AI Structured Summary
Not yet generated for this judgment
Judgment
Lokeshwar Singh Panta, J.—Five accused namely Kulfi Ram alias Ram Saran Dass (A-1), Vipan Kumar (A-2), Smt. Parkasho Devi (A-3), Raj Pal (A-4) and Jasbir Singh (A-5) were tried for offences u/s 302 read with Sections 147, 148 and 149 of the Indian Penal Code by Sessions Judge, Una. The Sessions Judge acquitted Kulfi Ram alias Ram Saran Dass and convicted A-2, A-4 and A-5 for offence u/s 325, I.P.C. for causing grievous hurt to deceased Raj Kumar and sentenced to pay a fine of Rs. 10,000 each and in default of payment of fine to undergo simple imprisonment for two years each. Out of this amount of fine, each accused is directed to pay Rs. 8,000 as compensation to the wife and children of the deceased and in their absence to the mother. A-2 and A-3 were convicted for the offence u/s 323, I.P.C. for causing simple injuries to PW Smt. Bhagwani Devi and sentenced to pay fine of Rs. 1,000 each and in default of payment of fine to suffer simple imprisonment for three months each. The entire amount of fine was ordered to be paid as compensation to complainant Smt. Bhagwani Devi. A-5 was also convicted for offence u/s 323, I.P.C. for causing simple injury on the person of PW Malkiat Singh and sentenced to pay a fine of Rs. 1,000 and in default of payment of fine to suffer simple imprisonment for three months. The amount of fine is ordered to be paid as compensation to injured Malkiat Singh.
The accused persons have preferred Criminal Appeal No. 264 of 1990 against their conviction and sentences whereas the State of Himachal Pradesh preferred Criminal Appeal No. 441 of 1990 against the acquittal of the accused persons under Sections 143/148/302/323 read with Section 149, I.P.C. We proceed to decide both the appeals by this common judgment, as they arise out of the same incident and single judgment of the trial Court.
The facts that emerge from the prosecution case may briefly be stated:
A-1 was having some land dispute with the complainant party. He was the real ''Devar'' (husband''s brother) of complainant Smt. Bhagwani Devi and their ''Abadi'' is joint. A-1 constructed a house over some part of the Abadi in village Bhanjal Tehsil Amb and the shuttering of the lintal was removed on 15-9-1988. In front of the newly constructed house of A-1, there is a passage of the complainant party and adjoining to the passage is the land of Raj Kumar son of Complainant Bhagwani Devi. A-1 was planning to construct a varandah in that passage, Raj Kumar fenced that portion with the barbed wire in order to desist A-1 from doing so. In the morning on the day of occurrence i.e. 16-9-1988 the barbed wire allegedly uprooted by A-1 with the help of his family members and in the evening when Raj Kumar and Malkiat Singh two sons of complainant came back in the house they were informed by their mother Smt. Bhagwani about uprooting of barbed wire. Raj Kumar questioned A-1 at about 7.30 p.m. in this regard while Malkiat Singh was draining out the water from the land with ''Kassi'' (spade). A-1 denied having uprooted the wire and started exchanging the words and in the meantime his wife (A-3), son (A-2) and two more relatives namely A-4 and A-5 came there armed with ''Dandas''. The brother-in-law of A-4 snatched the ''Kassi'' from Malkiat Singh and hit Raj Kumar, Smt. Bhagwani Devi and Malkiat Singh with it and the remaining accused also gave beatings to all the three with ''Dandas'' as a result of which they sustained blood injuries. They made a noise; on hearing Smt. Sudesh Kumari reached at the spot and at her sight the accused persons ran away from the scene of occurrence. Smt. Bhagwani Devi informed Member Panchayat Sita Ram Up Pradhan Jagdish Ram and Pradhan Kashmir Singh who removed the injured in the tractor to Primary Health Centre at Amlehar where they were medically examined by Doctor Y.P. Sharma, (PW 8) Medical Officer who also informed the Police on telephone at 10.30 p.m. He referred injured Raj Kumar to District Hospital Una as his condition was critical Lateron Raj Kumar was referred to Post Graduate Institute at Chandigarh where he ultimately succumbed to the injuries on 21-9-1988 at about 10.35 p.m.
