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2006 DIGILAW 9 (PNJ)

Brahma Nand v. State of Haryana

2006-01-03

MEHTAB S.GILL, UMA NATH SINGH

body2006
JUDGMENT 1. This is an appeal against the judgment of the Additional Sessions Judge, Gurgaon dated 16/20-1-1997 whereby, he convicted appellant Brahma Nand under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-. In default of payment of fine, to further undergo R.I. for six months. 2. The case of the prosecution is unfolded by the statement of Balraj Singh son of Sohan Lal (Ex.PC) given to Vidya Nand A.S.I. at Police Post Dundahera on 2.7.1995. Balraj Singh stated that he was a driver with a Housing Company in DLF Phase-I and his brother Prem Singh was also a driver in the same Company. On the night intervening 1.7.2005/2.7.2005, there was a marriage party in their Mohalla. All his family members were awake to see the Barat. Both his brothers Prem Singh and Pardeep were sitting in front of the house. Balraj Singh along with the other family members were on the roof of the house. On 2.7.1995 at about 1.00 A.M., Brahma Nand came to his brother Prem Singh and demanded a match box. Prem Singh asked his younger brother Pardeep to fetch the match box. In the meantime, Brahma Nand started quarreling with Prem Singh. Balraj Singh and Pardeep came out of the house. Brahma Nand, who was armed with a kirpan, gave a blow on the left side of his abdomen of Prem Singh. Thereafter, he gave kirpan blows on the chest, near the right nipple and on the frontal aspect of the neck and on the upper part of the right hand of Prem Singh. On hearing the noise, Sher Singh son of Surjan, who also witnessed the occurrence, came to the spot. When all the three tried to rescue Prem Singh and tried to overpower Brahma Nand, Sher Singh also sustained injuries. Brahma Nand could not be caught and he fled away. 3. The prosecution, to prove its case, brought into the witness box Dr.D.Parashar as PW1, Balraj Singh complainant as PW2, Sher Singh as PW3, Sub Inspector Ram Bhagat as PW4, Dr.B.B.L.Sharma as PW5, Draftsman Sharwan Kumar as PW6 and A.S.I. Vidhya Nand, Investigating Officer as PW7. 4. Appellant when examined under Section 313 Cr.PC, took a plea of self defence. 3. The prosecution, to prove its case, brought into the witness box Dr.D.Parashar as PW1, Balraj Singh complainant as PW2, Sher Singh as PW3, Sub Inspector Ram Bhagat as PW4, Dr.B.B.L.Sharma as PW5, Draftsman Sharwan Kumar as PW6 and A.S.I. Vidhya Nand, Investigating Officer as PW7. 4. Appellant when examined under Section 313 Cr.PC, took a plea of self defence. He stated that the deceased was abusing the Barat party and he asked him not to do so and to keep the dignity of the village. Deceased then started abusing him also and when he protested, Prem Singh and Sher Singh started beating him with lathis. In order to save his life, he wielded a small knife in self defence and inflicted injuries on the person of Prem Singh. Otherwise, the complainant party would have killed him. Appellant received injuries and was medically examined. He himself surrendered before the police The police in collusion with the complainant party has falsely implicated him in this case. The witnesses are relations and no independent witness come forward to give evidence against him as he was innocent. 5. In his defence, the appellant examined DW1 Dr.Pushpa Jain. 6. Learned counsel for the appellant has argued that the appellant has been falsely implicated. In fact, the actual story is that deceased Prem Singh was abusing the Barat party. Appellant asked him not to do so. On this, an altercation took place and deceased Prem Singh and Sher Singh (PW3) started beating the appellant with lathis. In order to save himself, the appellant took out a small knife and inflicted injuries in self defence on the person of the deceased. If he had not done so, appellant would have been killed. Appellant, thereafter, surrendered himself before the police and got the knife (Ex.P2) recovered. Appellant has received seven injuries. No explanation has come forward from the side of the prosecution as to the injuries on the person of the appellant. Quarrel between the appellant and the deceased has been admitted by Balraj Singh complainant (PW2) and Sher Singh (PW3). The Investigating Officer did not examine any independent witness of the village nor any one from the Barat. 7. Learned counsel for the State has argued, that the injuries on the person of the appellant are abrasions and Dr.Pushpa Jain (DW1) has categorically stated that they could be self suffered. The Investigating Officer did not examine any independent witness of the village nor any one from the Barat. 