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2019 DIGILAW 2353 (PNJ)

Krishan v. State Of Haryana

2019-08-27

HARINDER SINGH SIDHU, RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This appeal is instituted against judgment dated 11.02.2016 and order dated 17.02.2016, rendered by learned Additional Sessions Judge, Bhiwani, in Sessions Trials No. 160 of 30.07.2012, 275 of 04.12.2012 and 114 of 15.04.2013. Appellants Krishan, Raju, Parveen, Sunder son of Ami Lal, Sandeep, Brahmjit, Nar Singh and Sunder son of Rajpal were charged with and tried for the offences punishable under Sections 148, 323 and 302 read with Section 149 IPC. They were convicted and sentenced as under :- Sr. No. Under Section Sentence 1 148 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- each, and in default of payment of fine, to further undergo simple imprisonment for a period of six days each. 2. 302 read with Section 149 IPC To undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each, and in default of payment of fine, to further undergo simple imprisonment for a period of six months each. 3. 323 read with Section 149 IPC To undergo rigorous imprisonment for a period of six months. All the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nutshell, is that on 09.03.2012, Sita Ram (PW.1) made a statement that he was resident of village Kharak Kalan. On 07.03.2012, Krishan son of Chander was abusing Subhash, on the eve of Holika Dahan. Brahmjit son of Krishan inflicted danda blow to Subhash son of Rajpal at about 10.00/11.00 AM. Due to this, at about 3.00 PM, Pawan son of Mamraj, Uggarsain son of Rajpal and Subhash son of Rajpal were sitting in front of their house. Brahmjit again started abusing. It aggravated the situation. Raju, Krishan, Parveen, Sunder son of Ami Lal, Sunder son of Rajpal, Nar Singh alias Narsi, Sandeep and 2-3 other persons arrived there. Brahmjit was carrying pharsa in his hand. He inflicted injury on the right side of his head. Raju son of Krishan inflicted iron rod blow on his right shoulder. Krishan son of Chander Singh inflicted lathi blow on his back. Sunder was having rod with him. Nar Singh alias Narsi and Sandeep were carrying pharsas with them. They caused injuries to Pawan, Uggarsain and Subhash. The injured were taken to PGIMS, Rohtak. Ruqa was sent to police station. Krishan son of Chander Singh inflicted lathi blow on his back. Sunder was having rod with him. Nar Singh alias Narsi and Sandeep were carrying pharsas with them. They caused injuries to Pawan, Uggarsain and Subhash. The injured were taken to PGIMS, Rohtak. Ruqa was sent to police station. Case under Sections 147, 148, 149 and 323 IPC was registered. On 13.03.2012, a telephonic message was received from Incharge, Police Post PGIMS, Rohtak in the police station that Subhash son of Rajpal had died on 12.03.2012. Thereafter, offence under Section 302 IPC was added. Post mortem was got conducted. Accused were arrested. The prosecution moved an application under Section 319 Cr.P.C., when statement of PW.1 Sita Ram was recorded on 14.08.2013, for summoning of additional accused, namely Sunder. The application was allowed by the trial court on 08.10.2013. Fresh consolidated charge sheet was framed against the accused by the court vide order dated 16.01.2014. 3. The prosecution examined as many as twenty two witnesses. The accused were also examined under Section 313 Cr.P.C. They denied the case of the prosecution. According to them, they were falsely implicated. They also examined Bikram Singh as DW.1 and Dr. Naresh Kumar as DW.2. 4. The appellants were convicted and sentenced, as noticed herein-above. Hence, this appeal. 5. Learned counsel appearing on behalf of the appellants has vehemently argued that the prosecution has failed to prove its case. Learned counsel appearing for the State has supported the judgment and order of the learned Court below. 