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CASE NO.: Appeal (crl.)  1387 of 1999

PETITIONER: Umrao

RESPONDENT: State of Haryana & Ors.

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

WITH  Criminal Appeal No.1388/1999 State of Haryana                                                        \005   Appellant Versus Babu Lal & Ors.                                                 \005    Respondents

S.B. SINHA, J :

The appellant before us in Criminal Appeal No.1387/99 is the first  informant of First Information Report (FIR) No.386 lodged on 17.9.1992 at  Narnaul Police Station in Tehsil Narnaul in relation to an occurrence which  took place at about 6/6.30 A.M. on that day wherein the respondent Nos.2 to  6 in Criminal Appeal No.1387/99, respondents in Criminal Appeal No.  1388/99, along with one Ram Dayal, were arrayed as accused for alleged  commission of an offence punishable under Sections 148, 302/149, 307/149,  325/149 and 506/149 of the Indian Penal Code (’I.P.C.’, for short).  In the  said FIR, it was alleged by the appellant herein, Umrao, that at the said hour,  i.e., 6/6.30 A.M. he went to the tubewell owned by his brother Rewti, along  with his son-Rajinder and his brother.  They found that the accused persons  were removing the electric motor therefrom.  On their asking the accused  persons not to do so, Yad Ram hurled a blow by the reverse side of "kassi",  which he was carrying in his hand, on the head of Rajinder (since deceased).   Rajinder is son of the appellant.  He further hurled a blow with the said  "kassi"on the head of the deceased, who fell down.  The accused-respondent  No.2-Babu Lal and respondent No.3-Ram Swarup also hurled several blows  with "jelly" and "lathi" respectively, on the waist and back side of shoulders  of the deceased.  Respondent No.5-Golu Ram caused one injury on the head  while respondent No.6-Ramji Lal caused one injury on the left elbow and  another on left rib of the appellant-Umrao by giving several lathi blows.   Yad Ram again inflicted a "kassi" blow from its reverse side on the right rib  of Rewti.  Ram Dayal caused injuries on the waist and one injury each on  both the hands of Rewti.   

It is not disputed that some of the respondents also suffered injuries.   Rajinder (since deceased) was admitted in the Civil Hospital, Narnaul on  17.9.1992.  He was discharged from the said hospital on 25.9.1992 at about  8 A.M.  He was again admitted in the hospital on the same day.  At about  9.25 P.M. on 28.9.1992 he was operated upon by Dr. Sanjeev Dua (P.W.8).   Rajinder expired on 30.9.1992.   

After the deceased was admitted to the hospital, an information was  sent to the Narnaul Police Station, whereupon the P.W.12-Anishi Lal, Head

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Constable visited the hospital and recorded the statement of the appellant at  about 2.30 P.M.  The FIR was lodged on the same day at 2.40 P.M. on the  basis of the said statements. The defence of the respondents as regards the death of the said  Rajinder was that after his discharge from the hospital on 25.9.1992, he fell  down from the staircase of his house at about 7.15 in the evening as a result  whereof he sustained head injuries leading to his death.   

The accused persons, respondents Nos.2 to 6 herein, together with  said Ram Dayal were put on trial for alleged commission of the said  offences.  The Additional Sessions Judge, Narnaul, by reason of his  judgment dated 30.11.1995 convicted them for commission of offences  under Sections 148, 302/149, 307/149 and 325/149 of I.P.C., but, acquitted  them of the charges under Section 506/149 I.P.C.  The learned Trial Judge  passed the judgment acquitting Ram Dayal having regard to his age.   