Head Constable Krishan Kumar proceeded to the spot and recorded the statement of Smt. Bhagwani Devi u/s 154, Code of Crimimnal Procedure on the basis of which formal F.I.R. (Ex. PGG) was registered at Police Station, Amb on 17-9-1988 at 1 a.m. At the first instance the case under Sections 147, 148, 149 and 323, I.P.C. was registered against the accused persons but lateron it was converted into offtnee u/s 302 read with Sections 147, 148, 149, I.P.C. During investigation of the case bloodstained clothes of Smt. Bhagwani Devi and Malkiat Singh were taken into possession. Weapons of offence were also recovered and taken into possession. The post-mortem of Raj Kumar was conducted by Doctor J.R. Chauhan, Medical Officer, Chandigarh Hospital, Sector 16 Chandigarh.
On the completion of the investigation charge-sheet was laid before the Sub-Divisional Judicial Magistrate, Amb who committed the case to the Sessions Court for trial.
All the accused persons were charged for offences under Sections 143, 148 and 302, I.P.C. read with Sections 149 and 323, I.P.C. read with Section 149, I.P.C. They pleaded not guilty to the charges and claimed to be tried.
The prosecution in order to prove its case against the accused persons examined as many as 19 witnesses. The statements of accused persons were recorded u/s 313, Code of Crimimnal Procedure in which they denied the incriminating circumstances appearing against them and stated that they have been falsely implicated and are innocent. However, accused Raj Pal further stated that his name was not found mentioned in the F.I.R. and was substituted subsequently during the investigation. Accused Jasbir Singh has stated that he has been substituted for some other accused during the investigation. He was relieved to join the army training from Jallandhar and went to Ludhiana to join the Army Unit on 12-9-1988 but could not join on the said date as his relieving chit was not received by the Army authorities. He attended the Army Commission and was on the strength of the Army from the morning of 15-9-1988 to 13-10-1988 and was not relieved from the Unit during that period. In this defence he examined two witnesses namely Surjit Singh (DW 1) Hawaldar and P.K. Tiagi (DW 2) Assistant Superintendent Planning Cell besides tendering documents (Exts. DP, DQ and DR).
The evidence was produced before the trial Court and after hearing the parties, the trial Court acquitted A-1 of the alleged charges. The other accused persons were convicted and punished for the offences as stated hereinabove.
Two appeal viz. Criminal Appeal No. 264 of 1990, Vipin Kumar and Ors. v. State of Himachal Pradeshand and Criminal Appeal No. 441 of 1990, State of Himachal Pradesh v. Kulfi Ram alias Ram Saran Dass and Ors. have been filed against this decision. Accused challenged their conviction and sentences and the State appealing against the acquittal of the accused persons for commission of the offences under Sections 143, 302 read with 149 of the Indian Penal Code and Section 323 read with section 149 of the Indian Penal Code. During the pendency of the appeal of the State, Kulfi Ram alias Ram Saran Dass has died. Hence appeal against him stands abated.
The sole question for consideration and determination is whether the prosecution has proved beyond reasonable doubt that the accused committed the offence charged with.
Learned Counsel appearing for both sides vehemently contended with their respective contentions-Shri H.S. Sandhu, learned Counsel for the acquittal of the accused and Mr. M.L. Chauhan, learned Assistant Advocate General, for the conviction of the accused-both placing reliance on the evidence available on the case file which was extensively read during the course of their submissions. We proceed to examine the case on the basis of the available evidence.
Dr. Shri Y.P. Sharma (PW 8) at the relevant time was Medical Officer, Primary Health Centre Amlehar He examined three injured namely. Bhagwani Devi, Malkiat Singh and Raj Kumar on 16-9-1988. The following injuries were found on their persons by the Doctor:
Injuries found on the person of Bhagwani Devi
Lacerated injury over the temporal region left side 1" long scalp deep with swelling and tenderness.
Swelling and tenderness over the lower part of anterior part of the chest (right side of the chest)
Swelling and tenderness over the left shoulder joint.
All the injuries were described to be simple in nature and appear to have been caused with blunt weapon within duration of 6 hours He issued Medico Legal Certificate (Ext. PR):
Injuries found on the person of Malkiat Singh
Lacerated wound over the occiput 1 cm. long fresh bleeding present.
Swelling and tenderness over the right supra-eyebrow region with blue eye.
Swelling and tenderness with crackling sound over the right spine of scapula.
