Bhag Singh vs State of H.P.

A.L. Vaidya, J.—The present Appellant, Bhag Singh alongwith his brother, Joginder Singh and son Ramesh Singh were prosecuted under Sections 148, 447, 307, 325, 323 and 149 I.P.C.. Joginder Singh and Ramesh Singh were charged under Sections 323 and 149 I.P.C., while Bhag Singh was charged for the remaining offences referred to above. The learned Sessions Judge, Una who tried the case, convicted only the present Appellant u/s 326 I.P.C. and sentenced him to undergo rigorous imprisonment for three years and a fine of Rs. 2,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. He was also directed to pay compensation of Rs. 5,000/- to the injured, Surinder Singh.

The facts which gave rise to the present proceedings were that on 21.12.1988 at about 10 at night, while the complainant party was sleeping in the house, accused Bhag Singh was heard hurling abuses and challenging the complainant party and desiring them to come out of the house. Smt. Trishla Devi, sister-in-law of the informant Rajinder Singh came out of the room and asked accused Bhag Singh the reasons for hurling abuses but the accused instead of replying started abusing in a louder voice and in the meantime Surinder Singh and Usha Rani, brother and sister of informant Rajinder Singh also came out of the room. Accused Bhag Singh was armed with an axe and accused Joginder Singh and Ramesh who are the sons of Bhag Singh alongwith their brothers Rakesh and Tarsem also reached at the spot and all of them were armed with the lathies. All the aforesaid persons reached at the place of occurrence by forming an unlawful assembly and there was an exchange of words between the two parties and accused Bhag Singh inflicted axe blow on the head of Surinder Singh resulting in bleeding and Surinder Singh fell un-conscious. When Rajinder Singh informant tried to intervene and to rescue Surinder Singh, accused Bhag Singh also inflicted axe blows on his head, arm and wrist while the remaining accused had inflicted Lathi blows on the person of Surinder Singh, Rajinder Singh and Usha Rani. On hearing the noise, S/Shri Jagtar Singh, Ram Lubhaya reached at the spot and rescued the complainant party from the accused and thereafter removed the injured to the hospital at Haroli, but as the condition of Surinder Singh worsened and as such he was removed in an ambulance to the District Hospital at Una, whereas Rajinder Singh alongwith his sister Usha Rani went to the Police Post, Haroli for reporting the matter and the report was lodged with the Police. The three injured were medically examined and a case for offences under Sections 147, 149, 451 and 323 I.P.C. was registered at the first instance. During the investigation of the case, the weapons of offence consisting of Dandas and the axe and the clothes of injured Surinder Singh were taken into possession by the police. During investigation a case for offences under Sections 307, 325 and 148 I.P.C. was found to have been committed by the accused and as such challan for these offence was presented in the Court.

After examining the prosecution witnesses, statements of all the accused were recorded who denied the alleged occurrence, but stated that on the day of occurrence, the family members of Ramesh Singh had beaten the children of Bhag Singh and thereafter the ladies of the accused persons complained to the ladies of Ramesh Singh''s family in this regard and the ladies of both the parties exchanged hot words. It was further stated by the accused that the iadies from the complainant party gave a pre vocation/instigation to their male members who during night time armed with lathies and Draties came to their house and attacked them. He further added that it was a pitch dark at that time. In order to save themselves, they continued to running here and there and in that darkness it was not known as to whose weapon was hitting whom. In the meantime, many persons collected there, who intervened. The accused persons also received injuries and went to the Police Post, Haroli and they were arrested. It was also stated that at the instance of the complainant party, the police changed the place of occurrence also and in this behalf the accused made representation to the higher authorities by making written applications.

The aforesaid conviction and sentence u/s 326 I.P.C. have been assailed in the present appeal on various grounds.

I have heard the learned Counsel for the parties and have also minutely gone through the record of the case.

