of Haryana Vs. Mange Ram & Ors  Insc
534 (11 December 2002)
Sabharwal & K.G. Balakrishnan. Y.K. Sabharwal, J.
father, his two sons and a brother-in-law, respondents herein, were charged for
causing grievous injuries to the deceased on 7th June, 1984 at 8.00
p.m. The deceased
succumbed to the injuries at a hospital at Rohtak on 10th June, 1984 at 6.30 a.m.
the four accused were charged for offence punishable under Section 302 read
with Section 34 of the Indian Penal Code (IPC). The Sessions Judge, Rohtak
acquitted all the four accused for the offence under Section 302/34 IPC. They
were, however, found guilty of having committed offences punishable under
Sections 325/34 and 326/34 IPC. All were sentenced to seven years' rigorous
imprisonment for offence under Section 326/34 IPC and five years for offence
under Section 325/34 IPC.
aforesaid conviction and sentence was challenged by the prosecution as well as
the respondents by filing appeals in the High Court the State contending that
the respondents were liable to be convicted for offence under Section 302/34
IPC and the respondents contending that they were wrongly convicted for the
offences as aforesaid and deserved to be acquitted. The High Court, by the
impugned judgment, allowing the appeal of the respondents, acquitted them
altogether and resultantly the State appeal was dismissed.
State has filed this appeal on grant of leave.
to the prosecution, on the date of occurrence, Mange Ram, who at that time was
about 58 years of age attacked the deceased by giving a lathi blow on his left
calf, his son Krishan gave a pharsa blow on his right foot and the other son Joginder
Singh hit him with ballam on the right calf and Kaptan Singh, brother-in-law of
Mange Ram, gave him a lathi blow on the left wrist. Joginder also gave ballam
blow on left elbow of the deceased felling him on the ground whereafter all the
four accused inflicted more injuries on the deceased while he was lying on the
ground. After inflicting these injuries, they ran away from the place of
occurrence which was witnessed by PW5 Bhim Singh and one Sant Ram, in front of
whose house the deceased was smoking hukka. Information regarding the
occurrence was given by PW5 to the Sube Singh (PW8), father of the deceased.
came to the spot. The deceased was removed to Civil Hospital, Bahadurgarh and was medically
examined by PW4 Dr. D.S. Rana who discovered the following injuries on his person
swelling covering whole upper two-third left leg, crepitus present.
were restricted and tenderness was present.
X-ray of the left leg, upper two-third A.P. and lateral view.
stab incised wound 1.5 cm x 1 cm x muscles cut on anterior aspect of right leg,
7 cms below right knee joint, blood clots were removed from the wound. Bleeding
was present with a swelling around the wound. X-ray was also advised.
Incised would 7 cm x 3 cms x muscle deep. Bleeding was present on the lateral
aspect of the right ankle and foot. Wound was curved in shape.
12 cms x 2.5 cms reddish in colour, on lower lateral aspect right side of
lacerated would 1.2 cm x 0.5 cm x skin deep on lateral aspect of right arm, 6 cms
above right elbow joint. Bleeding was present. Advised X-ray of right arm,
lower one-third A.P. and lateral view.
abrasion 1.5 cm x 1 cm on posterior lateral aspect right thigh, 3 cms above mid
lacerated wound 3 cm x 0.75 cm on lateral side of left elbow joint.
was present. Advised X-ray.
welling 5 cms x 3 cms on medial and lower aspect of left forearm.
contusion 10 cm x 2.5 cm reddish, on posterior aspect of right side of the
chest scapular region.
contusion 8 cm x 1.5 cm reddish in colour, on posterior aspect of right side of
chest at right angle to injury No.9.
1, 2 and 8 were declared grievous. After the medical examination, the deceased,
on the advise of the doctor, was removed from Civil Hospital, Bahadurgarh to
Medical College and Hospital, Rohtak. As already noticed, the deceased
succumbed to injuries on 10th June, 1984. The autopsy of the dead body was
performed by PW3 (Dr. Veena Bansal). PW3 also noticed the aforesaid injuries.