6. We have heard learned counsel for the parties and gone through the judgment and record very carefully. 7. Pw.1 Sita Ram deposed that on 07.03.2012, there was festival of Holi. The festival was solemnised in front of his house. Accused Krishan was abusing Subhash. On the next day, i.e. 08.03.2012, at about 10.00/11.00 AM, accused Brahmjit gave a danda blow to Subhash. On the same day at about 3.00 PM, he along with Subhash, Pawan and Uggarsain was sitting in front of their house. Accused Brahmjit came and started abusing them. Thereafter, Raju, Krishan, Parveen, Sunder son of Ami Lal,Sunder son of Rajpal, Nar Singh, Sandeep and 2-3 other persons also came there. They were carrying rods, lathis and pharsas in their hands. Brahmjit was carrying pharsa. Raju and Sunder son of Ami Lal were carrying rods. Nar Singh and Sandeep were carrying pharsas. Accused Brahmjit came and started abusing them. Thereafter, Raju, Krishan, Parveen, Sunder son of Ami Lal,Sunder son of Rajpal, Nar Singh, Sandeep and 2-3 other persons also came there. They were carrying rods, lathis and pharsas in their hands. Brahmjit was carrying pharsa. Raju and Sunder son of Ami Lal were carrying rods. Nar Singh and Sandeep were carrying pharsas. Sunder son of Rajpal and Parveen were carrying lathis. Krishan was carrying iron pipe. They surrounded them and started causing injuries to them. Brahmjit gave pharsa blow on right side of his head. Raju gave rod blow on his right shoulder. Krishan gave a pipe blow on his back. All accused also gave injuries to Subhash, Pawan and Uggarsain with their respective weapons. Accused Krishan gave a pipe blow on the head of Subhash. Brahmjit gave pharsa blow on the head of Subhash. Raju gave a rod blow on his shoulder. Nar Singh gave a pharsa blow from reverse side of his hands. Sunder son of Ami Lal inflicted rod blow on his back. Parveen gave lathi blow on his stomach. Sunder son of Rajpal inflicted lathi blow on his back and Sandeep gave pharsa blow on his back. Harpal, Anil and other persons came on the spot. They shifted them to PGIMS, Rohtak. Subhash was serious and he was admitted there. They went to General Hospital Bhiwani and were admitted there. Police recorded his statement vide Ex.PA. In cross-examination, he was confronted with his statement Ex.PA with regard to the manner in which the accused had administered beatings to them and more particularly to Subhash. He admitted in his cross-examination that they were conscious when they reached General Hospital Bhiwani. None of them had gone to report about the occurrence in Police Station Sadar Bhiwani. They came to know about admission of the accused on the next day at about 9.00/10.00 AM. 8. Pw.2 Uggarsain corroborated the statement of PW.1 Sita Ram, regarding the manner in which the fight had taken place. In his crossexamination, he was also confronted with his statement Ex.DA. 9. Pw.3 Dr. Sant Lal Beniwal medico legally examined Sita Ram, Uggarsain and Pawan. He proved their MLRs vide Ex.PB/1, Ex.PB/2 and Ex.PB/3, respectively. He sent ruqa Ex.PB/4 to Police Post, General Hospital, Bhiwani. He led his evidence by filing affidavit Ex.PB. He noticed following injury on the person of Pawan :- 1. 9. Pw.3 Dr. Sant Lal Beniwal medico legally examined Sita Ram, Uggarsain and Pawan. He proved their MLRs vide Ex.PB/1, Ex.PB/2 and Ex.PB/3, respectively. He sent ruqa Ex.PB/4 to Police Post, General Hospital, Bhiwani. He led his evidence by filing affidavit Ex.PB. He noticed following injury on the person of Pawan :- 1. Lacerated wound of size 5 cm x 0.5 cm present on left parietal region. Bleeding present. Injury was kept under observation. Kind of weapon was blunt and probable duration of injury was within six hours. He found the following injuries on the body of Uggarsain :- 1. Lacerated wound of size 3 cm x 0.5 cm present on left side occipital region. Bleeding present. 