Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 1249 (PNJ)

Mahabir v. State Of Haryana

2009-07-28

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction dated 04.04.1997, and the order of sentence dated 05.04.1997, rendered by the Court of Additional Sessions Judge, Hisar, vide which it convicted and sentenced the accused (now appellants), as under:- Names of the accused (now appellants) The offence for which conviction was recorded. Sentence awarded Mahabir, Rajender, Krishan, Pala, Chhabila, Shanker and Balwant 148 IPC Rigorous imprisonment for two years each. Fine of Rs. 2000/-each. In default of payment of fine to undergo rigorous imprisonment for six months each. Mahabir 307 IPC Rigorous imprisonment for seven years. Fine of Rs. 5000/-. In default of payment of fine to undergo rigorous imprisonment for one year. Krishan, Rajender, Pala, Chhabila, Shanker and Balwant, 307/149 IPC Rigorous imprisonment for seven years each. Fine of Rs. 5000/-each. In default of payment of fine to undergo rigorous imprisonment for one year each. Shanker 326 IPC Rigorous imprisonment for six years. Fine of Rs. 5000/-. In default of payment of fine to undergo rigorous imprisonment for one year. Balwant. Rajender, Krishan, Pala, Chhabila and Mahabir 326/149 IPC Rigorous imprisonment for six years each. Fine ofRs. 4000/-each. In default of payment of fine to undergo rigorous imprisonment for one year each. Krishan 325 IPC Rigorous imprisonment for five years. Fine of Rs. 3000/-. In default of payment of fine to undergo rigorous imprisonment for one year. Balwant, Rajender, Pala, Chhabila, Mahabir and Shanker 325/149 IPC Rigorous imprisonment for five years each. Fine of Rs. 3000/-each. In default of payment of fine to undergo rigorous imprisonment for one year each. Chhabila 24 IPC Rigorous imprisonment for three years. Fine of Rs. 3000/-. In default of payment of fine to undergo rigorous imprisonment for six months. Balwant, Shanker, Rajender, Krishan, Pala and Mahabir 324/149 IPC Rigorous imprisonment for three years each. Fine of Rs. 3000/-each. In default of payment of fine to undergo rigorous imprisonment for six months each. Pala, for causing simple injury on the person of Smt. Mohini 324 IPC Rigorous imprisonment for three years. Fine of Rs. 3000/-. In default of payment of fine to undergo rigorous imprisonment for six months. Mahabir, Rajender, Krishan, Chhabila and Shanker 324/149 IPC Rigorous imprisonment for three years each. Fine of Rs. 3000/-each. In default of payment of fine to undergo rigorous imprisonment for six months each. Fine of Rs. 3000/-. In default of payment of fine to undergo rigorous imprisonment for six months. Mahabir, Rajender, Krishan, Chhabila and Shanker 324/149 IPC Rigorous imprisonment for three years each. Fine of Rs. 3000/-each. In default of payment of fine to undergo rigorous imprisonment for six months each. The substantive sentences of all the accused were ordered to run concurrently. 2 The facts, in brief, are that, on 05.09.1992 at about 8.30 P.M., Satbir was proceeding towards the shop of one Mahabir Bania with his informant brother Surinder, for purchasing Biris and when they reached near the said shop, Mahabir, their uncle, Shanker son of Bhola, Chhabila and Pala sons of Siri Ram, Rajinder son of Mangtu , Balwant son of Prabhu, Krishan son of Musadi, armed with a gandasi each, came there. They surrounded Satbir. Mahabir raised an exhortation that the enemy had come and he should not escape on that day. Thereafter, Mahabir gave a gandasi blow on the head of Satbir, as a result whereof, he fell down. Krishan, accused gave a gandasi blow with reverse side, which hit the left foot of Satbir. Balwant gave a gandasi blow with reverse side, which hit the right foot of Satbir. Surender son of Banwari Lal and Satbir raised alarm of Save Save. Rajender son of Harphool and Rohtash son of Tulsi, whose houses are situated near the spot, came there. Satbir was then saved from the clutches of the accused. It was further stated that when Satbir was being taken to the hospital, on a cot, and reached infront of the house of Mani Ram, Banwari Lal, father of Surender and Krishan, younger brother of Surender also came there. Mohini, mother of Surender started weeping on seeing the condition of Satbir. Mahabir etc. and other accused came there and raised exhortation that Banwari Lal be done to death. Upon this, Chhabila, with an intention to kill Banwari Lal, gave a gandasi blow, which hit his forehead, as a result whereof, he fell down. The mother of Surender came forward when Pala gave a gandasi blow on her head. Shanker gave a gandasi blow, which hit the right arm of the mother of Surender, as a result whereof, her hand was cut. Mahabir and Rajinder sons of Mangtu Ram, continued raising exhortation that Banwari Lal, Satbir and