his left arm. Ramesh gave a lathi blow on the back of Dhupal. He also gave blow on the head and teeth of Bhalliya. The victims of the assault raised noise, that attracted Dalip, Molar and several other persons of the village, who rescued them from the clutches of the accused. He also gave a blow on his left arm. Ramesh gave a lathi blow on the back of Dhupal. He also gave blow on the head and teeth of Bhalliya. The victims of the assault raised noise, that attracted Dalip, Molar and several other persons of the village, who rescued them from the clutches of the accused. In the night, Ram Phal and other injured did not come to Meham and remained in their village. In the morning, they came to hospital of Meham, where they were medico-legally examined. On receipt of ruqa from the Doctor, examining the injured accompanied by the Medico Legal Reports, Raj Kumar, ASI, went to the hospital and recorded the statement of Ram Phal. Case was registered for an offence punishable under Section 325 read with Section 34 of Indian Penal Code. On 29.5.1990, injury of Dhupal was declared dangerous to life and offence was converted into Sections 308/325 of Indian Penal Code. The Court vide order dated 28.1.1991, prima facie, found charge for offence punishable under Section 307 of Indian Penal Code against Ram Mehar accused and for offence punishable under Sections 307, 323 read with Section 34 of Indian Penal Code was found against all the accused. 3. In its endeavour to bring home the offence against the appellant, the prosecution examined Dr. J.P. Malik, M.O., P.H.C., Meham, PW-1, Ranbir Singh, PW-2 Mahi Pal, Head Constable, who arrested the accused on addition of Section 308 of Indian Penal Code as PW-3, Dr. N.K. Sharma, who operated upon Dhupal and opined that the patient could have died if timely medical aid would not have reached him as PW-4, Ram Phal, is the first informant as examined PW-5, whereas, Dhupal and Smt. Bhalliya, eye witnesses, were examined as PW-6 and PW-7, respectively. Raj Kumar, ASI, who was examined as PW-8, gave details of the investigation conducted by him. 4. In the context of limited arguments that have been raised in support of this appeal, there is no need to give further details of the prosecution version or for that matter, the defence led by the appellants. It is significant to mention that PW-1 Dr. J.P. Malik when cross-examined, admitted that on 2.1.1990 at about 4.00 P.M., he had examined Sunita wife of Mahabir and found following injuries on her person :- "1. It is significant to mention that PW-1 Dr. J.P. Malik when cross-examined, admitted that on 2.1.1990 at about 4.00 P.M., he had examined Sunita wife of Mahabir and found following injuries on her person :- "1. Lacerated wound measuring 2x1 cm and bone deep present on right partietal region of the scalp clotted blood was present in the wound. The wound was present about 8 cm vertically above the upper border of right pinna. X-ray skull for A.F. and lateral views was advised. 2. Abrasion measuring 3x1/2 cm present on right side of the chest over the clavicle bone. There was no swelling and crepitus was present under the abrasion. It was also not covered by scab." 5. He also admitted that on the same very day at about 4.20 P.M. he examined Mahabir accused and found the following injury on his person :- "Lacerated wound measuring 2.5x1 cm and bone deep was present on right parietal region of the scalp. Clotted blood was present in the wound. The wound was located 9 cm vertically above the upper border of right pinna. X-ray skull for AP and lateral view was advised." 6. It is significant to mention that whereas, first injury on the person of Sunita is on right parietal region of the scalp where clotted blood was present, the second injury on her person was found to be on the right side of the chest, which is over the clavicle bone. Mahabir accused also sustained injury on right partietal region of the scalp and clotted blood was present in the wound. 7. Mr. Ranjit Saini, learned counsel representing the appellants, has raised two fold contentions in support of this appeal. He first contends that the prosecution has failed to prove that case under Section 307 of Indian Penal Code is made out and secondly, that in any case, applicability of Section 34 of Indian Penal Code, in the facts and circumstances of this case, could not be made out. 8. I have heard learned counsel representing the parties and with their assistance examined the records of this case. 8. I have heard learned counsel representing the parties and with their assistance examined the records of this case. Whereas, there does not appear to be any substance in the first contention of learned counsel but for to examine as to whether, in the facts and circumstances of this case, even if offence under Section 307 of Indian Penal Code is made out, a case of reduction of sentence is made out or not, I find considerable merit in the second contention of learned counsel, as noted above. Thus while first dealing with the second contention of learned counsel, it would be seen that it is the prosecution case itself that there is no previous enmity between the parties. In fact, the accused and the complainants are descendants of common ancestors and were residing in the same street. The occurrence sparked off by striking of Ram Phal by the Jeep. It cannot be said to be result of premeditation. On striking off by the Jeep, Ram Phal and Mahabir grappled over a trifle issue. If was, indeed, a sudden occurrence. However, noise of grapping attracted the persons not only from the side of Mahabir but also the complainant. In the fight that ensued on account of quarrel, where other accused were not even present, and were attracted to the scene of occurrence only on hearing the noise, pre-concert is totally ruled out. Appellants Ram Mehar, Bhajjna and Ramesh