On opening of the chest, PW3 found that the ribs at the deceased had been
fractured from both sides and the liver was ruptured. In the opinion of PW3,
rupture of liver was sufficient to cause death in the ordinary course.
in hospital, the statement of the deceased was recorded by Head Constable Dharamvir
(PW9) at 10.30 a.m. on 8th June, 1984, on the basis whereof, formal first information was
recorded under Section 324 and 323 read with Section 34 IPC.
upon the prosecution evidence, in particular, the statement of PW5 and PW9 and
the statement of the deceased recorded by PW9 which, after the death, was
treated as dying declaration, the Sessions Judge convicted all the four accused
in the manner aforestated. The dying declaration is Exhibited PQ.
motive of the crime, as established by the prosecution according to the
judgment of the Sessions Judge, is that the deceased who was a Police Constable
in Delhi Police was helping the parents of wife of accused Krishan who was
being tried for the offence of his wife's murder. That finding has not been
disturbed by the High Court in judgment under appeal. The trial court, as also
the High Court did not rely upon the testimony of PW8. His presence at the
scene of occurrence was considered doubtful. We would also keep out of
consideration the testimony of PW8.
High Court discarded the testimony of eye-witness PW5 as also the dying
declaration (Exhibit PQ) and consequently the conviction and sentence of the respondents was
set aside. We have gone through the evidence on record, in particular, the
testimony of the doctors, that of Bhim Singh and the head constable (PW5 and
PW9) and the dying declaration (Exhibit PQ). In our opinion, the view of the
High Court is not a reasonable view of the evidence and the reasons for
discarding PW5 and the dying declaration (Exhibit PQ) are wholly untenable.
main reason for discarding Exhibit PQ is that when the statement was recorded
by the Police, the deceased was not under the shadow of death and the injuries
received by him were not even considered dangerous to his life. The other
reason given is delay in recording Exhibit PQ with the result that there was
ample intervening time for deliberation and false implication of the accused on
account of previous enmity as also the non-examination of Sant Ram by the
prosecution and introduction of PW5 as a false witness in the dying
basic infirmity committed by the High Court is in assuming that for a dying
declaration to be admissible in evidence, it is necessary that the maker of the
statement, at the time of making statement, should be under the shadow of
is not what Section 32 of the Indian Evidence Act says. That is not the law in India. Under Indian Law, for dying
declaration to be admissible in evidence, it is not necessary that the maker of
the statement at the time of making the statement should be under shadow of
death and should entertain the believe that his death was imminent. The
expectation of imminent death is not the requirement of law. The further
infirmity committed by the High Court in reversing a well considered judgment
of the Sessions Court is in assuming that there was any delay in recording of
Exhibit PQ. The High Court has rightly recorded that the deceased was not under
shadow of death when Exhibit PQ was recorded. Evidently, there was not a great emergency, on the facts
and circumstances of the case, to record the statement. Be that as it may, it
was fully established that there was no delay at all. Firstly, the High Court
committed an error in holding that the statement was recorded at 12.30 p.m. on 8th June, 1984.
It can neither be disputed nor has been disputed that the statement, in fact,
was recorded at 10.30
a.m. on 8th June. The
incident had taken place at 8.00 p.m. on
7th June. The injured reached Bahadurgarh Hospital at 11.50 p.m. He was examined by PW4 (Dr. D.S. Rana). The injuries were
considered serious. He was referred to Medical College and Hospital, Rohtak.
received Rukka (Exhibit PE) along with copy of medico legal report of the deceased from Civil Hospital, Bahadurgarh at about 2.00 a.m. on 8th June. He went to the Hospital but found that the injured had
been removed to hospital at Rohtak. He returned to the police station and went
to Hospital at Rohtak next day morning at about 9-9.30 a.m., presented an application (Exhibit PN) to the doctor to
find out if the deceased was fit to make statement. Doctor (PW7) gave opinion
(Exhibit PN/1) to the effect that injured was fit to make a statement.
receipt of the opinion, PW9 recorded the statement of injured which was
completed at 10.30 a.m. Under these circumstances, it is
not reasonable to conclude that there was any delay in recording of the
statement and drawing influence therefrom that the intervening time was
utilized for deliberation and false implication on account of the previous enmity.