Swelling and tenderness over the left upper arm.
Contusion mark over the anterior part of the chest on left side.
Elongated contusion mark over the back of the trunk 1-1/2 cm. wide with 1-1/2 feet long.
According to the opinion of the Doctor described in Medico Legal Certificate, (Ext. PR/1) all the injuries were simple in nature and were caused with some blunt weapon with a duration of six hours.
Injuries found on the person of Raj Kumar
1.5 cm. long lacerated wound at the vertex of skull.
2.5 cm x 1 cm. sized lacerated wound at the frontal portion of the skull.
2.5 x 1 cm sized lacerated wound at the parietal portion of the skull (left side)
1 cm. long incised wound at the anterior lateral aspect of left leg in upper 1/3rd size 1x1/2x1/2 cm.
Swelling, tenderness with crackling sound at the left ulnar bone.
The injured was found unconscious, irritable, BP was 90 systole, pulse is 110 p.m. feeble respiration is 20 p.m. regular. Pupils are unequal and sluggish to react. Right pupil is dialated and almost fixed. Left pupil is constructed. Signs of menmgeal irritation present.
According to his Medico Legal Certificate (Ext. PS), injury No. 4 appears to have been caused with some sharp edged weapon and other injuries were caused with some blunt weapon. The probable duration of the injuries was within six hours. In his statement the Doctor has stated that injury No. 4 on the person of Raj Kumar could have been caused by a ''Kassi'' like Ext. P-4. Injuries Nos. 1, 2, 3 and 5 on the person of Raj Kumar and also injuries on the persons of Smt. Bhagwani Devi and Malkiat Singh according to his evidence could have been caused with the blows of ''Dandas'' (Ext. P-6, P-7 and P-8).
The doctor also states that Head Constable Krishan Kumar (PW 14) gave au application (Ext. PT) to ascertain if Raj Kumar was fit to make the statement Similar application (Ext. PU) was given in respect of injured Malkiat Singh He certified that Malkiat Singh was fit to make the statement.
Doctor S.K. Nanda (PW 6) was Medical Officer, District Hospital, Una. Head Constable Krishan Kumar made another application (Ext. PN) on 17-9-198 to take his opinion whether injured Raj Kumar who was admitted in District Hospital, Una after being referred from Primary Health Centre, Amlehar was fit to make the statement or not. The Doctor has certified that the injured was not fit to make any statement He states that on 18-9-1988 the injured was referred to PGI. On another application dated 17-9-1988 (Ext PN) made by Investigating Officer to ascertain the extent of gravity of injuries suffered by Raj Kumar, he certified that the injuries had made the patient unconscious and injuries Nos. 1, 2 and 3 had resulted in extra dural haemorrhage and such a haemorrhage was dangerous to life.
Doctor J.R. Chauhan (PW-5), Medical Officer in Chandigarh Hospital, Sector 16 Chandigarh conducted post mortem on the body of Raj Kumar on 21-9-1988. He found the following injuries on the dead- body:
A lacerated wound 4 x 1 cm. bone deep in mid parietal region.
A lacerated wound 5x1 cm skin deep in the mid frontal parietal region.
A stiched wound 27 cm. in right tempro parietal and frontal region.
Trachestomy wound was present.
A scabed wound 2 cm. front of left shin to upper end.
Fracture left ulna.
According to the opinion of the Doctor, the death resulted from head injury which was sufficient in the ordinary course of nature to cause the death. The injuries were ante mortem. According to his statement injury Nos. 1 and 2 above might have been caused with the blows of the sharp side of spade (Ext. P-4). In his cross-examination he has admitted that septicaemia developed after the receipt of the head injury and the death was due to said septicaemia He also admits that lacerated wounds are caused by blunt weapon.
