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2006 DIGILAW 185 (PNJ)

Chhotu v. State of Haryana

2006-01-23

MEHTAB S.GILL, UMA NATH SINGH

body2006
JUDGMENT UMA NATH SINGH, J. 1. This Criminal Appeal arises out of a judgment dated 12.8.1999 passed by learned Additional Sessions Judge, Hisar, in Sessions Case No.80 of 1997/98 (Sessions Trial No.39/97/98), holding accused- appellants Chhotu and Bhallu guilty of offence under Sections 302/34 IPC, and sentencing them to undergo RI for life with a fine of Rs.2,000/ each, while recording acquittal of co-accused Murad of the said offence. 2. The prosecution case is based on an FIR (Ex.PM/2) recorded on 9.12.1996 at 12.50 PM vide DD No.15, at Police Station Sadar, Hisar, on the statement of Dharamvir (PW7), brother of the deceased. The incident took place at Village Kharar. The complainant was posted as a Chowkidar in the mini bank of the village. His brother Dilbagh had constructed a house in New Basti, towards North side of the village abadi. On 8.12.1996 at about 10 O’ clock in the morning, when the deceased, in order to construct a cattle shed, started digging foundation, Murad son of Umda had objected to that. The complainant and his deceased brother went to Har Narain, Sarpanch of the village, and apprised him of the situation. The Sarpanch advised them to dig the foundation, leaving a width of 22 feet for the lane. Accordingly, they started digging, leaving that width for the lane. At about 4.00 PM, Murad, accompanied by his nephews Chhotu and Bhallu sons of Mani Ram, residents of Kharar, reached there. Accused- appellants Chhotu and Bhallu were carrying lathis in their hands. Murad asked them as to why they were digging the foundation once he had objected to that in the morning. The complainant and his deceased brother tried to clarify the position that they left 22 feet wide land for the lane. However, all the three accused started hurling abuses to them. Accused-appellants Chhotu and Bhallu gave lathi blows to Dilbagh on his head and neck. As a result, the deceased fell down with his face downwards. The complainant, his sister-in-law Sajjana (PW8) (brother’s wife) and one Shamsher Singh son of Chandgi Ram (PW5), rescued the deceased from the clutches of the accused. At that time, they found that the deceased was bleeding from his mouth and nose and he had become unconscious. Other persons of the village had also reached there. The accused fled away from the spot with their respective weapons. At that time, they found that the deceased was bleeding from his mouth and nose and he had become unconscious. Other persons of the village had also reached there. The accused fled away from the spot with their respective weapons. The deceased was shifted in unconscious state in a jeep of Dalbir son of Jai Ram to the Civil Hospital, Hisar, for medical treatment. The deceased was admitted in the hospital but ultimately succumbed to the injuries at night. The complainant went to his village to inform about the death and thereafter returned to the hospital with the villagers. The aforesaid statement was recorded by Inspector Rohtash Singh, SHO, Police Station Sadar, Hisar, in the Civil Hospital, Hisar, itself, who had reached there on receiving a telephonic message through HC Rajinder Singh of Police Post, Cantt., Hisar, from Civil Hospital, Hisar. Accordingly, an offence under Sections 302/34 IPC was registered and taken for investigation. After completing the investigation, including the inquest (Ex.PC), the SHO of Police Station, Sadar, Hisar, put up a challan under Sections 302/34 IPC against the aforesaid appellants and also acquitted accused Murad. 3. The prosecution examined 9 witnesses. Dr.Daya Nand (PW1) conducted the post mortem (Ex.PA) on the dead body of deceased Dilbagh on 9.12.1996 at 3.00 PM. Dr. R.P. Singhal (PW2) had initially examined deceased Dilbagh on 8.12.1996 at Government Hospital, Hisar, vide Ex.PD. He had sent a ruqa (Ex.PE) to the police. HC Manphool Singh (PW3) was posted at Police Station Sadar, Hisar. He tendered his evidence on affidavit (Ex.PH). HC Mahinder Singh (PW4) also tendered his evidence on affidavit (Ex.PJ). Shamsher Singh (PW5) is the Draftsman. He prepared the site plan (Ex.PK) on 14.1.1997 on the spot pointed out by Dharamvir (PW7). He recorded the marginal notes in his handwriting and proved the document. HC Rajinder Singh (PW6) was posted at Police Post Cantt. Hisar, on the date of incident. He had received the message about the incident. Dharamvir (PW7) is the complainant. He is an eye witness of the incident. Sajjana (PW8) is the wife of the deceased. She is also an eye witness of the incident. Inspector Rohtash Singh (PW9) was the SHO of Police Station, Sadar, Hisar, who had recorded the statement (Ex.PM) of Dharamvir (PW7). Dharamvir (PW7) and Sajjana (PW8) are the eye witnesses of the incident. PW7 has supported his statement given to Inspector Rohtash Singh (PW9). She is also an eye witness of the incident. Inspector Rohtash Singh (PW9) was the SHO of Police Station, Sadar, Hisar, who had recorded the statement (Ex.PM) of Dharamvir (PW7). Dharamvir (PW7) and Sajjana (PW8) are the eye witnesses of the incident. PW7 has supported his statement given to Inspector Rohtash Singh (PW9). He has admitted that accused- appellant Bhallu was employed as a Teacher in a school at Village Mayar. Accused-appellant Chhotu was making his living by working as a labourer. The residential plots of land ofaccused-appellants Chhotu and Bhallu are different. The disputed plot was given to the complainant side under Indira Awas Yozna by the Gram Panchayat. The size of the plot was 3 marlas. The plot given under the yozna to accused Murad (since acquitted) was situated in front of their plot of land across the street. PW7 and the deceased were digging foundation for a wall outside the walls, enclosing the open space in their plot of land. The plot was demarcated by the Sarpanch. They had constructed a room on that plot and had enclosed the remaining space with walls. Initially, digging of foundation was started on 8.12.1996 at about 10.00 AM. But it was given up on objection of accused Murad. Accused Murad was not summoned by the Sarpanch in the presence of this witness, when the matter was complained to him, nor had the Sarpanch come to the spot for demarcating the land. The Sarpanch had only suggested for leaving an area of 22 feet for street. On their return, the