Abbey Singh and Ors. vs State of Haryana

S.S. Dewan J.

Abhey Singh, Ranjit Singh, Bhim Singh, Karan Singh, Umrao Singh, Ram Kumar and Devi Singh, all residents of village Sihi were brought to trial before the Court of Session at Faridabad for committing the murder of Vir Pal deceased and for causing injuries to the witnesses and for rioting. The learned Additional Sessions Judge, Faridabad held them guilty and whilst convicting Abbey Singh and Ranjit Singh for the offences under Section 302/34, Indian Penal Code sentenced each of them to life imprisonment and a fine of Rs. 500/ They were also convicted under the subsidiary offences and sentenced to various terms of imprisonment and fine. All the sentences so awarded to them were, however, ordered to run concurrently. The learned Additional Sessions Judge convicted Bhim Singh Karan Singh, Umarao Singh, Ram Kumar and Devi Singh appellants for the offences under sections 148 and 326. 325, 324 and 323 read with Section 149, Indian Penal Code, but instead of being sentenced to any imprisonment. they were ordered to be released on probation to keep peace and be of good behaviour for a period of two years each. Feeling aggrieved, they have challenged their convictions and sentences. by filing Criminal Appeal No. 579DB of 1986.

All the seven accused are closely related to each other in as much as Bhim Singh and Ranjit Singh accused are real brothers being sons of Tulsi. Abbey Singh, Karan Singh, Umrao Singh and Ram Kumar accused are the sons of said Bhim Singh whereas Devi Singh accused is the son of Ranjit Singh aforesaid. Similarly, members of the complainant a party are also related inter se. Hukum Singh, Pohap Singh and Sham Singh are first cousins as their fathers were real brothers. Rajbir and Karambir PWs are the sons of said Hukum Singh whereas Pohap Singh had four sons, namely, Rajender, Jogender, Ved Pal and Vir Pal (since deceased). Umed Singh is the son of Sham Singh aforesaid.

The motive for the crime is stated to be that on 881985, there was some dispute between Abbey Singh accused and Umed Singh. Due to the said dispute, on the same day at about 8 P.M. Abbey Singh accused, his father Bhim Singh accused and Devi Singh accused gave beating to Sham Singh father of Umed Singh, as a result if which Sham Singh sustained some injuries on his person for which he got himself medically examined and thereafter lodged a report with the police on 981985, which offended the accused party.

The prosecution case is that on 1281985 at about 8 P.M., Abbey Singh accused alongwith his brother Ram Kumar, Ranjit Singh and his son Devi Singh were present near the baithak of Bhim Singh accused in the area of village Sihi and at that time, Vir Pal deceased, his father Pohap Singh and Umed Singh PW passed from that side while going to their houses. Abbey Singh accused then raised a Lalkara and proclaimed that a lesson would be tought to them (complainant party) for reporting the matter to the police by Sham Singh and also for their passing from that side. At that time Mukam Singh PW was sitting on the chabutra of his house at a distance of about 10/15 paces from that place. On hearing the lalkara of Abbey Singh accused, Hukum Singh also rushed to that place and found Ram Kumar, Ranjit Singh and Devi Singh accused present with Abhey Singh accused. Abbey Singh was armed with a Ballam whereas his coaccused Ram Kumar, Ranjit Singh and Devi Singh were armed with lathi each. In the meantime, Bhim Singh, Karan Singh and Umrao Singh accused alongwith Smt. Omkari wife of Bhim Singh and Smt. Shanti wife of Abhey Singh came to that place from their houses. Karan Singh accused was armed with a Ballam while the other persons named above were armed with lathi each. It is alleged that Ranjit Singh accused caught hold of VirPal in his grip and Abbey Singh accused gave a Ballam blow on his chest, as a result of which he fell down after covering a distance of about 15 paces. When his father Pohap Singh tried to rescue him, accused Ram Kumar gave a lathi blow on his head and another lathi blow on his left middle finger of the hand. Devi Singh accused gave a lathi blow on the left wrist of Pohap Singh and another lathi blow on the back side of his palm. On hearing the alaram raised by the abovesaid injured witness, Karambir and Ved Pal PWs. came to the spot. Karan Singh accused then gave a Ballam blow on the left side chest of Karambir PW under the nipple. Umrao Singh accused gave a lathi blow on the upper portion of the back of Karambir. When Hukam Singh tried to rescue the injured from the clutches of accused, Karan Singh accused gave a Ballam blow on his right hand which pierced through and through and another Ballam blow on his abdomen towards his right side. Bhim Singh accused gave a lathi blow on his right hand finger. As a result of these injuries, his right hand became permanently incapacitated. Devi Singh, Umrao Singh and Ranjit Singh accused caused some injuries to Ved Pal PW with their respective weapons. Bhim Singh and Ranjit Singh accused caused injuries to Rajbir PW with their weapons Ranjit Singh accused gave a lathi blow on the head of Umed Singh PW. It is a alleged that the complainant party also caused some injuries to accused Karan Singh, Devi Singh. Ranjit Singh and Ram Kumar accused and also to Smt. Omkari in their self defence. This occurrence was also witnessed by Niranjan Singh and Rohtas PWs. When the accused party bolted away with their respective weapons, Vir Pal, Pohap Singh, Hukam Singh, Karambir, Umed Singh, Ved Pal and Rajbir were removed to B.K. Hospital, Faridabad Vir Pal succumbed to his injuries on his way to the hospital. The injured persons were medicolegally examined by the doctors in the hospital. On receipt of intimation from the doctor, Sub Inspector Ishwar Singh, the then Incharge of Police Post, Sector 7, Faridabad, went to the hospital and recorded the statement Ex. PS of Pohap Singh at about 10.35 P.M. On the basis of that statement, formal FIR Ex. PS/2 was recorded at Police Station Central, Faridabad, at 10.55 P.M. Sub Inspector Ishwar Singh held inquest and sent the dead body of Vir Pal to the mortuary for autopsy. All the accused were arrested on 1781985 and in pursuance of their disclosure statements, they got recovered their weapons from the specified places of concealment. After necessary investigation, the accused were challaned and committed.

