Singh Vs. State of Haryana  Insc 286 (27 April 2005)
Singh & Arun Kumar B.P.Singh, J.
sole appellant before us Balwan Singh has been sentenced to undergo life
imprisonment under Section 302 IPC and to six months imprisonment under Section
323/34 IPC by judgment and order of the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No.314-D of 1997
dated 20th August, 1998. The appellant A-1 along with Jai
Singh A-2, Inder Singh A3 and Rakesh A-4 were put up for trial. The Sessions
Judge, Sonepat by judgment and order dated 21/22 March, 1997 acquitted A4 Rakesh
but found remaining accused guilty of the offences under Sections 302/34 and
323/34 IPC. The High Court in appeal affirmed the conviction of the appellant
herein under Sections 302 and 323/34 IPC but acquitted A2 and A3 of the charge
under Section 302/34 IPC and convicted them instead under Section 323 IPC for
causing simple injuries to some of the witnesses. A2 was sentenced to undergo
rigorous imprisonment for six months and A3 was released on probation.
Therefore, the said A2 and A3 have not preferred appeals before this Court.
special leave petition has been preferred by the State of Haryana against the acquittal of A2 and A3
of the charges under Section 302/34 IPC.
case of the prosecution is that on the 23rd May, 1992 PW5 Virender Singh, son
of the deceased Ram Chander, a resident of village Nadipur Majra had gone to
attend the marriage of a friend in village Juan. The barat party had left for
village Juan at about 6.00 A.M. A1 and A2 who are brothers also went to attend
the same marriage on their motor cycle.
requested Balwan A1 to take the bridegroom on his motor cycle to the Chaupal of
the village for the vidai ceremony. This infuriated A2 Jai Singh and it is
alleged that he slapped PW5 which was followed by an altercation. While
returning to their village A1 and A2 threatened PW5 and told him that they will
teach him and his father a lesson after they returned to their village.
further case of the prosecution is that at about 7/7.30 P.M.when PW5 was going
to his house in the village, he saw that A1 to A4 were giving injuries on the
person of his father Ram Chander (deceased). They were armed with Jailis and lathis
and were inflicting injuries on his father in front of the house of Chander Bhan
Mahajan, a co-villager. He also noticed that his mother Omwati PW7, wife of the
deceased, and Tek Ram PW8, a neighbour had come to the rescue of his father. He
also rushed to the rescue of his father but when he was trying to do so, A1
aimed Jaili blow at him which injured him on his right shoulder while A3 struck
him on his left eye and the right shoulder. A4 aimed a Jaili blow at him which
injured the wrist of his left hand. Tek Ram PW8 was also given a blow on his
head by A2. When they raised alarm, all the accused ran away. The further case
of the prosecution is that injured Ram Chander was removed to the civil
hospital at Gannaur but they were advised to take him to the MCH hospital at Rohtak.
Instead of taking him to the hospital at Rohtak, they decided to take him to
AIIMS at Delhi but the authorities at the AIIMS directed them to the Safdarjang
hospital and from there they were directed to take them to Ganga Ram hospital,
where he was brought at about 3/3.30 A.M.on 24.5.92 i.e. early in the morning
following the evening of occurrence. A first information report was lodged by
PW5 at the Ganga Ram hospital on 25.5.92 at about 8.00 A.M. It appears from the record that the police officer who had
come to know about the occurrence went to the village to record the report but
on being told that the injured had been removed to Gannaur, he went to Gannaur
and thereafter ultimately found them at Delhi in the Ganga Ram hospital.
prosecution examined PW5, the informant, PW7 Omwati, wife of the deceased and
PW8 Tek Ram, a neighbour to prove its case. It also relied on the medical
evidence to prove that Ram Chander (deceased) had received serious injuries
which were sufficient in the ordinary course to cause death. As earlier
noticed, the trial court acquitted PW4 but found the remaining accused guilty
of the offence under Section 302/34 IPC. On appeal, the High Court acquitted A2
and A3 of the charge under Section 302/34 IPC but maintained the conviction of
the appellant under Section 302 IPC . A1 to A3 were also found guilty under
Section 323/34 IPC.
of the appellant and the other accused was that the occurrence did not take
place in the manner alleged by the prosecution. Their case was that deceased
Ram Chander was residing opposite the house of the Mehar Singh, elder brother
of all the accused.