complainant side did not tell accused Murad that the Sarpanch had allowed them digging of foundation for wall, after leaving 22 ft. strip of land for street. PW7 and the deceased were digging foundation with spades. In his cross-examination, PW7 has stated that no abusive language or words were exchanged between the parties before the accused started causing lathi blows to deceased Dilbagh. He reiterated that accused Chhotu and Bhallu caused lathi blows on the head and the back side of the neck of deceased Dilbagh. He did not try to prevent them from giving blows because after causing one blow each, the accused went away from the scene of occurrence. After the accused had left the spot, he took care of the deceased. No other villager was seen near the place of occurrence at the time of incident. He did not try to prevent them from giving blows because after causing one blow each, the accused went away from the scene of occurrence. After the accused had left the spot, he took care of the deceased. No other villager was seen near the place of occurrence at the time of incident. He told the police that accused Chhotu dealt a lathi blow on the head of the deceased from the front side whereasaccused Bhallu caused a lathi blow on the back side of his neck from behind. He has denied exchange of words between the parties before the accused had opened the assaults. He admitted that when his statement was recorded, Shamsher Singh was present in the hospital. He also admitted that Maman and Sube sons of Chhotu are his distinct collaterals, so is Shamsher. According to him, Sajjana (PW8), wife of the deceased, was also present when the injuries were caused and she also raised the alarms. Sajjana (PW8), widow of the deceased, also supported the prosecution case and corroborated the testimony of PW7. She was present on the spot and raised the alarms saying mar dia mar dia, (killed, killed). The accused fled away from the spot. In her cross-examination, she has also admitted that there was no quarrel between the parties. The injuries were caused so swiftly by the accused that they gave no time to them to rescue the deceased. She stated that she also helped in removing her deceased husband from the place of occurrence, however, her clothes did not get spoiled by the blood. Initially she had not accompanied her husband to the hospital at Hisar and he was taken only by his brother Dharamvir (PW7). Her statement was recorded at 3.00 PM when she came to Hisar with villagers. At that time, the dead body of her deceased husband was lying in the hospital. She has reiterated in her cross-examination that accused Chhotu and Bhallu caused lathi blows. One lathi blow landed on the head and another on the back of the neck. Dr.Daya Nand (PW1), who conducted the post mortem on the dead body, has stated that there was no external mark of injury over the body, except a defused swelling over left temporal region. He has also stated that on removing the scalp, a haemotoma was found present under the scalp in left temporal and parietal region. Dr.Daya Nand (PW1), who conducted the post mortem on the dead body, has stated that there was no external mark of injury over the body, except a defused swelling over left temporal region. He has also stated that on removing the scalp, a haemotoma was found present under the scalp in left temporal and parietal region. There was a fracture of the left temporal bone. The head injury, which was antemortem in nature, was sufficient to cause death in the ordinary course of nature. He also stated that the injury on the body of the deceased could be the result of a lathi blow. According to him, the injury could also be possible by a forceful fall on the bricks. Dr.R.P.Singhal (PW2), who initially examined the deceased, in his cross-examination, has admitted that if there are multiple lathi blows on the head and the neck, then there would be external injury on the body. However, there was not even a swelling. In the inquest report (Ex.PC), Inspector Rohtash Singh (PW9) did not find a patent injury. He has proved the exhibits prepared during the investigation. We have carefully examined the entire prosecution evidence and, particularly, the evidence of eye witnesses discussed herein-above. It is noticed in the inquest report so also in the testimony of PW2 that there was no external injury. The prosecution has alleged one lathi blow each to accused-appellants Chhotu and Bhallu, whereas, in the post mortem, the Doctor has noticed one injury on the left temporal and parietal region, which has been attributed to accused-appellant Chhotu, specifically in the evidence of Dharamvir (PW7), who is the author of the FIR. Accused-appellant Chhotu in his statement under Section 313 Cr.P.C. has admitted that he objected to digging of foundation. He has also admitted to have given a forceful push to the deceased, who fell on the bricks and received the fatal injury. He has stated that his brother Bhallu, his uncle Murad and the eye witnesses were not present on the spot. Accused-appellant Bhallu, in his statement under Section 313 Cr.P.C., has stated that he is innocent. He has been falsely implicated. Thus, looking to the solitary injury located on the left temporal and parietal region of the head of the deceased, which has been attributed to accused-appellant Chhotu, his conviction need not be interfered. Accused-appellant Bhallu, in his statement under Section 313 Cr.P.C., has stated that he is innocent. He has been falsely implicated. Thus, looking to the solitary injury located on the left temporal and parietal region of the head of the deceased, which has been attributed to accused-appellant Chhotu, his conviction need not be interfered. The nature of offence also remains the same, as the injury is located on a vital part of the body and it was sufficient in the ordinary course of nature to cause death. However, there is no injury corresponding to the role attributed to accused-appellant Bhallu, and even accused Chhotu in his statement under Section 313 Cr.P.C. has denied his presence on the spot. Hence accused Bhallu deserves to be acquitted. Under the circumstances, this criminal appeal succeeds in part and the impugned judgment is set aside in respect of accused-appellant Bhallu. He is directed to be released forthwith if not wanted in any other case. However, the conviction of accused Chhotu is affirmed. Accordingly, the appeal is dismissed in part.