Shri H.S. Sandhu learned Senior Advocate appearing on behalf of the accused has vehemently contended that the names of accused Raj Pal and Jasbir Singh were not mentioned in F.I.R (Ext. PGG) by eye witnesses namely Smt. Bhagwani Devi (PW 1). In fact she named one Bhajan Pal and the brother in law (Sala of Bhajan Pal) who according to her were present at the time of occurrence and took pan in giving spade and ''Danda'' blows to the uncased and other injured witnesses He has submitted that their names had been mentioned for the first time in the court by P Ws Bhagwani Devi and Malkiat Singh We have perused the copy of F.I.R. (Ext PGG) in which name of Bhajan Pal has been stated in place of Rajpal Admittedly, complainant Bhagwani Devi has not mentioned the name of accused Jasbir Singh. Smt. Bihagwani Devi appeared as PW 1. She has stated that in front of the portion of their joint Abadi which is in her occupation, there is a passage and across the passage there is Abadi of her deceased son Raj Kumar. He had fenced his plot across the passage by means of barbed wire On 16-9-1988 around 9 a.m. when her son Raj Kumar and PW Malkiat Singh were not in the village as they had gone out on account of their service, accused Kulfi Ram, Raj Pal, Vipan, Parkasho and Jasbir uprooted the fencing of barbed wire, She being the sole lady in the house at that time did not think it proper to prevent them from uprooting the said fence. In the evening when her sons returned from their duty she informed them about uprooting of the fence who went to the above said plot and found Kulfi Ram present at the passage of its house. Her two sons asked him as to why the fence had been uprooted. Kulfi Ram replied that the fence had not been uprooted by him When her son and Kulfi Ram were talking to each other, she withdrew and in the meanwhile, Kulfi Ram, Vipan, Parkasho and Raj Pal started hurling abuses against them Accused Jasbir Singh came out with ''Danda'' and hit her son PW Malkiat Singh on the back side of his head Then he snatched the ''Kassi'' from the hands of PW Malkiat Singh with which he was making drains to dewater the field and with that ''Kassi'' he hit Raj Kumar on the head with sharp side of the ''Kassi'' As a result of that blow Raj Kumar fell on the ground, with a wound on his head and became unconscious. Accused Raj Pal who was armed with ''Danda'' hit Raj Kumar on the head. One more blow of ''Danda'' on the ribs of Raj Kumar was given by accused Vipan Accused Prakasho Devi inflicted ''Danda'' blow on one side of her head as a result of which she suffered a bleeding injury. Accused Vipan also hit her on the left shoulder with ''Danda'' They cried for help and on hearing their cries PW Sudesh Kumari came there The accused persons then made their escape from the scene of occurrence. While fleeing the accused carried with them ''Dandas'' but the spades two in number remained on the spot Then she went to the Pradhan of the Panchayat in the company of Sita Ram Panch and her son PW Malkiat Singh narrated the entire incident to him. Pradhan took them to the Amlehar Primary Health Centre in a tractortrolly. Police came there and she made a statement (Ext. PA) and thumb marked it. Her clothes had got stained with blood and were produced to the Police. During the trial she identified two spades (Exts. P-4 and P-5) and three ''Dandas'' (Exts. P-6 to P-8) which were used by the accused at the time of the incident. She stated that ''Kassi'' (Ext. P4) belonged to her. She could not tell whether Kassi (Ext. P5) belonged to her or the accused persons However, in her cross-examination she has categorically admitted that she knew accused Jasbir Singh even prior to the incident. He had been visiting their village for the last two years prior to the incident and since then she had been knowing him. Similarly she admits that accused Raj Pal and his brother Bhajan Pal were also known to her even before the incident. However, she has explained that she was not in her senses because of bleeding injury on her head when she made the statement (Ext. PA) and therefore, she could not say if she had got recorded the name of Bhajan Pal in place of Raj Pal She further explains that in place of Raj Pal in her statement (Ext. PA) she had got recorded the name of Bhajan Pal and in place of ''Sala'' of Raj Pal she had made statement of ''Sala'' of Bhajan Pal She has stated that in her statement u/s 161, Code of Crimimnal Procedure she had got recorded that in place of Bhajan Lal it was Raj Pal who had assaulted them and that it was Raj Pal''s ''Sala'' who gave a ''Kassi'' blow.
It is true that in Ext. PA she mis described the name of accused Raj Pal to be Bhajan Pal, but in view of her statement that she knew Raj Pal accused prior to the date of occurrence, we accept the explanation given by her about mis-description of the name of Raj Pal. Further she has explained that on account of her sustaining head injuries her mental condition was not in perfect order and she was feeling disturbed and for that reason she had wrongly described the name of Bhajan Pal in place of Raj Pal. In view of these facts and circumstances such a wrong description of name is absolutely meaningless and without any consequence when she has recognized Raj Pal on the spot whom she knew earlier.