For causing the death of Rajinder, under Section 302/149 I.P.C. the  respondent Nos.2 to 6 herein were sentenced to undergo imprisonment for  life and to pay a fine of Rs.2000/- each.  They were furthermore sentenced to  undergo rigorous imprisonment for four years under Section 307/149 I.P.C.  for attempt to murder Rewti and sentenced to undergo rigorous  imprisonment for two years for causing grievous hurt to the appellant herein.   They were moreover convicted under Section 148 I.P.C. and sentenced to  undergo rigorous imprisonment for six months.  In default of payment of  fine, the accused were to undergo further rigorous imprisonment for one  year.  All the sentences were, however, directed to run concurrently.  The  learned trial judge, while recording the judgment of conviction and sentence,  relied upon the evidence of the appellant herein (examined as P.W.9.) and  one Har Dhian (P.W.10) who were eye-witnesses to the occurrence.  The  learned Trial Judge also noticed that the deceased had suffered the following  ante-mortem injuries:

"1.     A lacerated wound 8.3 x 1 cms. On the right parietal  temporal region.  Bone deep.  Edges were irregular and  contused. 2.      A lacerated wound 3 x 1 cms on the left parietal region.   It bled on cleaning. 3.      A lacerated wound 3 x 1 cms on the left shoulder.  It was  muscle deep and there was an abrasion in continuation of  3 cms size. 4.      A reddish contusion 5 x 1.5 cms on the left shoulder on  its lateral aspect.  Swelling was present. 5.      A reddish contusion 8 x 1.5 cms on the left scapular  region, 4 cms from injury No.4. 6.      Multiple abrasions five in number from 1.2 x .5 cms to 1  x 1 cm. on the left side of scapular region.  Oozed blood  was clotted. 7.      A reddish contusion 10 x 1.5 cms on the left scapular  region, 5 cms from injury No.5. 8.      A reddish contusion 15 x 1.5 cms on the left scapular  region. 9.      A reddish contusion 20 x 1.5 cms on the left side of the  chest, 4 cms from injury No.8. 10.     A reddish contusion 14 x 1.5 cms on the right scapular  region. 11.     13 x 1.5 cms reddish contusion on the right side of loin  swelling was present."

The Trial Judge further noticed that the appellant and the said Rewti  had suffered the following injuries on their person:

"Injuries sustained by the appellant-Umrao : 1.      A lacerated wound 3 x 1 cms on the left front parietal  region.  It was bone deep.  Edges were irregular and

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contused. 2.      A lacerated wound 1.5 x 1 cms on the left scapular  region.  It was having an abrasion of 7 x .3 cms in the  continuation of injury downwards. 3.      A reddish contusion 5 x 3 cms on the left hand.  Swelling  was present on metacarpal region. 4.      Complained of pain on the left side of the chest with  redness on the lower half on chest. 5.      A reddish contusion 2 x 2 cms on the left elbow."

"Injuries sustained by Rewti :

1.      A reddish contusion 14 x 1 cms on the left side of chest.   It was also present on scapular region.  Swelling was  present. 2.      A reddish contusion 6 cms x 1.5 cms on the right side of  scapula. 3.      A reddish contusion 6 x 1 cms on the left side of lion  regions.  Swelling was present. 4.      A reddish contusion 8 x 2 cms on the right side of lion.   Swelling was present. 5.      A reddish contusion 6 x 2 cms on the lateral aspect right  side of chest.  Swelling was present X-ray was advised  for ribs. 6.      Abrasion 10 x .5 cms on the medical side of left forearm. 7.      An abrasion 1 x 5 cms on the posterior of right middle  finger."

       On an appeal being preferred from the said judgment of conviction  and sentence by the respondents herein, the High Court set aside the  conviction of respondents under Sections 148/149, 307/149 and 302/149  I.P.C.   The High Court, however, convicted Ramji Lal for causing grievous  and other injuries to the appellant and sentenced him to undergo one year’s  rigorous imprisonment for commission of an offence punishable under  Section 325 I.P.C. and two years’ rigorous imprisonment for an offence  punishable under Section 326 I.P.C.  The High Court furthermore convicted  Golu Ram for causing injuries to the appellant and sentenced him to undergo  one year rigorous imprisonment for the offence punishable under Section  325 I.P.C. and two years’ rigorous imprisonment for the offence punishable  under Section 326 I.P.C., Babu Lal and Ram Swarup were sentenced to  undergo rigorous imprisonment for two years for commission of the offence  punishable under Section 326 I.P.C.   