could not be said to have shared the intention of Mahabir. They could also not be said to have shared a common intention among themselves. Applicability of Section 34 of Indian Penal Code is, thus, ruled out. This court is of the view that the accused are liable to be punished for their individual acts. 9. Insofar as, applicability of Section 307 of Indian Penal Code is concerned, I may mention that it may be true that the Doctor, who first examined Dhupal, did not give his opinion or in any case, even if he might have given his opinion, same was not proved, the Doctor, who had operated upon Dhupal, and was examined as PW-4, clearly stated that if operation was not conducted and extra-dural haematoma was not removed, Dhupal would have died. He stated that patient Dhupal was admitted on 3.1.1990 in Medical College, Rohtak. He was having left sided hemiparesis without any sensory dericit. He stated that patient Dhupal was admitted on 3.1.1990 in Medical College, Rohtak. He was having left sided hemiparesis without any sensory dericit. He was advised angiogram of C.T. Scan. C.T. Scan was done and it revealed right sided extra- dural haematoma. The patient was operated on 16.1.1990 and extra-dural haemotama was evacuated. He further stated that as per C.T. Scan report, the patient was having right parietal comminuted fracture with parieto occipital extra-dural haematoma. He then stated that the patient could have died if timely medical aid would not have reached him. To a Court question, the Doctor further stated that operation of the patient was mandatory and if there was no operation, the patient could have died any moment. He further stated that as per C.T. Scan report, haematoma was causing mass effect over ventricles and shift of midline structures to the left, lateral ventricles show asymmetrical dilatation, which means that there was pressure on the brain to the right side. He denied the suggestion that there was no damage to the brain matter and injury could not be fatal. It may be true that this Doctor also stated that even during the treatment of Dhupal, he could not be seen to be sinking at any time and that he was operated upon after 18 days, but the fact remains that the injury was caused to Dhupal by lathi, which is a dangerous weapon, on his vital part, which resulted into comminuted fracture. Considering the nature of the injury and receipt thereof, it can well be said that the offence made out in this case would be under Section 307 of the Indian Penal Code. 10. I find no illegality or infirmity in the findings recorded by the learned Additional Sessions Judge. Injury in this case was inflicted by lathi, which by all means is a deadly weapon, and the same was inflicted on the head of Dhupal, which is a vital part and further in the opinion of Dr. J.P. Malik, injury of Dhupal was not simple in nature, and as per the statement of Dr. N.K. Sharma, M.S., M.H.C., Neurosurgery Head, who is an expert witness, and who had operated upon Dhupal, extra-dural haematoma was removed, which was causing pressure on the brain matter and if not displace could cause death any time. 11. J.P. Malik, injury of Dhupal was not simple in nature, and as per the statement of Dr. N.K. Sharma, M.S., M.H.C., Neurosurgery Head, who is an expert witness, and who had operated upon Dhupal, extra-dural haematoma was removed, which was causing pressure on the brain matter and if not displace could cause death any time. 11. The weapon, receipt of injury and nature of injury, as found by the expert Doctor, would bring the offence against Ram Mehar under Section 307 of Indian Penal Code. As mentioned above, mere fact that the patient survived for 18 days and was reacting normal during this period, is not enough to prove that the injury was not dangerous to life or sufficient to cause death in normal course. 12. In view of the discussion made above, the Court is of the firm view that insofar as, appellant Ram Mehar is concerned, he has committed offence under Section 307 of Indian Penal Code is, thus, affirmed. Insofar as, other appellants are concerned, they are liable for their individual acts. As all the injuries but for the one caused by Ram Mehar are simple in nature, they can be held guilty for offence under Section 323 of Indian Penal Code only. All these accused are stated to have undergone sentence for a period of 15 to 30 days during the course of trial. The Court is of the view that the sentence that they have already undergone would meet the ends of justice. These three accused are facing the agony of protracted trial spanned over a period of 14 years. It would not be desirable at this stage for them to serve sentence. So ordered. Insofar as, appellant Ram Mehar is concerned, he also deserves some leniency in the matter. As mentioned above, the accused and the injured are descendants of common ancestors. They have their houses in the same street in the village. The occurrence was sparked off on a triffle issue. There was no previous enmity between the parties and in the occurrence, one of the accused, namely, Mahabir and his wife Sunita have also suffered injuries and that too on the vital parts of their bodies. Ram Mehar has also faced agonising trial spanned over a period of 14 years. The occurrence was sparked off on a triffle issue. There was no previous enmity between the parties and in the occurrence, one of the accused, namely, Mahabir and his wife Sunita have also suffered injuries and that too on the vital parts of their bodies. Ram Mehar has also faced agonising trial spanned over a period of 14 years. In view of this Court, it would be in the interest of justice, if he is sentenced to undergo rigorous imprisonment for a period of two years. So ordered. In view of the discussion made above, the appeal is partly allowed in the manner fully indicated above. Appeal partly allowed.