Mohni, mother of Surender, be done to death. Shanker gave a gandasi blow, which hit the right arm of the mother of Surender, as a result whereof, her hand was cut. Mahabir and Rajinder sons of Mangtu Ram, continued raising exhortation that Banwari Lal, Satbir and Mohni, mother of Surender, be done to death. Surender, Krishan, brother of Surender, Rajinder son of Harphool, Rohtash, Chanda son of Ganesh, Mani Ram son of Hardwari and neighbourers came forward and saved the injured from the clutches of the accused. Thereafter, a vehicle was arranged and all the injured were taken to the hospital, where they were medicolegally examined. On the basis of the statement, Ex. PX, of Surender son of Banwari Lal, FIR Ex. PZ/2 was registered. The blood stained clothes of Banwari Lal, and Satbir son of Banwari Lal were also taken into possession. The Investigating Officer went to the spot, and prepared the site plan. The blood stained shirt of Mohni w/o Banwari Lal, was also taken into possession, vide memo Ex. PCC. The accused were arrested. They made disclosure statements, during investigation. In pursuance thereof, they got recovered the gandasis, the weapons of offences. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Committing Court, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Sections 148, 307, 307/149, 326, 326/149, 325, 325/149, 324 and 324/149 of the Indian Penal Code, was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dr. Balbir Singh Naniwal, Civil Hospital, Narnaul, (PW-1), who medicolegally examined Mohani Devi wife of Banwari Lal and found the following injuries on her person : 1. A semi-circular incised wound 4.5 cm x 1 cm x .5 cm over the forehead at the level hair line. Wound was bleeding profusely. Advised X-ray. 2. An incised wound 1.5 cm x .5 cm x 1 cm over the anterior lateral aspect of left upper arm. In extension to this wound, there was a semi circular abrasion of length 6.5 cm long overlying shirt had a cut corresponding to this injury. The underlying humerus bone was fractured. Advised X-ray. The wound was bleeding profusely. 4-A. Injury No. 2 was declared grievous in nature. In extension to this wound, there was a semi circular abrasion of length 6.5 cm long overlying shirt had a cut corresponding to this injury. The underlying humerus bone was fractured. Advised X-ray. The wound was bleeding profusely. 4-A. Injury No. 2 was declared grievous in nature. After receipt of X-ray report, injury No. 1 was also declared simple in nature. The probable duration of the injuries was within 6 hours. Both the injuries were caused by sharp edged weapon. 4-B. On the same day, the doctor also medicolegally examined Banwari son of Hans Raj and found the following injury on his person: 1. An incised wound semi-circular in shape extending from right eye brow upward and laterally over the forehead. Size 6.5 cm x 1.5 cm x 1.5 cm. Wound was bleeding profusely. The wound was underlying bone deep. Advised X- ray. This injury was declared simple in nature after receipt of X-ray report, which was caused by sharp edged weapon. The probable duration of injury was within six hours. 4-C. On the same day, the doctor also examined Satbir son of Banwari Lal, and found the following injuries on his person :- 1. An incised wound 4 cm x .5 cm x .5 cm on the top of scalp in mid-saggital suture line. Wound was bleeding profusely. Advised X-ray. 2. A radish contusion 3 cm x 2 cm over the upper 1/3rd of left leg on the anterior aspect with marked tenderness and swelling. Moments restricted. Advised X-ray. 3. A lacerated wound 1.5 cm x .25 cm x .25 cm over the anterior aspect of right leg. The wound was bleeding profusely. Advised X-ray. 4-D. Injury No. 1 was caused by sharp edged weapon, whereas injuries Nos. 2 and 3 were caused by blunt weapon. Injuries No. 1 and 2 on his person were declared.grievous, in nature, whereas injury No. 3 was declared simple in nature. The probable duration of the injuries was within six hours. 4-E. Dr. S.K. Dogra, S.M.O., General Hospital, Fatehabad, (PW-2), conducted x-ray examination of Mohani Devi, Banwari son of Hans Raj, and Satbir son of Banwari. 4-F. Dharam Pal, Record Officer, Medical College and Hospital, Rohtak, (PW3), produced the bed head tickets of Mohani and Satbir, injured. 4-G. Dr. Piyoosh Malik, Radiological Department, Medical College Hospital, Rohtak. (PW-4), radiologically examined Satbir son of Banwari Lal. 4-F. Dharam Pal, Record Officer, Medical College and Hospital, Rohtak, (PW3), produced the bed head tickets of Mohani and Satbir, injured. 4-G. Dr. Piyoosh Malik, Radiological Department, Medical College Hospital, Rohtak. (PW-4), radiologically examined Satbir son of Banwari Lal. 4-H. Shamsher Singh, Constable, (PW-5 Rajender Singh, Head Constable, (PW-6),. Kanajua Lal, Constable, (PW-7), and Vinay Kumar, Head Constable. (PW-8), tendered into evidence their affidavits, Ex. PT, Ex. PU, Ex. PV and Ex. PX, respectively. 