The learned Counsel for the accused relied upon Wilayat Khan and Others Vs. The State of U.P., ; Hari Nath and Another Vs. State of U.P., and Darshan Singh alias Bhasuri and Others Vs. State of Punjab, . We have gone through these decisions. Ratio of these decisions are not applicable in the facts and circumstances of the present case so far identity and participation of accused Raj Pal are concerned. Here it is a case of only mis-description of the name of the accused and not omission in mentioning his name in the earlier statement (Ext. PA) Injured Malkiat Singh (PW 2) corroborated the version of his mother PW Bhagwani Devi about the manner and place of incident. He has specifically stated that it was Raj Pal one of the accused persons who hit his brother Raj Kumar at the head with a ''Danda'' Similarly, he states that accused Vipan also inflicted ''Danda'' blow on one of the arm of Raj Kumar and accused Prakasho Devi hit his mother PW 1 with ''Danda'' on the head, besides accused Vipan gave one ''Danda'' blow to his mother on her chest. On hearing their cries, PW Sudesh Kumari reached on the spot and saw the occurrence. She carried him to his house. His brother Raj Kumar was also brought to their house by Sudesh Kumari and Bhagwani. Sudesh Kumari (PW 9) an independent witness reached on the spot after she heard PW Bhagwani crying that her son had died. On reaching at the spot she saw Raj Kumar and Malkiat Singh lying in an injured condition in the court-yard of Kulfi Ram accused and both of them were bleeding. She identified accused Raj Pal giving a ''Danda'' blow to Raj Kumar on his leg when he was lying She has specifically mentioned the name of accused Raj Pal in her cross-examination. This portion of the statement could not be shattered by the defence. Looking to the evidence of these witnesses, the identity of accused Raj Pal is also established by the independent witnesses on the place of occurrence.
The identity and participation of accused Jasbir Singh in the commission of the crime on the day of occurrence have not been established by the prosecution by leading satisfactory and cogent evidence. If we believe the version of complainant Bhagwani Devi that she knew accused Jasbir Singh prior to the occurrence, then it was not difficult for her having mentioned his name in the First Information Report and in her statement u/s 161, Code of Crimimnal Procedure this accused has only been identified by PWs 1, 2 and 9 by knowing him to be a ''Sala'' of one Bhajan Pal. In Wilayat Khan''s case (supra), the apex Court observed that where telegram about murder, given almost immediately after the murder was committed, does not mention the names of the assailants, the omission is a strong circumstance in favour of the accused. In Hari Nath''s case (supra), the Hon''ble Supreme Court while dealing a case in which one of the eye-witnesses could reasonably be expected to have known some of the accused as residents of villages in close vicinity and as such students of the same Institution did not mention their names in the F.I.R. observed that the omission to disclose their identity in the F.I.R. in such a situation would raise a reasonable doubt about the complicity in the crime. In Darshan Singh''s case it has been held by the apex Court that the fact that the names of some accused are not mentioned in the F.I.R. is a circumstance which the prosecution has to explain, though no rule of law stipulates that an accused whose name is not mentioned in an F.I.R. is entitled to acquittal In another case namely, V.C. Shukla and Others Vs. State (Delhi Administration), it has been held in para 23 of the judgment that identification of a person by witness for first time in Court without being tested by a prior test identification parade is valueless. Similarly, in Mohanlal Gangaram Gehani Vs. State of Maharashtra, the identification of the accused first time in Court by victim is valueless and cannot be relied upon without holding test identification parade Relying upon these decisions in the present case, it is clear that accused Jasbir Singh was not known to eye-witnesses PWs 1, 2 and 9. It was legal duty of the Investigating Officer to have conducted an identification parade to get the accused identified from the eye-witnesses The evidence of PW 1 to the effect that she knew accused Jasbir Singh prior to this incident is also not believable and acceptable If it was so, she could have mentioned his name in the First Information Report or in her first statement made to the Police u/s 161, Code of Criminal Procedure Non-mentioning of his name in her earlier statements cast serious doubt about the identity and participation of accused Jasbir Singh in the commission of the alleged crime. It has also not been established that accused Jasbir Singh is directly related to the accused party. Further no recovery of weapon of offence was effected at his instance or from his possession.
