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PETITIONER: BHARTU & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       24/10/1996

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      G.B. PATTANAIK, J.      This appeal  is directed  against  the  conviction  and sentence passed  against  the  appellants  by  the  Sessions Judge, Jind  and upheld by the High Court in Criminal Appeal No. 494  of 1984.  The five  appellants stood  charged under Section 148  IPC, 302/149  IPC, 324/149 IPC 323/149 IPC. The learned Sessions  Judge convicted  all of  them for  all the offences charged and sentenced them to imprisonment for life and to  pay fine of Rs. 100/- or in default further rigorous imprisonment for  one month  for the  offence under  Section 302/149 IPC,  one year  R.I. for  offence under  Section 148 IPC, one year R.I. for offence under Section 323/149 IPC and six months R.I. for offence under Section 323/149 IPC with the  further   direction  that   the  sentences   would  run concurrently. All  of them  preferred criminal appeal to the High  Court  against  their  conviction  and  sentence.  The complainant filed  a criminal  revision which was registered as 1483  of 1984  praying for  enhancement of  sentence  and grant of  compensation  to  the  complainant.  The  criminal appeal as  well as  the criminal revision was disposed of by the impugned  judgment of  the High  Court dated 26th April, 1985. The  criminal  appeal  filed  by  the  appellants  was dismissed and the criminal revision filed by the complainant was allowed  to the  extent  that  the  amount  of  fine  if released shall  be paid  to the heirs of the deceased. Thus, the present appeal.      The prosecution  case in  brief is  that the  Panchayat elections had been held in village Shambo on 25th June, 1983 and in  the said  elections  the  people  belonging  to  the complainant party  had voted  for one  Surjit Sing  who  had contested for  the post  of Sarpanch. Said Surjit Singh was, however, defeated  and on that score the supporters of Jagat Ram had  grudge against the complainant party. On 17th July, 1983 at  8.30 p.m. the marriage procession of one Ram Rattan son of  appellant Mange  was being taken around the village. Mnage was  a partyman of Jagat Ram. When marriage procession was being lead by a group consisted of mostly womenfolk and the  accused appellants.  The accused  were in a drunken state and  were singing  filthy songs.  When the  procession

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reached the  house of  Gita  Ram.  some  of  the  witnesses, namely, Tara  Chand (P.W.8). Sita Ram (not examined), Narain Dutt (P.W.9),  Ganga Bishan  (P.W.1O) requested  the accused persons not  to sing filthy songs. The deceased Ram Pal also requested the  accused persons  not to sing filthy songs and proceed with  the marriage  procession.  Shortly  after  the altercation, the  accused  appellants  armed  with    deadly weapons like  gandasi. lathi. jaili attacked the complainant party. Appellant Manphal assaulted the deceased Ram Pal with gandasi and  the blow  fell on  the left arm of the deceased appellant Bhartu  attacked the  deceased by giving a blow on his head by means of gandasi. Karta Ram, Bhira and Mange the three other  appellants also assaulted the deceased with the weapons in  their hands. Apart from assaulting the deceased, they  also  attacked  different  persons  belonging  to  the complainant party  who were consequently injured. On hearing about the  incident several other villagers came running  to the spot  therefore, the accused persons left the place with the weapons  in  their  hands.  Injured  Tara  Chand,  Ganga Bishen. Narain  Dutt, Sita  Ram and  Ram Pal were removed to the hospital  at Rajound  where Ram  Pal  succumbed  to  the injuries. Tara  Chand though  initially was  in a precarious condition but  his condition  was improved and at 1 a.m. the treating doctor  certified him  fit to  make a statement and accordingly his statement was recorded by Sub-Inspector Bhup Singh and  on the  basis of the said statement formal F.I.R. (Ex P.EE)  was drawn up. The Investigating Officer then made the inquest  over the  dead body of the deceased Ram Pal and sent his  dead body  for autopsy.  The Investigating Officer then   started    investigation   and   on   completion   of investigation  submitted   a  charge-sheet.  The  Magistrate committed the  accused persons  to the  Court of Session and ultimately  the  learned  Sessions  Judge  tried  them.  The defence  of   the  accused   persons  was  that  it  is  the complainant  party   who  took   recourse  to  violence  and misbehaved with  the ladies  going in  procession  in  barat party and  as a  measure of self-defence the accused persons retaliated and  in course  of the incident Ram Pal died. The learned Sessions  Judge on  thorough scrutiny  of the entire evidence on  record and  relying upon the occullar statement of the  injured witnesses  P.Ws.8, 9  and  10  came  to  the conclusion that  the prosecution  case has  been established beyond doubt  and accordingly  convicted the  appellants for different offences for which they stood charged. The learned Sessions Judge  relying upon the evidence of Dr. Shyam Kalra (P.W.1) who  had medically  examined Ram  Pal on  17th July, 1983 as  well as  the evidence  of Dr. Surinder Kumar Mittal (P.W.6) who  had conducted the autopsy over the dead body of deceased Ram  Pal came  to the  conclusion that the death of deceased Ram  Pal  was  homicidal  in  nature.  The  learned Sessions Judge  also considered the plea of right of private defence as  taken by  the accused  persons and negatived the same in  view  of  the  cogent  evidence  of  three  injured witnesses referred  to earlier.  One of the accused, namely, Manphul had taken a plea of alibi and examining the same the learned Sessions  Judge  discarded  the  said  plea  as  the material on  record did  not support the aforesaid plea. The accused persons  also had taken a plea that some of them had been injured  in course  of incident and the prosecution not having explained  the injuries  on the  accused persons  the entire prosecution  case is  liable  to  be  discarded.  The learned Sessions Judge considered the aforesaid plea but did not find any substance in the same on the ground that it has not been  established that  injuries on  the accused persons were sustained  in course  of the  incident and further that

