04 December 1996
Supreme Court
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BHUPINDER SINGH Vs STATE OF HARYANA

Bench: M.K. MUKERJEE,S.P. KURDUKAR
Case number: Crl.A. No.-001188-001188 / 1995
Diary number: 10892 / 1995
Advocates: CHANDER SHEKHAR ASHRI Vs


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PETITIONER: BHUPINDER SINGH & ANR.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       04/12/1996

BENCH: M.K. MUKERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      M.K. MUKHERJEE, J.      Bhupinder Singh  and Roshan  Lal,  the  two  appellants before us,  and four  others were  tried by  the  Additional Sessions Judge,  Yamuna Nagar  for offences punishable under Sections 148,  302/149, 332/189  and 506/149 [PC. The  trial ended in  convictions of  the  appellant  Roshan  Lal  under Sections 302  and 332/34  IPC, the appellant Bhupinder Singh and two  others under  Sections 302/34  and 332/34  IPC  and acquittal of  the four convictions of the two appellants but acquitted the  others. Hence  this appeal at the instance of the two appellants after obtaining special leave. 2.   Shorn of details the  prosecution case is as under : (a)  On March 12, 1990, Ghansham Dasa (P.W.7), a resident of Ambala Cantonment,  had come to Yamuna Nagar to meet his in- laws. In  that afternoon  he, along  with his two sisters-in law and  wife of  his brother-in-law has gone to see a movie was being screened the six accused, who were occupying seats in the  row behind  them, started  misbehaving  with  ladies accompanying P.W.7  Being exasperated  P.W.7 approached  Som Nath   (P.W.6), manager  of the  Cinema Accompanied  by Head Constable (HC)  Ram Het  (P.W.G.), who  was then  on duty at that place,  P.W.6 went  inside the  hall and   advised  the accused to  behave properly.  The respondent  to such advice for the  time   being but  after the  interval again started cutting jokes with those ladies. On getting that information P.W.G. summoned  Head Constable Balbir Singh (the deceased), who was  then on duty at the nearby Fountain Chowk, and both of them went inside the hall and brought all the six accused out the two Head Constables then took them to task for their misbehavior. Enraged  thereby some  of the  accrued  persons started hurling  abuses towards  them while others including the two  appellants tried  to run  away. The Head Constables and the  Manager of  the Cinema Hall then chased them. While being so  chased the appellant Bhupinder Singh jumped into a tanker lorry  (bearing registration  No. P(G 4869) which was parked outside the main gate of  the Cinema hall and brought out a  wooden balli  (Ext. P1/A)  from its  tool box, Roshan Lal, the  other appellant,  then snatched  that  balli  from Bhupinder Singh  and inflicted  a blow  with the same on the

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head of  H.C. Balbir  Singh, while some of the other accused persons including  Bhupinder Singh,  started assaulting H.C. Balbir Singh with kicks and blows. However, P.W.6 along with P.W.8  and  Mahesh  Kumar,  booking  clerk  of  the  Cinema, succeeded in  apprehending both  the  appellants  while  the other accused  persons managed  to flee away. At the time of their apprehension the two in the meanwhile a minor injuries in the  scuffle. In  the  meanwhile  a  police  flying  jeep arrived there  in which H.C. Dalbir Singh, who was seriously injured, was shifted to Civil Hospital, Yamuna Nagar. b)   On receipt  of a  radio message  at or about 6.45 P.M., inspector Raghbir  Sahal (P.W.11),  who was  then on  patrol duty,  reached   the  scene  of  occurrence  where  the  two appellants were  produced before  him P.W.  11 recorded  the statement of  P.W.6 and  forwarded the  some to  the  police station  for  registration  of  a  case.  He  then  took  up investigation and  formally arrested  the two appellants and seized the  balli (Ext.  P1/A), which was found lying there, and the  torn shirt  of H.C.  Ram was found lying there, and the torn  shirt of  H.C. Ram  Het. He also seized some blood stained  earth   from  the  spot.  While  at  the  place  of occurrence Raghbir  Singh got information about the death of H.C. Dalbir  Singh and  accordingly he  want  to  the  Civil Hospital and  after holding  inquest upon  the dead  body of H.C. Balbir Singh, sent it for post mortem examination. (c)  A  term  of  decision  including  Dr.  Akhilesh  Narain (P.W.1) held autopsy upon the dead body of H.C. Balbir Singh and found the following :      "A stitched  wound 1.1/2"  long was      present on  left side  of skull  on      temporal region  one inch below the      parietal  predominance.  The  wound      was having two stitches. There  was      a defused  swelling, all around the      wound  in   area  of   2.1/2".   On      exploration,    the    wound    was      lacerated and  was  bone  deep.  On      further exploration,      The doctors opined that the injustice were enter mortem and sufficient  to cause  death in  the ordinary  course  of nature.  P.W.11   also  got  the  two  appellants  medically examined  for  the  injuries  found  on  their  persons.  On completion  of   investigation  he  submitted  charge  sheet against the accused persons. 3.   The  appellants  pleaded  not  guilty  to  the  charges levelled against  them; and  in his statement recorded under Section 313 Dr. P.C. appellant Roshan Lal stated as under :      " and  Bhupinder Sing  were  seeing      the movie and in the meantime light      went  off   and  there   was   some      confusion. The  other  persons  who      were seeing  the movie  began to in      and out  of the  hall. Balbir Singh      raised  hue  and  cry,  the  public      objected to it at which Ram Het and      Balbir  Singh  began  to  beat  the      public. Somebody  out of the public      hit Balbir  Singh. We were later on      implicated falsely in this case. As      we  were  having  injuries  on  our      person, to  save  their  skin,  the      police has  concocted  this  story.      Ram Het  and Balbir Singh H.C. were      also seeing  the movie.  This is  a      false case  and the  witnesses  are