2. Lacerated wound of size 1.5 cm x 0.5 cm/3 cm x 0.5 cm, Y shape present on right parieto occipital region. Bleeding present. 3. Bruise mark of size 10 cm x 2 cm present on left forearm. 4. Bruise mark of size 5 cm x 2.5 cm present on right shoulder. All injuries were kept under observation and kind of weapon was blunt. Probable duration of injuries was within six hours. He noticed the following injuries on the body of Sita Ram :- 1. Lacerated wound of size 3 cm x 0.5 cm present on left parieto occipital region. Bleeding present. 2. Lacerated wound of size 4 cm x 0.5 cm present on right parietal region posterior part. 3. Bruise mark of size 6 cm x 2 cm present on right scapular region. Reddish in colour. All injuries were kept under observation and kind of weapon was blunt. Probable duration of injuries was within six hours. 10. Pw.4 Dharmender Singh prepared scaled site plan Ex.PC. 11. Pw.5 Dr. Kunal Khanna conducted post mortem examination on the body of Subhash. He proved the post mortem report Ex.PD/1. He led his evidence by filing affidavit Ex.PD. According to him, the cause of death was head injury and its complications. All the injuries were ante mortem in nature. In his cross-examination, he admitted that injuries No.1 and 2 were operational injuries. Injury No.2 contained the underline damage over the brain and operational removal of the skull bone. Possibility of injuries No.3, 5, 6 and 7 by fall could not be ruled out. Injuries No.3 to 7 were not caused by any sharp weapon. Injury No.4 could be due to dragging. Injury No.2 contained the underline damage over the brain and operational removal of the skull bone. Possibility of injuries No.3, 5, 6 and 7 by fall could not be ruled out. Injuries No.3 to 7 were not caused by any sharp weapon. Injury No.4 could be due to dragging. He could not comment about the duration between injuries and death. 12. Pw.6 HC Vijender Singh deposed that accused Raju and Krishan were arrested on 13.03.2012 by Rajesh Kumar Inspector. Accused Raju produced one iron rod. Accused Krishan produced one iron pipe. Accused Sandeep was arrested on 17.03.2012. Danda was got recovered at his instance. Accused Parveen made disclosure statement Ex.PH on 20.04.2012. 13. Pw.7 ASI Karanvir Singh deposed that accused Sunder son of Ami Lal was arrested by Rajesh Kumar Inspector on 25.03.2012. He produced one iron rod. 14. Pw.8 Dr. Pardeep Kumar medico legally examined Subhash vide MLR Ex.PK. He tendered his affidavit Ex.PK/2. He gave his opinion vide Ex.PL/1 on application Ex.PL moved by the police. He noticed following injury on the person of Subhash :- 1. Lacerated wound of size 3 cm x 1 cm present over parietal region of skull. Advised surgery opinion. Other injuries could be added if found during course of treatment. In his cross-examination, he specifically deposed that he did not remember if there was any other injured with Subhash. 15. Pw.12 Galla Ram Sub Inspector had moved application Ex.PL before Medical Officer, PGIMS Rohtak for taking opinion of the doctor. Dr. Parveen gave opinion vide Ex.PL/1. 16. Pw.13 HC Sanjay recorded statement of Sita Ram vide Ex.PA. 17. Pw.14 Dr. Chanderbhan deposed that Subhash was admitted in PGIMS Rohtak on 08.03.2012 with alleged history of assault under the effect of alcohol with history of LOC present. CT scan was advised. Patient was operated upon. 18. Pw.15 Dr. Deepak Phogat radiologically examined Subhash on 08.03.2012. He proved CT scan report Ex.PT/1. There was subdural haemorrhage of size 11.2 x 9 x 1.1 cms over left cerebral hemisphere and interhemisphere fissure. There was mid line shift of 1.1 cm towards right side. There was fracture of left temporal bone. He proved X-ray report Ex.PT/2. CT scan films are Ex.PT/3 and Ex.PT/4. 