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the injuries  in question  were so  minor or simple injuries that the  prosecution is  not obliged  to explain  the same. With these  conclusions the  Sessions Judge having convicted and sentenced the accused appellants as already stated, they had moved an appeal to the High Court. Before the High Court the counsel  appearing for  the appellant  did not challenge the conclusion  of the  Sessions Judge  with regard  to  the homicidal death  of deceased  Ram Pal.  In view of clinching evidence of  the three  injured witnesses  who have  given a detailed narration  of the  incident and  not being  able to impeach the  testimony by  way  of  cross  examination,  the counsel  for   the  appellants   instead  of  attacking  the evidence, raised  contentions  to  create  doubt  about  the prosecution case  as a  whole on  the  ground  of  delay  in lodging the  F.I.R. and non examination of two other injured witnesses and  non-explanation  of  the  injuries  found  on accused Bhartu  and  Mange.  The  learned  counsel  for  the appellant also  raised the plea of self-defence but the High Court on reappreciation of the entire evidence negatived all the contentions raised and affirmed the conviction and sentence passed by the learned Sessions Judge.      Mr. Kapil  Sibal, learned  Senior counsel appearing for the appellants  mainly raised  the following  contentions in assailing the  judgments of  the learned  Sessions Judge and the judgment of the High Court:      1) The  entire prosecution story is      unbelievable  as   no   person   in      marriage procession of his, own son      would behave in a manner as alleged      by  the  prosecution  and,  on  the      other  hand   in  the   facts   and      circumstances of  the case the plea      suggested by the defence appears to      be more plausible.      2) Admittedly, three of the accused      persons having  sustained  injuries      and  no   explanation  having  been      offered  by  the  prosecution,  the      entire genesis  of the  prosecution      case falls  through and the accused      are entitled  to  be  acquitted  on      that ground.      3) The prosecution witnesses having      attributed  that   accused  Manphul      gave a blow with gandasi which fell      on the left arm of deceased Ram Pal      and  the   medical  evidence  being      contrary to  the occullar statement      in as much as no injuries are found      on the  left arm  of the  deceased,      accused  Manphul   is  entitled  to      benefit of doubt.      4)  Surjit   Singh  having  brought      deceased Ram  Pal and  injured Sita      Ram, Narain  Dutt, Ganga Bishan and      Tara Chand in his tractor trolly to      the   hospital   at   Rajound   had      sufficient opportunity  to  vitiate      the minds  of these  persons and to      rope in several innocent persons as      accused assailants  and that is why      the F.I.R.  version belatedly  made      does not depict the true picture.      The learned counsel appearing for the respondent on the other hand  connected that  the entire  prosecution evidence