As per the case disclosed hereinabove, inspite of the fact that it has been the case of the prosecution that not only Bhag singh, but his sons and brothers formed an unlawful assembly and in furtherance of their common object, inflicted grivous injuries as well minor injuries on the persons of the members of the complainant party. The trial Judge came to the conclusion on the basis of the evidence examined during the trial that no guilt could be said to have been established by the prosecution beyond shadow of doubt for the injuries on the person of Rajinder Singh and Usha Rani. It has also been observed that in the absence of categoric and definite statement on the part of the prosecution witnesses, it did not stand proved which injury on the person of Rajinder Singh and Usha Rani resulted on account of blows of which accused. The learned Sessions Judge further observed that the prosecution has failed to establish the guilt against the accused. Excepting Bhag Singh, the remaining accused were acquitted after analysing the entire evidence and coming to the inferences referred to above.

Conviction of Bhag Singh has been on the following circumstances:

All the eye-witnesses have been unanimous in connecting Bhag Singh with the injury caused on the head of Surinder Singh with an axe(Ext.P. 5), which was a grievous injury.

The evidence examined on record which included prosecution as well as defence evidence, the defence taken by the accused was not found even to be a probable one.

Medical evidence corroborated the version given by the eye-witnesses.

The injuries sustained on the person of the accused stood explained and had not been connected with the occurrence.

It is really strange to note that some set of witnesses who have deposed with respect to other accused except Bhag Singh have not been relied upon and believed, but on the other hand, the same set of witnesses has been believed in connecting the accused Bhag Singh with inflicting injury on the person of Surinder Singh with axe (Ext.P. 5). There is no doubt that such a distinction can definitely be inferred by the trial Judge, but the circumstances established should lead for drawing such inferences. Here in the present case, the evidence if scrutinised in a legal manner does not support the inferences derived at by the Trial Judge which have been made the base for the conviction of Bhag Singh, accused.

So far as Bhag Singh accused is concerned, P.W. 1, Rajinder Singh, complainant, P.W. 4, Surinder Singh, injured, P.W. 5, Usha Rani and P.W. 6 Smt. Trishla Devi, who were examined as eye-witnesses have deposed on oath that Bhag Singh gave axe blows on the head of Surinder Singh. They have also stated that the occurrence took place at ten at night. The occurrence took place on 21.12.1988. One can very well imagine that in December, more so on 21st of December, the nights are larger than the day and 23rd December, happens to be the shortest day of the year. This has only been referred that at 10, it cannot be said to be the early hours of night. The cross-examinations conducted on these witnesses have to be borne in mind, while appreciating these witnesses, who were the close relatives with one another and hail from the complainant party.

P.W. 1, Shri Rajinder Singh stated that he had heard the portion ''A'' to ''A'' of Mark ''A'' According to him, it was wrong. This witness stated that he told the police that when he came out of the house, Bhag Singh was armed with an axe and the remaining accused with Lathies. This witness was confronted with Mark ''A'', wherein it was recorded differently. He also added that all the accused were beating Surinder Singh with lathies, but he could not state how many lathies were given by all or each of the accused on the person of Surinder Singh. The witness also stated that he cannot give the number of axe blows given on the person of Surinder Singh. He further added that when he came out, Surinder Singh was being beaten by giving the blows of lathies, but he could not tell who was giving the lathi blows on account of darkness. It is really strange to note that this witness could see Bhag Singh giving the axe blow in that dark night, but had shown his inability to state as to who was giving the lathi blows that too on account of darkness. He denied the suggestion that out of the accused party, Bhag Singh, Joginder Singh and Rakesh suffered injuries. He also stated that when he came out of the room, he did not take any weapon with him for his safety. He also stated that it was correct that Additional Superintendent of Police had come on the spot on the complaint of Bhag Singh for investigation. But he did not know what was the complaint of Bhag Singh. He further stated that he did not know that one of the allegation of Bhag Singh was that the police had changed the place of occurrence and that in fact it was the house of Bhag Singh, where the occurrence took place. He has admitted that both the parties were in civil litigation. He also added that they did not have any exchange of words with the accused party before the fight. This witness was confronted with portion ''B'' to ''B'' in Ext.PT, wherein it had been so recorded. He stated that he did not know the cause of the quarrel. However, he denied the suggestion that in the morning of the day of occurrence his three brothers had given beating to the son of accused Bhag Singh and then the ladies of the accused party complained to their ladies and then they had gone to the house of accused party during night to have a quarrel and in that quarrel, he caused injuries alongwith his brothers to accused Bhag Singh, Joginder Singh and Rakesh. In a way, whatever was the defence that was not accepted by this witness to be a correct version. He stated that it was true that the edge of the axe, Ext.P. 5 was broken at five points and the lathies Exts.P. 1 to P 4 did not bear the special mark.