The High Court set aside the conviction and sentence of Yad Ram  under Section 148, 325/149, 307/149 and 302/149 and sentenced him to  undergo rigorous imprisonment for five years under Section 304 Part-II  I.P.C. for causing injury on the head of Rajinder and directed him to pay a  fine of Rs.5000/-, in default whereof, to further undergo rigorous  imprisonment for one year and also sentenced him to undergo two years  rigorous imprisonment under Section 326 I.P.C. for causing grievous injury  to Rewti.  It was directed that out of the amount of fine of Rs.5,000/-, which  was to be deposited by accused-Yad Ram, a sum of Rs.1,000/- to be paid to  Rewti by way of compensation and the balance of Rs.4,000/- to be paid to  the appellant herein.   

       The High Court, in its judgment, opined that the claim of the appellant  that he and Ramji Lal had dug well was not borne out from his statement  before the police.  His statement that he had installed the electric motor in  the well was also found to be not correct.   

As regards the defence of the respondents was that the said well was  dug by them in their own land and it was Ram Dayal who installed the said  motor and obtained an electric connection.  Before the trial court, defence  witnesses were also examined to show that the electric connection was  obtained by Ram Dayal in respect of the motor in question.  The defence,

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however, contended that it was in fact the complainant and other witnesses  who were removing the electric motor from the well and when they forbade  them from doing so, they were attacked.  It was concluded that on the date  when the accused Babu Lal, Ram Swarup and Yad Ram came to know that  the appellant herein and the others were removing the motor, they came to  the place of occurrence and asked them not to do so.  But, not only they did  not pay any heed thereto, but also attacked and caused injuries to Babu Lal,  Ram swarup and Yad Ram, who, in exercise of their right of self-defence,  caused some injuries to the prosecution party.   The High Court recorded:

"\005.From the evidence available on record, we are  of the view that the occurrence must have been the  result of a sudden quarrel between these two  parties, and that it was not a pre-meditated  incident, because, even in the F.I.R. itself it has  been stated that when the complainant-party  forbade the accused Babu Lal took jaily, accused \026  Yad Ram took a kassi and the other accused took a  lathi each and attacked them (complainant party)."

The High Court opined that it was the complainant-party who came to  the land of Ramji Lal where the well was situated, which was a joint well  belonging to both the parties.  The High Court was also of the view that the  appellant along with his Rewti and his son had gone to the fields for no  special purpose and thus there was no question of respondents’ forming an  unlawful assembly with the object of killing Rajinder and inflicting injuries  to the complainant-Umrao and Rewti.  It was held:

"\005.This is obviously so because the accused- Ramji Lal could not have expected these persons  to come to the place of occurrence at that time.  It  is clear from the evidence that accused \026 Ram  Dayal had secured an electric connection for the  motor on 3.9.1992 i.e. a few days prior to the date  of occurrence whereas, even in November 1991  the service connection in the name of Rewti was  disconnected.  Therefore, it is seen that disputes  had arisen between the parties with regard to the  motor which had been installed by Ram Dayal.   Obviously, the accused-party would not remove  the motor belonging to Ram Dayal or even Rewti.   The complainant party must have been aggrieved  since Ram Dayal had installed a motor and  obtained a separate service connection also, while  they were not able to use the motor and because of  this, there should have arisen a dispute leading to a  sudden quarrel between both the parties without  any pre-arranged plan, in which both the sides had  sustained injuries."     

It was further found that the injuries on the person of the respondents- Babu Lal, Ram swarup and Yad Ram had not been explained.  It, therefore,  came to the conclusion that there must have been a free-fight between the  parties in which persons from both the sides were injured.   

It was concluded:

"These circumstances go to show that the  contention of the prosecution that the accused had  formed themselves into an unlawful assembly with  the common object of killing Rajinder and causing  injuries to Umrao and Rewti cannot be accepted."

       On the aforementioned premise the High Court took into

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consideration individual roles played by the respondents herein.  It also  considered the question as to whether death of Rajinder took place as a result  of injuries suffered by reason of injuries inflicted by the respondents or  whether the defence version was true.   