Ram Kumar Sharma (PW 10) Deputy Yard Master, Railway Station, Jallandhar has stated in his deposition that accused Jasbir Singh was on duty upto 11-9-1988 and was relieved in the afternoon to enable him to join the Military camp which was to start on 12-9-1988 and was to remain in progress upto 19-10-1988. He produced the copy of entries in the Attendance register (Ext. PB) showing the presente of the accused.
It has come in the evidence of Surjit Singh, Hawaldar Major (DW 1) 237 Engineering Regiment, Pathankot that accused Jasbir Singh reported for duty in the Railway Engineering Regiment Territorial Army Training Camp at Ludhiana on 15-9-1988 at 9.20 a.m. According to the attendance register (Ext. DJ), the accused remained present in the Camp from 15-9-1988 to 13-10-1988 and relevant entries to this effect is Ext. DJ/1 for the month of September and DJ/2 for the month of October 1988. He used to mark the attendance of the Camp members at 6 a.m. and thereafter Lt. Col Sulesh Jung used to verify the attendance of the persons undergoing army training. Besides, these documents, a Morning Report Book was maintained and in the Book the total number of persons present were mentioned. If any member was found absent at the time of the roll-call, mention was made in the book and there is a column in this book regarding the Annual Leave, Casual Leave etc. On 15-9-1988 one employee who was absent was from their strength and he was on temporary duty outside the camp. According to his version made on the basis of the record, accused Jasbir Singh never absented during the period of this training In the camp an account of each individual''s ration was kept In the month of September 1988 ration of accused Jasbir Singh was drawn for 16 days and his ration account was Ext. DL and entry was at Ext. DL/1 Similarly, for the month of October ration account Ext DL/2 and entry was Ext. DL/3. He also states that no person eau leave camp or the office of his own accord without permission and those trainees had to remain under Army discipline. If any trainee was absent oh a particular day his ration was not drawn and the Camp was supervised by the regular Army. In his cross-examination though he has admitted that there is over-writings on entry Ext. DJ/1 against the name of accused Jasbir Singh and also at serial number against his entry. The star-mark put against the name of Jasbir Singh on Ext. DJ/1 was for the reason that he joined the camp on 15-9-88 and not on 14-9-1988 as he was supposed to. This star mark has been put to point out his joining on the said date He has specifically denied the suggestion of the prosecution that accused Jasbir Singh was not present on duty in the Camp on 16-9-1988. He has also denied the suggestion that false record had been prepared which had been produced in the Court in order to help the accused.
We have seen the attendance register (Ex. DJ). The name of accused Jasbir Singh is shown at serial No. 90 and he had been marked present with effect from 15-9 1988 to 30-9-1988. It is pertinent to mention here that there are other entries of about 11 trainees who joined on the same day and some had joined on 16th September, 1988 The learned Sessions Judge has not relied upon this document on the ground that there are over-writing relating to the entry against the name of the accused Jasbir Singh and such over-writing was not initialled by any Officer. We find that there are over-writing in respect of trainees at serial Nos. 36, 37, 38 43, 71, 87 and many other places which are not signed by any officer. In Part II Order-JCOs/OR (P)/staff) for the year 1988 (Ext DN) maintained for pay and allowances of voluntary trainees (TA Personnel) we find entry Ext. DN/1 at page 71 and in the remarks column it is typed in these words:
embodied for ATC 1988-89 on 15th September, 1988 and these embodied on 13th October, 1988 AN", against the name of accused Jasbir Singh.
On consideration of the ocular account of evidence we are of the view that the identity of accused Jasbir Singh has not been established by the prosecution satisfactorily. The documentary evidence discussed above relied upon by the accused would go to show that on the day of occurrence i.e. 16-9-1988 accused Jasbir Singh was in his Unit at Ludhiana attending the course. His presence at the scene of occurrence and participation in the crime is doubtful and he is given benefit of doubt.