From the statement of the aforesaid witness, one thing is clear that it was dark night when the occurrence took place, and in that dark night, the likelihood of identifying which person gave which blow to whom could not be ascertained. This witness admitted some litigation between the parties. He denied the defence story. In a way he accepted that before the fight, some exchange of hot words took place between the parties and that the axe, Ext.P. 5 which was the weapon of offence was broken at five points.

P.W. 2 is one Som Nath. He reached the spot after the occurrence and stated that Surinder Singh was having injuries in his head of the axe and that fact was told to him by his brother Rajinder P.W. 3, Mohinder Singh also reached the spot at about 11.00 P.M. after hearing the noise and he saw Surinder Singh, Rajinder Singh and Usha Rani in injured condition, who were removed to the hospital.

P.W. 4 is Surinder Singh, who was alleged to have been given the axe blow by Bhag Singh. During cross-examination, this witness stated that accused Bhag Singh was in a drunken condition and was hurling abuses. The witness was confronted with his statement Mark DC, wherein it had not been so recorded. He further added that he did not state to the police that Trishla Devi was told by Bhag Singh that they had given beatings to his son. He was again confronted with his statement Mark DC wherein it is so recorded. He stated that it was correct that before the occurrence, they had hot discuss''ibn with Bhag Singh and others. But he did not know what type of hot discussion was. He further added that he did not know the real cause of quarrel. However, he stated that accused Bhag Singh was saying that his son has been beaten by his brother, but he was not aware of that.

P.W. 5, Miss Usha Rani during cross-examination stated that she did not remember whether she told the police that Trishla told accused Bhag Singh with folded hands that he should go away and come in the morning. The witness was confronted with his statement Mark DD, wherein it was not so recorded. She stated that she told the police of the cause of quarrel. However, she added that she did not remember regarding the quarrel between the children. According to her, she told the police that Bhag Singh gave an axe blow to Rajinder Singh. The witness was confronted with the Mark DD, wherein it was recorded regarding the axe blow on the arm and wrist of Rajinder Singh. She also stated that the occurrence took place at night in the dark and she could not count the blows of lathies. She has been specific by saying that she could not count the number of blows due to darkness.

Similarly, Smt. Trishla Devi, P.W. 6 during cross-examination stated that it was true that during day time on the same day, the children of Bhag Singh and their children quarrelled. According to her, she did not tell the police regarding the axe blow having been given to Rajinder Singh. She was very specific in saying that the quarrel continued for about one hour at night. She also stated that the exchange of Lathies continued for one hour.

P.W. 9, Jagtar Singh reached the spot after the occurrence and stated that he heard the noise coming from the house of Bhag Singh and Surinder Singh and when he reached the spot, he found Surinder Singh in an injured condition. He stated that when he reached the spot, Bhag Singh etc. were in their house and he did not ask the cause of quarrel. This witness was allowed to be cross-examined. He further added that he after the noise found the complainant party present at the spot. According to him, it was true that accused Bhag Singh inflicted one axe blow on the head of Surinder Singh in his presence. However, Rajinder Singh and Usha Rani were given lathi blows by the accused. He further said that he did not know the cause of the quarrel.

P.W. 10, Janak Singh was associated during the investigation of the case.