The ocular testimony consists of Hukam Singh PW12 and Pohap Singh PW13. Sub Inspector Ishwar Singh PW14 is the Investigating Officer. The remaining evidence is of formal and subsidiary nature. When examined under Section 313, Criminal Procedure Code. We accused denied the prosecution allegations and pleaded false implication in the can. Ram Kumar accused, however, gave his counter version in the following terms :

"Karan Singh, Umrao and Ranjit coaccused were sitting in from of their house on the Chabutra and were talking when Hukam Singh, Rajbir, Karambir, Pohap Singh, Jogender, Rajender, Umed Singh and Bir Pal came there armed with ballams and lathies and raised lalkara that they had given beating to Shyam Singh and that they should be taught a lesson for becoming Dada; and that on hearing the noise, Devi Singh coaccused, Smt. Omkari and Smt. Shanti also reached there and that myself and my son Sudhir aged 6/7 years were also sitting on the Chabutra at that time. That on reaching there, all the above said persons, caused injuries to Ranjit Devi Singh, Karan Singh and myself and (he two ladies Omkari and Shanti and the minor boy Sudhir with their respective weapons and that in the right of private defence of our persons, we also caused injuries to them. Bhim Singh and Abhey Singh accused were not present at the spot."

Ranjit Singh, Devi Singh and Karan Singh accused adopted the version given by Ram Kumar accused. Besides tendering into evidence certain documents, the accused examined Dr. Vijay Kumar Anand, Dr. V.K. Tyagi, Lalita Kumari Nurse, Ghansham, Vijay Kumar Sharma and Lakhan Singh in defence.

Mr. Dara Singh learned counsel for the appellants has strenuously urged that the accused committed no offence as they caused injuries to the deceased and his companions in exercise of their legitimate right of private defence of person. There appears to be substance in this contention It is manifest from the record that two well matched rival versions viz. for acceptance in this case. Fortunately for the appellants the medical testimony and the independent circumstantial factors seem to believe the version set up by the prosecution and totilt the case entirely in favour of the forthright plea of private defence taken by the appellants, Before proceeding with the examination of the contention of self defence advanced by the defence, it would be desirable to have some idea as to the injuries suffered by both sides in the occurrence.