Shri H.S. Sandhu has next contended that the statements of eyewitnesses namely Bhagwani Devi, Malkiat Singh and Sudesh Kumari u/s 161, Code of Criminal Procedure were not promptly recorded and as such their evidence is rendered unreliable. In support of his submission he has relied upon Balakrushna Swain Vs. State of Orissa, and Ganesh Bhavan Patel and Another Vs. State of Maharashtra, . In fact according to the submissions of learned Advocate PWs 1 and 2 were interested witnesses and as such implicated the other accused persons falsely in the present case. In the present case it is fact that the statement of Smt. Bhagwani Devi was recorded on 22-9-1988 and that of Malkiat Singh on 19-9-1988. PW Malkiat Singh was discharged from the Hospital on 23-9-1988. PW Krishan Kumar, Investigating Officer states that an application (Ext. PU) dated 16-9-1988 was made to the Medical Officer, Primary Health Centre, Amlehar to find out whether PW Malkiat Singh was fit to make statement. The Doctor in his endorsement (Ext. PU/1) opined that he was fit to give statement and he was referred to opinion for X-ray. It has come in his evidence that PW Malkiat Singh stated that he was puzzled and his condition was not goor and so he did not make statement prior to 19-9-1988. He has specifically denied the suggestion that Malkiat Singh did not make any statement and he prepared the record of his statement to promote the theory propounded by the Police. He also states that PW Sudesh Kumari was not available in the village on 18-9-1988 when he went there in connection with spot inspection There is no doubt that the relations between complainant party and A-1, A-2 and A-3 were strained. It is also clear from the evidence of Smt Bhagwani Devi (PW 1) the mother of the deceased that in the morning hours of the day of occurrence the accused uprooted the fence of barbed wire which had been put by deceased Raj Kumar around his self owned plot It goes without saying that enmity is a double edged weapon which cuts both ways. The evidence of interested witnesses and those who are related to the deceased cannot be thrown out simply for that reason. But if after complying the rule of caution their evidence is found to be reliable and corroborated by independent evidence, there is no reason to discard their evidence but it has to be accepted as reliable.
PWs 1 and 2 are injured witnesses and their evidence cannot be discarded. It has come in their evidence that deceased Raj Kumar received injuries in the hands of accused Jasbir Singh with spade, Raj Pal and Vipan with ''Dandas''. PW Malkiat Singh also specifically stated that accused Vipan hit Raj Kumar on one of his arms. Similarly, PW Sudesh Kumari who is an independent witness deposed that when she reached at the spot she found Raj Kumar lying in an injured condition and he was bleeding and accused Raj Pal gave a ''Danda'' blow to Raj Kumar on his leg while he was lying. The ocular version of these witnesses is fully supported by medical evidence Injuries No. 1 to 3 have been described to be lacerated one in the skull and the 4th an incised wound in the anterior lateral aspect of the left leg and there was also swelling and tenderness. These injuries find further corroboration from the post-mortem report (Ext. PL) duly proved by Doctor J.L. Chopra Similarly, in the case of PW Bhagwani Devi as per oral evidence she was hit on her head with a ''Danda'' by accused Smt. Prakasho Devi and accused Vipan also hit her with a ''Danda''. These injuries were also proved by the Doctor. Injuries found on the person of PW Malkiat Singh were attributed to accused Jasbir Singh and to no other accused persons According to Doctor J.R. Chauhan, injuries Nos. 1 and 2 mentioned in the post-mortem report could be caused with the blows of the sharp side of the spade (Ext. P-4) but in his cross- examination, he has admitted that lacerated wounds are caused by blunt weapon only. Therefore, the evidence of injured witnesses is not reliable to this extent that the deceased was hit by sharp side of spade by accused Jasbir Singh In Gatiga Prasad v. State of U.P. 1987 SCC 345, it has been held that lacerated wound cannot be caused with sharp edged weapon It has come in the evidence of Kashmir Singh (PW 4) that two spades and three ''Dandas'' were produced by accused Smt. Prakasho Devi from her house to the Police and he identified those weapons of offence in the court as well In his cross examination nothing has been extracted to establish that the recoveries were not effected voluntarily from her house or these articles were planted by the complainant party or the Police against the accused persons.
In any case, the evidence of two injured witnesses, namely, Bhagwani Devi and Malkiat Singh whose presence at the time of occurrence cannot be disputed, who are the most natural witnesses and who have consistently given evidence attributed specific overt acts to the three accused namely Vipan Kumar, Prakasho Devi and Raj Pal deserves to be accepted. The ocular version of injured witnesses has been found corroborated by the medical evidence. In our view, the learned Sessions Judge'' has correctly appreciated the evidence of these witnesses and we prefer the trial Court''s appreciation of their evidence. However, there is no evidence on record to suggest that accused Kulfi Ram (since deceased) had inflicted an injury on any person of the complainant party nor learned Assistant Advocate General was in a position to point out with regard to the overt act attributed to him. In our view he has been rightly acquitted by the trial Court.