P.W. 7, Dr. Mrs. S. Sharma, who examined Surinder Singh injured and gave opinion which was Ext.PD on record. According to her, injury No. l was grievous one which has been described as under:

Semi-circular incised wound left posterior side of skull. Size of the wound was 8 cms x 1.5cms. and brain matter deep with projection of fractured skull bone in the wound. Fresh bleeding from the wound was present.

According to the doctor, this injury could also be caused with axe, Ext.P. 5. The doctor also opined that this injury was dangerous to life. However, according to her, the nature of the injury corresponds with the weapon used. According to her, injury No. l was a semi circular and incised wound. The edge of the axe, Ext.P. 5 was not curved like a sickle. The doctor has further stated that.... Ext.P. 5 was having five breaks. According to the doctor, there is no mention of breaks of the edge of the axe and she further opined that these points on the axe would be reflected in the injury if it is superficial and less force applied. She also stated that the cutting of the bone and the upper layer of the flesh will be during one blow at a time with force. On account of the cuts in the edge of the weapon the tissues of the flesh will be inverted whereas the sharp part will be clean cut. There are no inverted portions of the flesh in the instant injury. It may be that the weapon with complete sharp edges was used rather than Ext.P. 5. Injury No. 2 can be caused by a fall.

P.W. 8 is Dr. Satinder Chauhan, who examined Rajinder Singh and observed the following injuries on his person:

A lacerated wound 2 cm x 1 cm x 0.2 cm on the mid portion of fore-head just below hair line. Margins irregular.

A diffuse swelling in the regional of right elbow 8 cm x 6 cm; radish in colour; movements at the elbow join restricted.

A lacerated wound 3 cm x 1 cm x 0.2 cm on the postero medical aspect of the left fore-arum in the lower 1/3 region; margins irregular.

The doctor issued the medico-legal certificate, Ext.PG. He also examined Kumari Usha Rani on whose person the following injuries were observed and issued the medico-legal certificate, Ext.PJ in this regard:

A lacerated wound on the dorum of right little finger middle phalyngeal region 1 cm x 1/2 cm x 0.1 cm. Margins were irregular; radish.

A lacerated wound 2 cm x 1/2 cm x 0.2 cm on the scalp in the left side of occipital region; margins irregular.

The doctor deposed that .all these injuries could be caused by blunt weapon within 24 hours. All the lathies Ext.P. 1 to P. 4 and the reverse of the axe, Ext.P. 5 i.e. blunt side can cause these injuries on the person of Rajinder Singh.

P.W. 11 is Dr. Suresh Kumar, who examined Rakesh Kumar, Joginder Singh and Bhag Singh. These persons were examined on 23.12.1988 and the following injuries were found on their person.

Rakesh Kumar:

Marks of scratches on front of chest external area measuring 4 cms in length 2 mm in breadth. Other related scars 3x2 cm in measurement. All were superficial.

Joginder Singh:

Slight abrasion on left scapular region. Tender on touch with inflamation around the area measuring approximately 8 x 10 cms. Movement on left side restricted.

A wound centre scalp 1 x 1 cm not bleeding, not tender, not inflairened. Old scab has been found formed.

Bhag Singh:

Wound on scalp in occipital region inclined to right side measuring 3x1cms. in area. Not bleeding. Slightly tender.

Slight bruise on right arm medially in fore-arm area measuring about 4x5 cms. Slightly tender.

The doctor proved the medico-legal certificates pertaining to these accused persons. The doctor deposed that all these injuries could be caused on the person Rakesh Kumar, Bhag Singh and Joginder Singh by blunt weapon in a scuffle. The matter was referred for X-Ray also, but X-Ray of laterial view was not possible and as such wa6 not taken. The doctor stated that these injuries could be caused within 48 hours.

The other witnesses examined were the police officials, who have investigated the case or were associated during the investigation.