19. Pw.16 Dr. Bal Kishan Goel deposed that on 08.03.2012, patient Subhash was brought in Man Sarover Hospital, Rohtak by his attendants at 10.40 PM with history of assault. There was mid line shift of 1.1 cm towards right side. There was fracture of left temporal bone. He proved X-ray report Ex.PT/2. CT scan films are Ex.PT/3 and Ex.PT/4. 19. Pw.16 Dr. Bal Kishan Goel deposed that on 08.03.2012, patient Subhash was brought in Man Sarover Hospital, Rohtak by his attendants at 10.40 PM with history of assault. On 12.03.2012, attendants shifted the patient to PGIMS Rohtak. He issued a reference letter on his letter pad on 12.03.2012. 20. Pw.17 Dr. Dhurva Chaudhary deposed that Subhash was admitted in PGIMS Rohtak on 12.03.2012 in a serious condition. He died at 12.50 AM on 13.03.2012. 21. Pw.20 Rajesh Kumar deposed that he arrested accused Raju and Krishan on 13.03.2012. Accused Raju produced one iron rod and accused Krishan produced one iron pipe. He arrested accused Sandeep on 17.03.2012. He got recovered one danda. He arrested accused Sunder on 17.03.2012. One danda was produced by Sandeep. Another accused by the name of Sunder was arrested by him on 25.03.2012. One iron rod was produced by him. He arrested accused Parveen Kumar on 19.04.2012. On 20.04.2012, Parveen Kumar made disclosure statement Ex.PH. 22. Pw.21 Dalip Singh deposed that accused Brahmjit was arrested by Inspector/SHO Ramesh Kumar on 08.10.2012. He produced one pharsi. He also made disclosure statement Ex.PX/2. He pointed out the place of occurrence. 23. Pw.22 DSP Ramesh Kumar deposed that accused Brahmjit produced one pharsi Ex.P5. He made disclosure statement Ex.PX/2, pointing out the place of occurrence. 24. Dw.2 Dr. Naresh Kumar medico legally examined accused Krishan and Brahmjit. He led his evidence by way of affidavit Ex.DW.2/A. He proved their MLRs Ex.DW.2/B and Ex.DW.2/C, respectively. There was fracture of right clavicle bone of Krishan and nasal bone fracture of Brahmjit. 25. According to PW.8 Dr. Pardeep Kumar, when he medico legally examined Subhash on 08.03.2012, he had noticed only one injury on the body of Subhash. It was a lacerated wound of 3 cm x 1 cm over parietal region of skull. PW.14 Dr. Chanderbhan also deposed that he was posted as Senior Resident in PGIMS Rohtak on 08.03.2012. Subhash was admitted in the hospital. CT scan of head was advised. PW.15 Dr. Deepak Phogat had radiologically examined Subhash. He proved CT scan report Ex.PT/1, X-ray report Ex.PT/2 as well as CT scan films Ex.PT/3 and Ex.PT/4. PW.16 Dr. PW.14 Dr. Chanderbhan also deposed that he was posted as Senior Resident in PGIMS Rohtak on 08.03.2012. Subhash was admitted in the hospital. CT scan of head was advised. PW.15 Dr. Deepak Phogat had radiologically examined Subhash. He proved CT scan report Ex.PT/1, X-ray report Ex.PT/2 as well as CT scan films Ex.PT/3 and Ex.PT/4. PW.16 Dr. Bal Kishan Goel of Man Sarover Hospital, Rohtak, also deposed that on 08.03.2012, patient Subhash was brought to his hospital. He referred the patient to PGIMS, Rohtak on 12.03.2012. PW.17 Dr. Dhruva Chaudhary had also examined patient Subhash in ICU. According to him, Subhash died at 12.50 AM on 13.03.2012. 26. Pw.3 Dr. Sant Lal Beniwal had medico legally examined Sita Ram, Uggarsain and Pawan. Appellants Krishan and his son Brahmjit had also received injuries. They were medico legally examined by DW.2 Dr. Naresh Kumar. Appellant Krishan had fractured his right clavicle bone and appellant Brahmjit had fractured his nasal bone. 27. The statement of Sita Ram was recorded vide Ex.PA. He had not mentioned specific injuries attributed to the accused on the body of Subhash. However, while appearing as PW.1, he categorically attributed roles and the manner in which the appellants had given beatings to Subhash. Similarly, Uggarsain had got recorded his statement Ex.DA, but did not mention the role played by each appellant. However, in his statement while appearing as PW.2, he categorically