Singh had young daughters living with him and Ram Chander deceased who was his neighbour,
used to pass remarks against them, which annoyed him and his family members.
allegations were made against the informant PW5 and other sons of Ram Chander(deceased)
who used to address his young daughters in abusive terms when they passed that
way. At 7.30 P.M.on the date of occurrence while Jai Singh A2 was standing in
the street in front of his house, Ram Chander(deceased) abused the daughters of
Mehar Singh, his elder brother and an altercation followed. Hearing the noise,
several persons came armed in support of Ram Chander (deceased) out of whom
some were armed with Jailies and others were armed with lathis. One Joginder
who was wielding a lathi assaulted Jai Singh A2 on his hand and head.
raised an alarm which attracted is younger brothers Balwan A1 and Inder Singh
A3 to the place of occurrence. They were also assaulted with lathis and Jailies
and sustained injuries.
injured were removed to the Government hospital at Sonepat. They were examined
by PW6 who fond serious injuries on their person and they also lodged a report
with the police on 24.5.92 at 9.30 A.M.
stating all these facts.
testimony of PW6, the doctor who had examined the accused was recorded as a
prosecution witness. Doctor Subodh Kumar PW6 stated that he had examined Inder
Singh A3 on 23.5.92 at 11.07 P.M.and found the following injuries on his
wound 5 cm x 1 cm x bone deep in left front to parietal region, fresh bleeding
present. Advised X-ray skull. A.P. and lateral views.
wound 7 cm x 1.5 cm, bone deep situated 2.5 cm posterior to injury No.1 fresh
bleeding present. Advised X-ray skull. A.P.and lateral views.
wound 6.5 cm x 1 cm, bone deep situated 2 cm posterior to injury No.2. Fresh
bleeding present. Advised X-ray skull. A.P.and lateral views.
wound 6 cm x 1.5 cm, bone deep situated in right frontal region.
bleeding present. Advised X-ray skull. A.P.and lateral views.
swelling left hand. Advised X-ray left hand A.P.and lateral views and
Orthopedic Surgeon's opinion.
of pain in lower thoracic spine, tenderness present. Advised X- ray T6 to T12
spines A.P.and lateral views and Orthopedic Surgeon's opinion.
wound 1/2 cm x 1/4 cm, over the dorsum of proximal inter phalyngeal joint of
right index finger, skin deep. Fresh bleeding was present." Similarly, he
examined Balwan Singh A1 at 11.20 A.M.and found the following injuries on his
wound 3 cm x 1 cm x bone deep in frontal region. Fresh bleeding was present. Advised
X-ray skull A.P.and lateral views and observation.
black eye present. Advised X-ray skull A.P.and lateral views.
swelling over right zygometic prominence. Advised X-ray fact A.P.and lateral
views and Orthopedic Surgeon's opinion.
2.5 cm x 1 cm over lateral aspect of right arm at the junction of upper and
middle third. Movements normal. Fresh bleeding was present.
swelling right forearm. Advised X-ray left hand A.P.and lateral views and
Orthopedic Surgeon's opinion." He also examined A2 Jai Singh and found the
following injuries on the person:
wound 3.5 cm x 1 cm x bone deep over occipital region. Advised X- ray skull A.P.and
lateral view. Fresh bleeding was present.
wound 1 cm x 1/2 cm x 1/2 cm over frontal region. Fresh bleeding was present. Advised
X-ray skull A.P.and lateral views.
swelling of right fore arm. Advised X-ray right fore arm. A.P.and lateral views
and Orthopaedic Surgeon's opinion.
2 cm x 1 cm over left acromine process.
of pain left index finger. No external mark of injury seen." The injuries
found on the person of A1 to A3 would disclose that they were assaulting on a
vital part of body, namely, their skull. The doctor did not express any opinion
about the nature of the injuries, awaiting X-ray report with regard to those
argued before us by counsel for the appellant that in the facts and
circumstances of this case, the failure of the prosecution to explain the
injuries on the person of the accused was fatal. He submitted that even the
High Court did not find the evidence of the witnesses to be wholly reliable,
and to some extent the findings recorded by the High Court are consistent with
the case of the defence, rather than the case of the prosecution. He submits
that in the facts and circumstances of this case, all the accused are entitled
to an acquittal, and in any case, entitled to the benefit of doubt. The
evidence on record probablises the defence of the accused, while the testimony
of the prosecution witnesses stand discredited by reason of their failure to
explain the injuries on the person of the accused.