The defence examined on behalf of the accused has been D.W. 1, one Shri Jagdish Chand, Head Constable, S.P. Office, Una, who stated that he had brought the application mark ''D'' which has been exhibited as such. According to this witness, the original application was sent to the S.H.O. for inquiry and legal action on 20.1.1989. He also stated that another application addressed to'' the Hon''ble Chief Minister of Himachal Pradesh, Director General of Police, Himachal Pradesh and Deputy Inspector General of Police, Dharamshala Range was sent by Bhag Singh on 9.2.1989. The report of inquiry was Ext.P.C.C. The application was with respect to a complaint made that the place of occurrence has been changed and on the basis of this inquiry, it was not found to have been changed.

D.W. 2 is Shri Phulbhag Singh, who was associated by the police in the investigation of the case. He stated that he had seen one axe and lathi and packet of blood stained earth on the cot. No recovery was made in his presence.

The evidence examined as referred to above during the trial if appreciated in a legal manner lead to the sole inference that it was not a simple case of inflicting axe injury by Bhag Singh, but the cross-examination conducted on the prosecution witnesses and as discussed above, reveal some other facts which definitely if taken note of will have a direct bearing on the prosecution case. The following facts even from the prosecution evidence can safely be inferred:

Parties had inimical relations and were having civil litigation.

On the date of occurrence, the children of the complainant party had given beatings to the children of the accused party.

Before the occurrence, there was some verbal dual between the members of both the parties.

The occurrence took place in a dark night in an open compound. There was no evidence that there was some light, electric or otherwise.

Likelihood of scuffle between the two parties could not be ruled out and exchange of lathi blows in that scuffle could not be ruled out.

In such a case where the fight was preceded by exchange of hot words, which party was the aggressor could not be ascertained specifically.

In so far as the inflicting of lathi blows was concerned, the evidence has not been relied upon on account of darkness at the spot as to which person gave lathi blows to which person. Similarly, it could not be ascertained in that darkness, who gave axe blow to whom or atleast this circumstance that Bhag Singh under these conditions was seen by the witnesses to have given axe blows to the injured persons, cannot be said legally to have been proved beyond all reasonable doubt.

Injuries on the person of the accused indicated that some fight between the two parties took place.

Axe, Ext.P. 5, according to the doctor was having five irregular cuts and the sharp edge of the axe was not uniform. Those irregular cuts of the axe have not been found on the injury, though the doctor has tried to explain the same. The doctor has been specific in deposing that the weapon with complete sharp edges was used rather than Ext.P. 5. According to the doctor, a sharp curved sickle could also cause such wound.

The possibility of the defence version that the place of occurrence had been changed could not be ruled out in the presence of the complaint made by Bhag Singh in this behalf, to the higher authorities, however, the higher authorities did not find that complaint to be a correct one.

The aforesaid circumstances if taken note of will not at all support the inferences derived by the trial Judge which have been made the sole basis for convicting Bhag Singh. Needless to say, in a criminal case the prosecution has to stand on its own legs and has to prove the guilt against the accused beyond all reasonable doubt by leading convincing, reliable and unimpeachable evidence. Any reasonable doubt appearing in the prosecution evidence has to be weighed in favour of the accused person. The defence is not to be appreciated in the manner and with the same standard as the prosecution version is required to be appreciated under the law. The probability of the defence if made from the prosecution evidence coupled with the defence evidence that has to be considered in the background of the entire case.

In this case, as discussed in detail above, the circumstances derived from the prosecution evidence clearly make the present case to be of doubtful nature even against Bhag Singh accused. There is no doubt that this occurrence has resulted in causing grievous injury on the head of one of the members of the complainant party, but that will not be legally competent to influence this Court to hold Bhag Singh, accused legally responsible for that. To secure conviction of even Bhag Singh, the offence has to be legally proved u/s 326 I.P.C. against him beyond all reasonable doubt, which onus in the present case, the prosecution has not discharged successfully.

In view of the foregoing reasons, the conviction and sentence u/s 326 I.P.C. imparted against Bhag Singh Appellant are set aside and after being given the benefit of doubt, the Appellant is acquitted u/s 326 I.P.C. also. The appeal as such is accepted. Bail bonds furnished by Bhag Singh shall stand discharged. The fine or compensation, if paid by Bhag Singh, be returned to him forthwith.