gave names of the appellants who had inflicted injuries to Subhash with weapons carried by them. 28. The attention of the court was drawn to the site plan Ex.PC. It was prepared by PW.4 Dharmender Singh. It is evident from the site plan that the quarrel had taken place at point 'A', opposite to the house of appellant Krishan. Appellants Krishan and Brahmjit had received injuries. Their MLRs were duly proved by DW.2 Dr. Naresh Kumar. The prosecution has not explained the injuries received by Krishan and his son Brahmjit. Subhash had received injuries and remained in the hospital. He died at 12.50 AM on 13.03.2012 due to head injury and its complications. He had received only one injury on his head, as per the statement of PW.8 Dr. Pardeep Kumar. He was also operated upon. Sita Ram, Pawan and Uggarsain had also received injuries. The weapons of offence i.e. lathi, pharsas and iron rods were produced by the appellants. He had received only one injury on his head, as per the statement of PW.8 Dr. Pardeep Kumar. He was also operated upon. Sita Ram, Pawan and Uggarsain had also received injuries. The weapons of offence i.e. lathi, pharsas and iron rods were produced by the appellants. According to the site plan Ex.PC, the fight had taken place in front of the house of appellant Krishan. It is, thus, evident that the complainant party had gone to attack the appellants in front of the house of appellant Krishan. Though case of the prosecution is that the accused party did not receive any injury, but the fact of the matter is that Krishan and Brahmjit had received grievous injuries. The tempers were running high between the parties since 07.03.2012, when according to the prosecution case, Krishan abused Subhash. Thereafter, Brahmjit inflicted danda blow to Subhash on 08.03.2012 at 10.00/11.00 AM. Thereafter, fight took place at about 3.00 PM. A sudden fight had taken place, when the complainant party reached in front of the house of appellant Krishan at point 'A' as per the site plan Ex.PC. Since the complainant party had reached in front of the house of Krishan, their act cannot be termed pre-meditated. They had not taken undue advantage and not acted in unusual manner. Subhash had received only one injury, as per the statement of PW.8 Dr. Pardeep Kumar. 29. Learned counsel appearing on behalf of the appellants has vehemently argued that this case would fall within the ambit of Section 323 IPC. We do not accept this plea. In fact, this case would fall within Exception 4 of Section 300 IPC. The appellants had the knowledge that if the injury is inflicted on the head, it may cause death. Subhash had died due to head injury and its complications. The injury was ante mortem in nature as per the statement of PW.5 Dr. Kunal Khanna. Krishan and his son Brahmjit had also received injuries, resulting in fracture of right clavicle bone of appellant Krishan and fracture of nasal bone of appellant Brahmjit. 30. Accordingly, the appeal is partly allowed. Conviction of appellants under Section 302 read with Section 149 IPC is converted to Section 304 Part-II read with Section 149 IPC. Their conviction and sentence, as recorded by the trial court, under Sections 148 and 323 read with Section 149 IPC, are upheld. 31. 30. Accordingly, the appeal is partly allowed. Conviction of appellants under Section 302 read with Section 149 IPC is converted to Section 304 Part-II read with Section 149 IPC. Their conviction and sentence, as recorded by the trial court, under Sections 148 and 323 read with Section 149 IPC, are upheld. 31. Appellants Raju, Parveen, Sunder son of Ami Lal, Sandeep, Nar Singh and Sunder son of Rajpal are on bail. Appellants Krishan and Brahmjit are in custody. The State is directed to produce all the appellants before this Court on 03.09.2019, to be heard on quantum of sentence under Section 304 Part-II read with Section 149 IPC.