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    deposing falsely. I am innocent." 4.   To sustain  the charges levelled against the appellants the prosecution  examined 11  witnesses of whom H.C. Ram Het (P.W.8) detailed  the entire  prosecution story.  The  trial Court found  P.W.8 trustworthy  and as, according to it, his evidence stood  corroborated by  the evidence  of  Som  Nath (P.W.6) and  Ghansham Dass (P.W.7), the medical evidence and the recovery  of the  balli  at  the  place  of  occurrence, accepted the  case of  the prosecution in preference to that of the  defence. The  High  Court  concurred  with  all  the finding of  the trial  Court so  far as  they pointed to the guilt of the appellants. 5.   We have  perused the  judgments of  the learned  Courts below keeping  in view  that evidence on record and our such exercise  persuades  us  to  unhesitatingly  hold  that  the concurrent  findings   of  the   learned  Courts  below  are unexceptionable,  being  based  on  proper  appreciation  of evidence and cogent and convincing reasons. 6.   It was  however contended  by Mr.  Sharma, the  learned counsel for  appellants, that  having regard to the admitted fact that  both the  appellants had  injuries at the time of their arrest,  it was the bounden duty of the prosecution to explain how  they sustained  those injuries  and  consequent upon their  failure to  do so the learned Courts below ought not to  have  accepted  the  prosecution’s  version  of  the incident. It  appear that  this  contention  was  raised  on behalf of  the appellants  before the High Court also and it rejected the same with the following observations :      "This is not a case where it can be      said  that   the  injuries  on  the      person of the accused have remained      unexplained.    From    the    very      inception, the prosecution case was      that it  was during  the scuffle at      the time of occurrence that accused      Roshan Lal  and Bhupinder Singh had      received Single  injuries. There is      nothing un-natural  in this part of      the   prosecution case. It has come      in the  evidence that  the  accused      and their  companions had  tried to      run away  from the spot and in that      process,  accused  Roshan  Lal  and      Bhupinder   Singh    were   secured      whereas  their   other   companions      managed  to   escape.  Both   these      accused can  very well  receive the      minor injuries  while attempting to      release themselves  with a  view to      run away.  Both of them were infect      medically examined by the police in      which regard  copies of  their MLRs      have been  proved as  PT/1 and PW/1      respectively. The  perusal of those      medico-legal reports  would  reveal      that the  injuries suffered by them      are all  minor in nature and  these      can be  received  by  them  in  the      manner   as    suggested   by   the      prosecution."      Since we  are in  complete  agreement  with  the  above observations of  the High Court the contention of Mr. Sharma in this regard must be rejected. 7.   It was  next contended  by him  that  even  if  it  was assumed that  the entire  prosecution case  was  true  still

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Bhupinder Singh  could  not be hell guilty for injury caused by Roshan  Lal on  the head of Balbir Singh injury caused by Roshan La  on the heed of Balbir Singh with a balli with aid of Section  34 IPC  for the  only allegation  against him in this regard was that he took out the balli from the tool box of a tanker. We do not find any substance in this contention also. When  the totality of the circumstances culminating in the death of Balbir Singh is taken into account there cannot be any  escape from  the  conclusion  that  Bhupinder  Singh shared a  common intention  with Roshan  Lal for causing the death of  Balbir Singh.  The evidence on record unmistakably proves that  while discharging his duties at the Cinema hall 11.C Ram  Het (P.W.8)  had asked  the accused persons not to misbehave with  the ladies  who were  enjoying the movie. In spite of repeated requests made by the manager of the Cinema Hall and  the head  Constables the  accused  persons did not desist form behaving in an objectional manner. Then again in discharge of  his duties  when he  along  with  H.C.  Dalbir Singh, whose  services be  requisitioned, tried to apprehend the appellants, Bhupinder singh jumped into the lorry tanker and brought  out the  wooden balli  obviously to assault the Head Constables. Therefore simply because he did assault the deceased with  the balli  but Roshan Lal did after snatching it from him it cannot be said that Bhupinder Singh was not a party thereto. 8.   It was lastly confounded by Mr. Sharma that in any view of the  matter the  offence allegedly  committed by  the two appellants could  not be  said to  be one  under Section 302 IPC. We  are not  impressed by  this  argument  also  having regard to  the  circumstances  preceding  the  assault,  the weapon used,  the situs  of the  injury and  the force  with which the  blow was  inflicted, which  is evident  from  the nature and extent of the injuries described earlier. 9.   For the  foregoing conclusions the appeal fails and the same is  hereby dismissed the appellant Bhupinder Singh, who is on  balli, will  now surrender to his bail bonds to serve out his sentence.