The High Court, upon analysing the materials on record came to the  conclusion that when Rajinder was admitted in the hospital on 17.9.1992, no  fracture was found on his head.  His condition was found to be normal  throughout his treatment.  No abnormality was detected in his condition, but,  when he was re-admitted in the evening of 25.9.1992, he was stated to have  shown history of vomiting after taking food.  He was also found to be  vomiting at the time of his admission in the hospital.  He was found to be in  a delirious condition.  After he was brought to the hospital on that day, an X- ray was taken and a fracture of the size of 3 cm x 0.4 cm on his head was  detected.  The C.T. Scan examination also revealed that there was a large  intra cerebral haemotoma.

       The High Court noticed:

"\005The evidence of Dr. Sanjeev Dua (PW-8)  shows that as per C.T. Scan report a very large  intra cerebral haemotoma was found and there was  also large collection of blood in the brain.  He  specifically stated that it is unusual for the patient  to remain conscious after sustaining injury like  this.  Therefore, if there was such an injury on the  head of Rajinder on 17-9.1992 itself leading to the  above said consequences, it is improbable that he  could have been conscious throughout the period  from 17-9-1992 to 25-9-1992 when he was  discharged finding no abnormality in him."

As regards the explanation offered by the prosecution that such head  injuries might not have been found in the X-ray taken and furthermore the  death might have taken place due to delayed complication, the High Court  opined:

"In view of our findings above that the  injury, which ultimately proved fatal, was caused  to Rajinder after the discharge from the Civil  Hospital, Narnaul but before his re-admission on  the same night, that this injury could not have been  caused on the date of the occurrence namely,      17-9-1992, that the accused had not constituted an  unlawful assembly with the common object of  killing Rajinder or attacking the other injured, that  a sudden quarrel had ensued between the parties in  which Yad Ram had inflicted two blows on the  head of Rajinder, and also in view of the fact that  Yad Ram had only used the reverse side of the  kassi, we are of the view that none of the accused  could be convicted of an offence under section 148  or under section 302 read with section 149 of the  Indian Penal Code."

Mr. R.K. Kapoor, learned counsel appearing on behalf of the appellant  took us through the judgment of the learned Trial Court to contend that the  defence story that the deceased-Rajinder had another fall from the staircase  at about 7/7.15 on 25.9.1992 has been disbelieved therein on assigning  cogent and sufficient reason therefor.  In this behalf our attention has also  been drawn to the following findings of the learned trial Judge:     

"\005I do not find any merit in the contention of the  learned counsel for the accused.  It is true that  Rajinder was admitted to the Civil Hospital,

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Narnaul, on 17-9-1992 and was discharged on 25- 9-1992 at 8 A.M.  Dr. Vijay Singh PW-1, has  stated in cross-examination that Rajinder was re- admitted on the same date and was referred to the  Medical College & Hospital, Rohtak, on his  advice.  He has further explained that he has the  experience of delayed head-injury complications  taking place within a period of two years.  Dr.  M.P. Lomoria PW-2, who had radiologically  examined Rajender, has stated that he is not an  expert radiologist and that the X-ray machine  installed at Narnaul in the hospital is small one and  sometimes bone injuries are not detectable.  As per  copy of the MLR Ex.PN of Rajender, as many as  11 injuries were found on his person, out of which  two were lacerated wounds on the parieto temporal  regions.  One injury was bone deep.  Rajender was  operated upon by Dr. Sanjeev Dua PW-8 on 28-9- 1992 and he was testified that had found blood  collection inside the brain.  He has also stated that  Rajender had died on 30-9-1992 because of the  hemorrhage in the brain.  In cross-examination he  stated that as per C.T. report there was very large  intra-cerebral haematoma with rupture of blood in  the ventricle and there was a fracture in his skull.   He also stated that the possibility of having  received the head injury by Rajender after his  discharge on 25-9-1992 and before his re- admission on the same date could not be ruled out.   From the evidence of the aforesaid Medical  Officers it is clear that the fracture of skull of  Rajender was not detected by Dr. M.P. Lomoria  PW-2, when he had radiologically examined him.   It was for this reason that Rajender was discharged  from the hospital on 25-9-1992, but on the same  day he developed complications because of the  head injury.  There was no external injury on the  head at the time of re-admission in the hospital as  stated in re-examination by Dr. Vijay Singh      PW-1."