7. Learned counsel for the State has argued, that the injuries on the person of the appellant are abrasions and Dr.Pushpa Jain (DW1) has categorically stated that they could be self suffered. If lathis had been used on the person of the appellant by the deceased and his brother Balraj Singh (PW2), appellant would have sustained much more serious injuries on his person than mere abrasions. 8. We have heard learned counsel for the parties and perused the record with their assistance. 9. Occurrence had taken place on the night of 1.7.1995/2.7.1995. It was at about 1.00 A.M. on 2.7.1995 that a Barat was passing from the Mohalla and the deceased along with his brother Pardeep were sitting in front of their house and watching the Barat pass by. Appellant came there and asked the deceased for a match box. Pardeep went inside the house to fetch a match box and in the meantime, the appellant attacked the deceased and inflicted injuries on him. In fact, demand of a match box was only an excuse for the appellant to attack Prem Singh deceased. In his crossexamination, Balraj Singh (PW2) has stated that the house of the appellant is at the back of the house of the deceased. About a month prior to the occurrence, the complainant party was opening a gate in the wall of their house on the back side. This was objected to by the ladies members of the appellant. On account of this, a quarrel erupted. At that time, appellant had threatened, that he would settle the matter. A lane of 5 feet separates the house of the appellant and the deceased. This was the grudge for commission of the offence. Demanding a match box by the appellant was only an excuse for the appellant to go near Prem Singh deceased to avenge the opening of the wall in the lane. No witness from the Barat was examined by the Investigating Officer, as it has come in the evidence of both Balraj Singh (PW2) and Sher Singh (PW3) that the Barat had already passed when the occurrence took place. It has come in evidence that there was an electric light on the pole at the gate of the house of the deceased. 10. It has come in evidence that there was an electric light on the pole at the gate of the house of the deceased. 10. Statement (Ex.PC) of Balraj Singh (PW2) was recorded by Vidhya Nand ASI (PW7) at General Hospital, Gurgaon at 5.15 A.M. on 2.7.1995. Formal FIR (Ex.PC/2) came into existence on 2.7.2005 at 5.25 A.M. and the special report reached the safe hands of Chief Judicial Magistrate, Gurgaon on 2.7.2005 at 7.30 A.M. There is no delay in the lodging of the FIR, which itself goes a long way in proving the case of the prosecution. In fact, the Investigating Officer moved swiftly and within a span of 6-1/2 hours, completed all the proceedings regarding the recording of the statement (Ex.PC) of Balraj Singh and the special report reaching the Chief Judicial Magistrate, Gurgaon. 11. Learned counsel for the appellant has laid much stress on this aspect, that seven injuries found on the person of the appellant have not been explained by the prosecution. Dr. Pushpa Jain (DW1) examined the appellant on 10.7.1995 at 7.00 P.M. She found seven injuries on the person of the appellant. All the seven injuries were abrasions. The duration of the injuries, as per the opinion of the doctor, was 7 to 8 days. Further, she has opined that the injuries were superficial and could be self suffered. As per the statement of the appellant under Section 313 Cr.PC, lathis were used by Balraj Singh (PW2), his brother Pardeep and the deceased to inflict injuries on him. It is not believable that three persons, who were wielding lathis, could have given superficial injuries on the person of the appellant. The injuries would have been of much more serious in nature if lathis had been used by the complainant party. 12. We cannot be oblivious of this fact, that the occurrence had taken place in front of the house of the deceased at 1.00 A.M. in the night. Nothing has come forward from the side of the appellant as to what was he doing in front of the house of the deceased at 1.00 A.M. on 2.7.2005. 13. Learned counsel for the appellant has further argued that no independent witness was joined. Nothing has come forward from the side of the appellant as to what was he doing in front of the house of the deceased at 1.00 A.M. on 2.7.2005. 13. Learned counsel for the appellant has further argued that no independent witness was joined. It has come in evidence of Balraj Singh (PW2) and Sher Singh (PW3) that the Barat had already passed from the place of occurrence and it is thereafter, that the appellant attacked the deceased. In fact, Balraj Singh (PW2) and Sher Singh (PW3) are natural witnesses to the occurrence, which had taken place in front of their house. Inquest report (Ex.PH/3) shows in column No.4 that Balraj Singh (PW2) and Sher Singh (PW3) were present at the time when the inquest was being done by Vidhya Nand ASI (PW7), the Investigating Officer. 14. We do not find any infirmity in the judgment of the Additional Sessions Judge, Gurgaon. Appeal is dismissed.