On the facts and circumstances of the case, the question of any deliberation
and false implication would not arise. Undisputedly, injured was fully
conscious. He watched the accused giving injuries on his person. It would be
too much to imagine that despite seeing these injuries inflicted on him, he
would, while making statement, implicate the respondents on account of previous
enmity leaving the real person who had inflicted injuries altogether free. The
injured in his statement had given a detailed account of the injuries as also
the manner in which PW5 Bhim Singh witnessed the occurrence and tried to
intervene in the matter and rescue and save him. There was no plausible reason
whatsoever to discard Exhibit PQ and testimony of PW9. The prosecution had given up Sant Ram as he had
business dealing with the accused and, according to the prosecution, had been
won over. The statement Exhibit PQ inspires confidence and was rightly relied upon by the Sessions Court.
The High Court committed serious illegality in concluding that Exhibit PQ was
inadequate to connect the accused with the crime.
reasons for not believing PW5 are also wholly unsustainable. Main reason for
disbelieving him was that he was a chance witness. The High Court lost sight of
the fact that PW5 was a resident of the same village as the accused and the
deceased. The fact that PW8 in his police statement failed to mention about the
presence of PW5 at the place of occurrence, in the facts of the case, was an
irrelevant circumstance for disbelieving PW5. PW5 had given details of all the
injuries inflicted by the accused. Nothing worthwhile could be extracted in his
cross-examination. He was a natural witness. He tried to intervene and save the
deceased. He went to the house of the deceased to inform his family members
about the incident. PW5 was an independent witness. Despite the fact that he
did not go to the hospital but independently the injured in his statement
Exhibit PQ stated about the presence of PW5 at the time of occurrence and his
efforts to save the deceased. We are of the view that PW5 is a natural,
truthful and creditable witness and his testimony was rightly relied upon by
the Sessions Judge in convicting the respondents. On irrelevant considerations,
his testimony was discarded by the High Court.
next question is the nature of offence the respondents had committed. As
already noticed, the Sessions Court acquitted them of charge under Section
302/34 IPC. The High Court did not go into the nature of offence in view of
acquittal of the respondents. The Sessions Judge, for coming to the conclusion
that the respondents could not be convicted for offence under Section 302, had
relied upon the medical evidence of PW4. PW4 was the first doctor who had
examined the deceased in Bahadurgarh Hospital. He had deposed in cross-
examination that none of the injuries, either individually or collectively,
appeared to be dangerous to life. The injured was last attended by Dr. A.N. Gupta
(PW7) in the Medical College and Hospital, Rohtak. According to him, the
injured was initially given blood of 'A' group but subsequently blood of that
group went out of stock and, therefore, he was given blood of 'O+' group. The
witness further deposed that he could not say if the patient died because of
blood reaction or because of injuries suffered by him but he did depose that
there was fear in his mind about blood reaction and, therefore, he gave
medicines to prevent it. Under these circumstances, the Sessions Judge
concluded that the possibility of the injured having died because of blood
reaction cannot be ruled out though doctor conducting post mortem had deposed
the cause of death as rupture of liver on account of injuries. The view taken
by the Sessions Judge is a plausible view and, therefore, we are unable to
accept the contention of the learned counsel for the State that the respondents
deserved to be convicted for offence under Section 302/34IPC. In our view, they
were rightly convicted for offence under Sections 325 and 326 read with Section
34 IPC by the Sessions Judge, Rohtak.
impugned judgment of the High Court is set aside and the conviction, as
directed by the Sessions Judge, Rohtak is restored.
sentences awarded by the Sessions Judge on the respondents have been noticed in
the earlier part of the judgment. Having regard to the facts of the case, in
our view, the ends of justice would be met if each of the respondents are
sentenced for rigorous imprisonment for a period of four years instead of seven
years and five years as directed by the Sessions Court. We order accordingly.
appeal is accordingly allowed in above terms. The respondents shall be taken
into custody forthwith to undergo remaining part of the sentence.