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having been  duly scrutinised  by  the  Sessions  judge  and learned Sessions  Judge having  come to  the conclusion that the prosecution case has been proved beyond reasonable doubt and further  in appeal  the High  Court having reappreciated the entire  evidence  on  record  and  having  affirmed  the conclusion of  the  Sessions  Judge,  this  Court  will  not interfere with  the same  in exercise of power under Article 136 of  the constitution.  The learned counsel for the State also submitted  that non  explanation of  any injury  on the accused irrespective  of the nature of injury cannot be held to be  fatal to  the prosecution  case. He also resisted the contention of  Mr. Sibal  that the medical evidence does not confirm to  the prosecution evidence regarding the manner of assault on the deceased by Manphul.      In order  to appreciate  the contention  raised by  Mr. Sibal,  the   learned  senior   counsel  appearing  for  the appellants.  we   have  ourselves   scrutinised  the  entire evidence on  record and  we find  no substance in any of the contentions raised.  As has  been stated  earlier the  rival factions  had   grudge  against  the  other  on  account  of Panchayat election  in which  one party  had  supported  the defeated candidate and other party had supported the elected candidate. On  the fateful day while the marriage procession was being  taken out  in  village,  it  is  alleged  by  the prosecution that  the  procession  was  being  lead  by  the accused appellants  who were  drunk and  were using  abusing words and  when they  were requested  not to  indulge in the same. they  came out  with deadly weapons in their hands and started assaulting  the prosecution  witnesses and in course of such  assault the  deceased  Ram  Pal  belonging  to  the prosecution party succumbed to the injuries. The prosecution case as  depicted through  P.Ws.8, 9,  and 10 who themselves were also  injured in  course of such assault by the accused persons appears  to us  to  be  wholly  convincing  and  the evidence of these witnesses corroborate one another. Nothing has been  elicited in  their  cross-examination  to  impeach their testimony.  We are  not in  a position  to accept  the submission of  Mr. Sibal  that the  prosecution story on the face of  it is  unbelievable. On the other hand, after going through the  evidence we  are of the considered opinion that the prosecution case has been vividly described by the three injured witnesses  and the  said evidence  has rightly  been accepted by  the learned  Sessions Judge  as well  as by the High Court.  We find  nothing in  their evidence  to take  a contrary view. The first submission of Mr. Sibal accordingly stands rejected.      coming to  the question  as to  non-explanation of  the injuries on  the accused  persons it  appears that they were examined by Dr. Kalra on 22nd July, 1983 at 7.30 a.m. though the occurrence  took place  on 17th  July, 1983 at 8.30 p.m. Accused Karta Ram had an injury to the extent of 1 cm x 4 cm on the left side of the face and bruise with slight abrasion on the  left thumb  and another  abrasion on the back of the left elbow. Accused Mange had a bruise of 6 cm x 1 cm on the right shoulder and another bruise measuring 5 cm x 1.2 cm on the right  shoulder, accused Bhartu had abrasion of 1 cm x 1 cm on  the left knee joint and another bruise of 4 cm x 2 cm on the  left arm and swelling on dorsum of right hand. These injuries are  in fact such minor and small injuries that the prosecution is  not obliged  to explain  the same  and  non- explanation by the prosecution cannot be held to be fatal to the  prosecution  case.  Further  the  injured  having  been examined  only  after  5  days  of  the  occurrence,  it  is difficult to  hold that these injuries had been inflicted in course  of   the  incident.   In  such   circumstances  non-

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explanation of  aforesaid  injuries  on  the  three  of  the accused persons  cannot be held to be fatal to the case. Mr. Sibal’s contention  therefore, cannot be accepted. So far as accused Manphul  is concerned, we also do not find any force in the  contention of Mr. Sibal that the medical evidence is contrary to  the oral  evidence. It  has been  found by  the Doctor that  the deceased  Ram Pal  had  as  many  as  seven injuries with one injury on front of left arm measuring 7 cm x 3  cm. Thus,  it is not possible for us to hold that there is total absence of injuries on the left arm of the deceased and, therefore,  Manphul cannot  be held  to be  one of  the assailants of  the deceased.  That apart  as has been stated earlier the  three injured  witneses P.Ws.8,  9 and  10 have given a  very succinct version of assault by each one of the accused appellants  with different  weapons  of  offence  in their hands  on deceased  Ram Pal  and there  is nothing  in their evidence  in cross  examination to  discard  the  same consequently, we  are not  in a position to give any benefit of doubt  to accused Man Phul as contended by Mr. Sibal, the learned Senior  counsel appearing for the appellants. So far as the  contention regarding  opportunity of Surjit Singh to vitiate the  minds of  the injured  persons which ultimately resulted in  the delayed  F.I.R. and  inclusion of  innocent persons as accused persons and as assailants, we do not find any force  in the  said  contention.  The  medical  evidence clearly indicates that injured Tara Chand was brought to the hospital in  a precarious  condition and was not even fit to make a statement initially. It is only after some treatment been given  when he  was found  to be in a fit condition his statement was recorded and that statement was treated by the Investigating Officer  as  F.I.R.  In  this  fact  situation question of  Surjit  Singh  influencing  the  minds  of  the injured persons  and falsely  roping in  some of the accused persons as  assailants does  not arise.  It is no doubt true that the  injured persons  were brought  to the  hospital at Rajound by  Surjit  Singh  but  that  ipso  facto  does  not establish any  inducement by  Surjit Singh which resulted in roping  in   innocent  persons   nor  in   the   facts   and circumstances it can be said that there has been any initial delay in lodging the F.I.R. so as to create any doubt in the minds of the Court. That apart the evidence of three injured witnesses P.Ws.8,  9 and  10 having  not been  shaken in any manner, the  conclusion is irresistable that the prosecution case has  been proved  beyond doubt.  We, therefore,  do not find any  substance in  the said contention of Mr. Sibal. In our opinion,  the entire  prosecution case  has been  proved beyond reasonable  doubt  as  against  the  appellants  and, therefore, the conviction and sentences awarded against them does not  merit any  interference by  this Court. The appeal accordingly  is  dismissed.  The  conviction  and  sentences passed against them are affirmed. The appellants having been released on  bail by  this Court,  their  bail  bond  stands cancelled and  they are  directed to  surrender for  further serving the  remaining part of the sentence and if they fail to surrender, steps be taken for their arrest.