4-I. Shamsher Singh, Draftsman, (PW-9), proved the scaled site plan, (Ex.PY). 4-J. Surender son of Banwari Lal, (PW-10), is the first informant and an eye witness. Satbir Singh son of Banwari Lal, (PW-11), Mohani Devi, (PW-12), and Banwari Lal, (PW- 13) are the injured in this case. They deposed, in terms of the prosecution version as stated above. 4-K. Badri Parsad, Sub Inspector, (PW-14), who was the Station House Officer, at the relevant time, investigated the case. 4-L. The Public Prosecutor for the State, tendered into evidence reports of the Forensic Science Laboratory Ex. PKK and Ex. PKK/1. Thereafter, he closed the prosecution evidence. 5. The statements of the accused, under Section 313 of the Code of Criminal Procedure were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Mahabir, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that there was a dispute, between his brother and one Devat Ram regarding the land. It was further stated by him that both of them entered into a compromise. It was further stated by him that the injured were caused injuries, by his brothers. It was further stated by him that before the death of his father, he (father) had given him 9 acres of land, more than his brother. He further submitted that he was falsely implicated, in this case with a view to create pressure upon him to give half of the land, to his brother. 6. Rajender son of Mangtu, Krishan, Pala, Chhabila, Shanker and Balwant in their statements under Section 313 of the Code of Criminal Proce- dure, stated that they were innocent. The accused, however, did not lead any evidence, in their defence. 7. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. The accused, however, did not lead any evidence, in their defence. 7. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by appellants. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellants, submitted that no offence, punishable under Section 307 of the Indian Penal Code was constituted, from the facts and circumstances of the case, as also the evidence, produced by the prosecution. He further submitted that none of the doctors declared any injury, on the person of the injured, as dangerous to life. He further submitted that the trial Court, thus, wrongly convicted and sentenced the accused for the offence, punishable under Sections 307 and 307/149 of the Indian Penal Code. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. For determining, as to whether, an offence, punishable under Section 307 of the Indian Penal Code is constituted, from the evidence, produced by the prosecution, or not, the Court is required to take into consideration the intention or knowledge of the accused with which the injuries were caused on the person of the injured; the nature of injuries caused on the person of the injured; the parts of the body, on which the injuries were caused; and the motive for causing the injuries. One injury each, on the person of the injured was on the vital part of their body. As many as, three injuries on the person of the injured were declared grievous in nature. A number of injuries on the person of the injured, resulted into fractures. The weapons used were also sharp edged i.e. gandasis Froin all these factors, it was proved beyond doubt, that the accused had an intention or knowledge to cause such injuries on the person of the injured, as if death had resulted, on account thereof, they would have been guilty of murder. The weapons used were also sharp edged i.e. gandasis Froin all these factors, it was proved beyond doubt, that the accused had an intention or knowledge to cause such injuries on the person of the injured, as if death had resulted, on account thereof, they would have been guilty of murder. Even a simple injury on the vital part of the body of the injured, may constitute an offence, punishable under Section 307 of the Indian Penal code, if the intention or knowledge of the assailant was such as to cause his death In State of Maharashtra v. Balram Bama Patil and others, 1983, Crl.L.J. 331, it was held as under :- "It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to the actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault, should be sufficient, under ordinary circumstances to cause the death of the person assaulted. What the Court has to see, is whether the act irrespective of its result, was done with the intention or knowledge and, under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient, in law, if there is present an intent coupled with some overt act in execution thereof. The principle of law, laid down, in State of Maharashtras case (supra) is fully applicable to the facts of the instant case. The trial Court was, thus, right in holding that an offence, punishable under Section 307 of the Indian Penal Code was constituted. On re-appraisal and re-appreciation of evidence, this Court also comes to the same conclusion. The submission of the Counsel for the appellants, does not carry force, and the same is rejected. 