It was urged that the High Court committed a serious error in holding  that no offence under Section 307/149 I.P.C. was made out for causing  injuries to Rewti, in view of the clear findings of the learned Trial Judge  relying on or on the basis of the deposition of Dr. A.K. Chhakkar (P.W.7).   According to the learned counsel seven injuries were found on the person of  Rewti and thus, there was a possibility that the said injuries could prove to  be dangerous to life.  It was also urged by Mr. Kapoor that the High Court  also committed an error in arriving at the finding that there was a free-fight  between the parties, in view of the fact that it was not necessary on the part  of the prosecution to explain the injuries on the person of the respondents  herein.   

In the instant case, we are only concerned with the question as to  whether the respondents had any intention to cause the death of the deceased  Rajinder and attempt to murder Rewti.   

The fact that the parties were armed, is not in dispute.  The plea of the  respondents was that the injuries were inflicted on the deceased Rajinder as  also upon the appellant and Rewti in exercise of their right of self-defence.   It may not be necessary for the prosecution to explain the injuries on the  person of the accused in all circumstances, but, it is trite that when such a  plea is raised and the court opines that the version of the accused persons  may be correct, the explanation of injuries on the person of the accused  cannot be put to a back seat or cannot simply be ignored.  We have perused

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the evidence of Dr. Sanjeev Dua, who examined himself as P.W.8.  Dr. Dua,  in his evidence, stated that the possibility of Rajinder having received head  injury after the discharge at 8 a.m. on 25.9.1992 and before his re-admission  on the same day at 9 P.M. in the Civil Hospital, cannot be ruled out.  On re- examination by the prosecution Dr. Dua categorically stated that as there  was a head injury, he did not go into the detail.  The evidence of Dr. Dua,  whereupon the learned Trial Judge, inter alia, relied upon is suggestive of  the fact that the possibility of the said deceased Rajinder suffering a head  injury after he was discharged from the hospital could not be ruled out.  It is  not in dispute that X-ray of the head of the deceased was taken when he was  admitted in the hospital on 17.9.1992 but no such injury was detected.  The  subsequent explanation offered by the prosecution that a small fracture  might not have been noticed in the X-ray machine, is a matter of surmise and  conjecture.  We have noticed hereinbefore that Dr. Sanjeev Dua-P.W.8, who  had operated upon the deceased, categorically stated that the fracture was  significant.  Even according to the doctor such a fracture might have been  suffered by the deceased after he was discharged from the hospital.  

Evidently, the High Court was right in its finding that the appellant  could not be found to be guilty for causing the death of the deceased  Rajinder.   

Similarly, the findings of the High Court to the effect that the  respondents had not formed any common intention, therefore, cannot be said  to be suffering from any legal infirmity.  The fact that both parties caused  injuries to the members of the other side is not in dispute.  The fact that the  well was situated on the land of the respondent, is also not in dispute.  It has  been found as of fact that the electric motor installed in the well belonged to  one of the respondents.   

The prosecution laid a false claim thereover.  It is in this situation, the  respondents cannot be said to have committed any offence if they had been  removing the motor, which was installed by them, from the well, which is  said to be jointly owned by the parties.  If, on the other hand, defence  version is to be accepted, the appellant and the other witnesses having no  right over the said motor, could not have removed the same from the well.   In any view of the matter, the dispute was in regard to removing of the  motor from the well.  The High Court, thus, cannot be said to have  committed any error in arriving at the finding that the respondents had no  common object either to cause death of the deceased Rajinder or to attempt  to cause murder of Rewti.  It is now well settled that if two views are  possible, the appellate court should not interfere with the judgment of  acquittal passed by the court below.   We are satisfied upon examination of the materials on record and in  particular, evidence of P.W.8, that the view taken by the High Court is a  possible view.   

We, therefore, find it difficult to interfere with the impugned  judgment of the High Court.  Accordingly, the appeals are dismissed.