Dr. Kusum Chaudhary PW I who conducted autopsy on the dead body of Vir Pal on 1381985 at 10.00 AM found a wound 5.5 cm above the right nipple on the right side of the chest located between 3rd and 4th fibs. On dissection of the wound it was found to be oblique. in the third interpostal space about 6 cm X 2 cm Clotted blood was present underlying muscles cut. Death was opined to be due to shock and haemorrhage as a result of injury to the vital organs which was sufficient to cause death in the ordinary course of nature. Dr. Vijay Kumar Anand PW2 medically examined Hakam Singh PW on 1291985 at 9 A.M. and found 5 simple injuries on him as detailed in the medicolegal report Ex. PD having been caused with blunt and sharpedged weapons within a duration of, 24 hours. On the Same day at about 9. 10 P.M. the doctor examined Karambir and. Pohap Singh PWs and found 2 injuries, on the former and four simple injuries on the latter as detailed in the medicolegal reports Ex. PE and Ex. PF respectively. Dr. B. Schotalle examined Umed Singh, Ved Kumar and Rajbir, all relations of the deceased and found four simple injuries on Rajbir, three simple injuries on Ved Kumar and one simple injury on the person of Umed Singh as detailed in their medicolegal reports.

Dr. Vijay Kumar Anand DW 1 medicolegally examined Sudhir son of Ram Kumar accused on 1281985 at 9.40 PM and found 2 simple. injuries on his person as detailed in the medicolegal report Ex. DK. On the same day at about 10 P. M., the doctor examined Omkari wife of Bhim Singh accused and found 7 simple injuries on her person as detailed in the medicolegal report Ex. DM. Dr. B. Schotalle PW 1 examined Ranjit Singh accused and found 5 injuries on his person as detailed in the medicolegal report Ex. DA. He also examined Karan Singh son of Bhim Singh accused on 12.8.1985 at 9.10PM and found four simple injuries on his person as detailed in the medicolegal report Ex. DB. Ram Kumar son of Bhim Singh was examined on the same day at 9.40 PM and the doctor found 5 simple injuries on his person as detailed in the medicolegal report Ex. DC. On the same day the doctor examined Devi Singh son of Ranjit Singh accused and found one sharpedged weapon injury on his person as detailed in the medicolegal report Ex. DD. Smt. Shanti wife of Abhey Singh accused was examined on the same day at 11.04 PM and the doctor found three simple injuries on her person as detailed in the medicolegal report Ex. DE.

The above break up of the injuries would show that the appellants side suffered as many as 26 injuries from blunt and sharp edged weapons whereas the complainant party sustained 18 injuries. The point that falls for determination is as to whether the fight originated in the manner as suggested by the prosecution or as suggested by the defence. While considering this aspect we have to keep in view the fact that both the eyewitnesses were partisan and inimical towards the accused party. It is also an admitted fact that the occurrence took place at about 8 P. M. on 12 81985 whereas the FIR was recorded at 10 55 PM at Police Station. Faridabad, at a distance of 5 kms. from the place of occurrence. The Special Report reached the Ilaqa Magistrate on 13.8.1985 at 2.05 A.M. The explanation for the delay noticed while recapitulating the facts of the case appears to be unconvincing. Inordinate delay in the lodging of the First Information Report obviously allowed considerable time to the complainant party to evolve a thoughtout version. In this state of affairs, the testimony of the eyewitnesses has to be scrutinised very critically. There can of course be no doubt about the presence of, the eyewitnesses at the time of occurrence as both of them happened to be stamped witnesses but being partisan and inimical witnesses, they are likely to suppress their own part and exaggerate that of the opposite party in the occurrence in which both sides suffered injuries and as the version given by them has to pass the test of probabilities. As per the prosecution version the appellants were the aggressors who had armed themselves with Ballams and lathies and had launched a premeditated and designed attackon the unwary Vir Pal deceased and the witnesses but this appears to us as wholly improbable. It is significant to note that the complainant party for the first time at the trial introduced the names of Smt. Shanti and Smt. Omkari as the assailants of the complainant party and mentioned the names of the person who caused some injuries to the accused party in self defence with the specified weapons. The fact that the accused party had suffered as many as 26 sharp and blunt weapon injuries in the incident, negatives the prosecution stance that at the relevant time it was the accused party who after arming themselves opened the attack on the complainant party but the number and nature of the injuries sustained by the accused party leads to the conclusion that the complainant party had attacked the accused party first in a planned and aggressive manner and caused blunt and sharp weapon injuries on different parts of their bodies.

It follows, therefore, that the injuries on the persons of the four appellants and their companions were caused first by the complainant party. If that be so and it appears to be the only result on the probabilities of the case, it is clear that an unerring finger is pointed the at complainant party being the aggressor who had caused as many as 26 injuries to the accused party.

From the above we are of the opinion that the complainant party was an aggressor party party and the appellants acted in the right of self defence and hence committed no offence. Their convictions sentences on the charges of murder and ancillary offence, therefore, cannot, be sustained and are hereby set aside. The appeal is allowed.