11. The trial Court was, thus, right in holding that an offence, punishable under Section 307 of the Indian Penal Code was constituted. On re-appraisal and re-appreciation of evidence, this Court also comes to the same conclusion. The submission of the Counsel for the appellants, does not carry force, and the same is rejected. 11. It was next submitted by the Counsel for the appellants, that from the facts and circumstances of the case, as also the evidence, produced by the prosecution, it was not made out, that the accused were the members of an unlawful assembly, the common object whereof, was to cause dangerous to life, grievous as well as simple injuries, on the persons of the injured. He further submitted that had all the accused been members of an unlawful assembly, when they were armed with gandasies, they would have caused more serious injuries, on the person of the injured. He further submitted that, as per the prosecution story, the alleged occurrence took place at two places, at two different times. He further submitted that some of the accused were not present, at the time of the second occurrence and, as such, they could not be said to be the members of an unlawful assembly. He further submitted that the accused, if found guilty, could only be held liable for their individual acts. He also placed reliance on Jai Narain Mishra and others v. State of Bihar, 1972 Supreme Court Cases Cri. 40, in support of his contention. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It may be stated here, that, in the first occurrence, all the accused came to the spot, with gandasis, and all except Rajender son of Mangtu, attacked the injured. In the second occurrence also when Satbir was being taken to the hospital, on a cot, all the accused reached there with their respective weapons and some of them caused injuries on the person of Mohini and Banwari Lal. The first and the second occurrence took place, in quick succession. The sequence of events, therefore, clearly goes to show that the accused, had come together with deadly weapons, in their hands. All the accused, except Rajender son of Mangtu, were the members of an unlawful assembly, the common object whereof, was to cause dangerous, grievous and simple injuries, on the person of the injured. The sequence of events, therefore, clearly goes to show that the accused, had come together with deadly weapons, in their hands. All the accused, except Rajender son of Mangtu, were the members of an unlawful assembly, the common object whereof, was to cause dangerous, grievous and simple injuries, on the person of the injured. All the accused, except Rajender son of Mangtu, caused injuries, on the person of the injured. Thereafter, the accused left the spot with their respective weapons together. It, therefore, could not be said that the accused, except Rajender son of Mangtu, were not the member of an unlawful assembly, the common object whereof, was to cause different types of injuries, on the person of the injured. In Jai Narain Mishras case (supra), some of the accused were present at the time of the first incident, whereas, some of them, were present at the time of the second incident. It was, under these circumstances, that it was held that the accused were not the members of an unlawful assembly, and were responsible for their individual roles. The facts of the aforesaid authority are, thus, clearly distinguishable, from the facts of the instant case. No help, therefore, can be drawn, by the Counsel for the appellants, therefrom. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that no injury was attributed to Rajender son of Mangtu, and he was, thus, falsely implicated, in the instant case. The submission of the Counsel for the appellants, in this regard, appears to be correct. No doubt, as per the prosecution story, Rajender son of Mangtu was armed with a gandasi. However, no injury has been attributed to him, on the person of any of the injured. Had he been present at the time of the alleged occurrence, with gandasi, in his hand, he would have certainly participated therein and caused injuries on the person of the injured. He could not be expected to be a silent spectator. It is a matter of common experience, that, in this part of the Country, there is a tendency of roping in innocent persons, with the actual culprits. He could not be expected to be a silent spectator. It is a matter of common experience, that, in this part of the Country, there is a tendency of roping in innocent persons, with the actual culprits. In Tarlok Singh and others v. The State of Punjab, 1974, PLR 84 and Kashmir a Singh v. State of Madhya Pradesh, AIR 1952 (Supreme Court), 159, the principle of law. laid down, was to the effect, that the (tendency to include the innocent, with the guilty, is peculiarly present in India, and it is very difficult, for the Courts to guard against this danger. The only real safeguard, against the risk of condemning the innocent with the guilty, lies in insisting on independent evidence, which in some measures, implicates such accused. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. Since, the participation of Rajender son of Mangtu, accused, in the commission of crime,was doubtful, on account of the aforesaid factors, out of abundant caution, he is required to be given the benefit of doubt. The trial Court was wrong, in recording conviction and awarding sentence to Rajender son of Mangtu, accused. The appeal qua him deserves to be accepted. 13. It was next submitted by the Counsel for the appellants, that the appellants, have already undergone about 10 months of sentence each and a lenient view be taken by reducing the same. The submission of the Counsel for the appellants , in this regard, does not appear to he correct. No doubt, the FIR in this case was registered on 06.09.1992, and the appellants have been facing the protracted criminal proceedings, for the last more than 17 years, yet, it is not a fit case, in which lenient view should be taken in the matter of sentence. If, in such like cases, lenient view is shown, in the matter of sentence, it would tantamount to sending wrong signal to the society that the culprits after committing serious offences, on conviction are let off with meagre sentence. If, in such like cases, lenient view is shown, in the matter of sentence, it would tantamount to sending wrong signal to the society that the culprits after committing serious offences, on conviction are let off with meagre sentence. In the scenario which is prevailing in the Country, with the crime rate rising day by day, the life and liberty of the people, at large, being always in peril, and the criminals after committing the heinous crimes, roam about freely without any fear of law, deterrent punishment to the convicts, on conviction, in heinous crimes, is the need of the hour, without which, there will be total chaos in the society. Undue sympathy to impose inadequate sentence, would do more harm to the justice system, to undermine the public confidence, in the efficacy of law, and the society could no longer endure under such serious threats. It is, therefore, the duty of every Court, to award proper sentence, having regard to the nature of offence, and the manner, in which it was executed or committed. Reduction of sentence, in this case, would amount to mockery of Justice system. In this view of the matter, the submission of the Counsel for the appellants, being without merit, is rejected. 14. No other point, was urged, by the Counsel for the parties. 15. In view of the above discussion, the judgment of conviction and the order of sentence, rendered by the trial Court, qua Mahabir son of Hans Raj, Shanker son of Bhola, Chhabila son of Sheo Ram, Pala son of Sheo Ram, Krishan son of Musadi and Balwant son of Prabhu, being based on the correct appreciation of evidence, and law, on the point, warrant no interference. The judgment of conviction and the order of sentence qua Rajender son of Mangtu, being not based on the correct appreciation of evidence, and law, on the point, deserve to be set aside. 16. For the reasons, recorded above, Criminal Appeal No. 322-SB of 1997, filed by Mahabir son of Hans Raj, Shanker son of Bhola, Chhabila son of Sheo Ram, Pala son of Sheo Ram, Krishan son of Musadi and Balwant son of Prabhu, being devoid of merit, must fail and the same stands dismissed. The judgment of conviction and the order of sentence qua them are upheld. In case they are on bail, their bail bonds shall stand cancelled. 17. The judgment of conviction and the order of sentence qua them are upheld. In case they are on bail, their bail bonds shall stand cancelled. 17. Criminal Appeal No. 322-SB of 1997, filed by Rajender son of Mangtu is accepted. The judgment of conviction and the order of sentence, rendered by the trial Court qua him, is set aside. If he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required, in any other case. 18. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, qua Mahabir, Chhabila, Pala, Balwant, Krishan and Shanker and, in accordance with law qua Rejender, and submit the compliance report within two months. 19. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame. 20. The Registry shall keep track of the matter, and put up the compliance report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the same.