for the State drew our attention to the defence of Omwati PW7 wife of the
deceased and sought to argue that in her deposition an explanation has been
offered for the injuries caused to the accused. She deposed that when she
apprehended danger to her husband she had handed over a lathi to him and that
he wielded his lathi to defend himself. She deposed that she had seen her
husband exchanging blows with the members of the defence party. The deposition
of PW5 is not acceptable for two reasons. Firstly, this was not stated by her
when she was examined under Section 161 Cr.P.C. She has not stated in her
statement recorded in the course of investigation that she had seen her husband
exchanging blows with the members of the defence party. Secondly, it is highly
improbable that the deceased Ram Chander all by himself could have caused so
many injuries to A1 to A3. Obviously, therefore, the explanation offered by Omwati
PW7 is in the nature of an after-thought.
the place of occurrence, there is considerable dispute. According to the
prosecution, the occurrence took place in the gali in front of the house of Chander
Bhan Mahajan. It is there that Ram Chander(deceased) was assaulted by the
accused. It is admitted by PW5 that from the place of occurrence as pointed out
by him no blood was recovered for chemical examination nor was any earth sample
taken for the purpose. That by itself may not be of very great significance,
but what is mattered is the fact that even the High Court found that this part
of the prosecution case is not true. The High Court found that the place of
occurrence must have been the lane in front of the house of the deceased. That
is precisely the defence case also. In effect the High Court has accepted the
place of occurrence as alleged by the defence, rather than the place of
occurrence as pointed out by PW5 in the course of her deposition. We can,
therefore, proceed on the basis that the occurrence took place in front of the
house of the Ram Chander where he was assaulted. That is consistently the defence
case, since house of Mehar Singh, brother of deceased is opposite the house of
question then arises whether the failure of the prosecution to explain the
injuries suffered by the accused is not fatal to the case of the prosecution.
It is true that in all cases failure of the prosecution to explain injuries to
accused may not be fatal, and that the consequence of to explain such injuries
depends upon the facts and circumstances of the case, the nature of the
occurrence and the nature of the injuries suffered by the accused. In this case
we find that the injuries suffered by A1 to A3 are numerous. We can say that
the injuries were serious because any of the injuries on the skull could have
proved fatal. Fortunately, that did not happen. The High Court noticing the
evidence took the view that though the prosecution had not explained the
injuries on the accused persons and may not have come out with a correct
version of the occurrence, this could be said to be a case of a free fight and,
therefore, right of private defence was not available to any of the
participants and each one must be held responsible for is own conduct and
action. We do not find ourselves in agreement with this view. The mere fact
that the accused are also found to have sustained serious injuries unexplained
by the prosecution does not necessarily give rise to an inference that there
must have been a free fight. In the instant case, we find that there is ample
evidence on record to establish that the occurrence took place in a different
manner altogether in which the accused were also injured. They were promptly
examined by the doctor who was examined as PW6, and they had also lodged a
first information report stating relevant facts and alleging that it was the
prosecution party which was the aggressor.
the facts of the case it becomes apparent that the prosecution has not
disclosed the true genesis of the occurrence. The motive suggested by the
prosecution does not appeal to us, because if there was an altercation between
A1 and A2 in village Juan when a request was made by PW5 to A1 to take the
groom on his motor cycle to the Choupal, there appears to be no reason why the
accused would have assaulted his father after returning to the village,
particularly, when PW5 was not with his father. The motive as alleged by the
prosecution does not appeal to us because it does not appear to be natural that
for the conduct of his son at a different place, the appellant would return to
the village and kill his father. Having regard to the place of occurrence as
found by the High Court, the defence of the accused is probablised. It is well
settled that while the prosecution has to prove its case beyond reasonable
doubt, the defence has only to produce evidence or show material on record
which proabablise its defence.
regard to the facts of the case and the findings of the High Court, we are satisfied
that the case of the prosecution is not proved beyond reasonable doubt. The
prosecution has not disclosed the true genesis of the occurrence. On the other
hand, the evidence discloses that the occurrence took place in a different
manner and at a different place in which three members of the defence party
also suffered serious injuries. In these circumstances, the appellant and the
other co-accused were at least entitled to the benefit of doubt.
therefore, allow the appeal, set aside the judgment and order of the High Court
impugned and acquit the appellant of all the charges levelled against him. The
special leave petition preferred by the State is dismissed.
bail bonds furnished by the appellant are discharged.