Keeping in view the specific story of the prosecution that the quarrel started abruptly at the place of occurrence and on the basis of the evidence discussed above, there is no satisfactory evidence to prove the formation of unlawful assembly with the common object of committing crimes alleged either to cause an injury on the person of deceased Raj Kumar or injured witnesses. The trial Court is right in acquitting the accused persons under Sections 143, 148 and 149 of the Indian Penal Code and they are only liable for the individual acts committed by them.
Shri H.S. Sandhu learned Counsel for the accused has next contended that the accused persons were charged with Section 302 read with Section 149 of the Indian Penal Code and Section 323 read with Section 149 of the Indian Penal Code and they could not be convicted of the substantive offence without specific charge being framed against them and as such their conviction for a charge not framed is illegal. He has placed reliance on Nanak Chand Vs. The State of Punjab, and Lakhan Mahto and Others Vs. State of Bihar, .
We have considered the ratio of these decisions of the apex Court. In Nanak Chand''s case (supra), Hon''ble. Judges of the Supreme Court observed that a charge for a substantive offence u/s 302 or Section 325, I.P.C. is for a distinct and a separate offence from that u/s 30, read with Section 149 or Section 325 read with Section 149. A person charged with an offence read with Section 149 cannot be convicted of the substantive offence without a specific charge being framed. Similar view has been reiterated in Lakhan Mahto''s case. The proposition of law settled by the apex Court is undisputed In the present case, admittedly, the accused faced trial for offence u/s 302 read with Section 149, I.P.C. and on the basis of the evidence three accused namely Vipan Kumar, Raj Pal and Prakasho Devi were found guilty u/s 323, I.P.C. by the trial Court and offence u/s 323, I.P.C. was found established against accused Prakasho Devi and Vipan Kumar. Injury which was dangerous to life of Raj Kumar was found grievous injury and blow which resulted in fracture of his left Ulna was also described as grievous injury and such injuries are defined as grievous injuries u/s 323 of the Indian Penal Code. Therefore, accused Raj Pal and Vipan Kumar were rightly held to have committed offence u/s 325, I.P.C. Accused Smt. Prakasho Devi and Vipan caused injuries on the person of PW Smt. Bhagwani Devi and all the injuries on her person were of simple nature caused with blunt weapon and thus, it merely amounts to an offence u/s 323, I.P.C. Therefore, in the facts and circumstances of the case, we find that no miscarriage of justice has been caused to the accused persons while convicting and sentencing them for lesser offences than charged for. We find no illegality in the order of learned Sessions Judge in convicting three accused namely Vipan Kumar, Smt Prakasho Devi and Raj Pal under Sections 325 and 323 of the Indian Penal Code.
Lastly, it is contended oh behalf of the accused Vipan Kumar that he was entitled to be dealt with u/s 6 of the Probation of Offenders Act, 1958 since he was below 21 years of age. In support reliance is placed in case ofShri Bhagwan and Anr. v. The State of Haryana 1986 (2) CLR 445. We have perused the decision of the learned Judges of the Punjab and Haryana High Court which is not applicable in the present case. In the instant case we find from the record that there is no evidence to establish that accused Vipan Kumar was below 21 years of age. He has given his age 19 years in statement u/s 313, Code of Criminal Procedure which was recorded on 17-2-1990. In case the accused wanted to take the benefit of Probation of Offenders Act, it was for him to prove his age to be below 21 years at the time of the trial which he has failed to discharge The accused has not even cared to produce any oral or documentary evidence before us to show that his age was below 21 years, in support of his submission We cannot accept this submission without any legal proof and the same is rejected.
No other point was urged by the learned Counsel for the parties.
In the result, for the foregoing reasons, we accordingly set aside the conviction and sentences of accused Jasbir Singh under Sections 325 and 323 of the Indian Penal Code He is acquitted of the charges framed against him by giving him benefit of doubt Fine if realized from him shall be refunded to him The appeal of other accused namely Vipan Kumar, Smt. Prakasho Devi and Raj Pal is dismissed and their conviction and sentences are upheld. The appeal of the State stands abared so far as deceased Kulfi Ram alias Ram Saran Dass is concerned and is dismissed against other accused persons.