Yadhvir and ors. vs Prabhu Ram and ors

J.S. Sekhon, J. (Oral)

All the appellants were convicted by the learned Additional Sessions Judge, Bhiwani on the charge punishable under Section 148 of the Indian Penal Code, and each one of them was awarded rigorous imprisonment for one year. They were also convicted by the said Court on a charge under section 302 read with Section 149 of the Indian Penal Code, qua the murder of Miss Vinod Kumari and each one of them was sentenced to undergo imprisonment for life and a fine of Rs. 1000/ or in default of payment thereof, to further suffer two months'' rigorous imprisonment. They were also found guilty of the charge punishable under section 323/149 of the Indian Penal Code, for causing simple hurt with blunt weapon to Jogi Ram, Pawan Kumar, Sumitra and Ajit Singh witnesses and each one of them was awarded three months'' rigorous imprisonment. The substantive sentences were however directed to run concurrently. Feeling aggrieved against their convictions and sentences the appellants have come up in appeal.

The brief resume of the facts of the prosecution case is that she calf of the buffalo of Ajit Singh PW 1 had died about two weeks prior to this occurrence and she buffalo was ailing during those days The complainant suspected that the she calf had died as well as the buffalo was ailing by contracting disease from the dog of Prabhu, father of Yudhvir, Vinod and sanjay accused as this dog used to take shelter in the Turi Wala Kotha of the complainant. On first September, 1988 at about 6.30/7 PM Ajit Singh PW 4 left for his residential house from cattle shed alongwith his son Pawna Kumar. They observed that the dog of Prabhu had entered their Turi Wala Kotha. He and Pawan Kumar then scared away the dog by pelting stones. Yudhvir accused came there and lodged protest as to why his dog was stoned. Ajit Singh then told him that the dog was suffering from contagious disease which was dangerous to his cattle. Yudhvir accused then left the spot abusing and returned to the spot alongwith single barrel gun of his father Parbhu. In the meanwhile Vinod Kumar accused armed with a Jaili, Sanjay, Lakhi Ram armed with lathis Jagbir empty handed, Mst. Ana Kaur wife of Lakhi Ram accused and Mst. Daya Kaur carrying stones also arrived there. Jagbir caught hold of Ajit Singh while Vinod Kumar accused dealt a jaili blow lathi wise on his head. Ajit Singh raised alarm, on hearing which his father Jogi Ram, his niece Sumitra, Suresh, vinod another niece also arrived at the spot and tried to rescue him. Suresh was given a blow with lathi by Sanjay accused on his chest and abbomen. Lakhi Ram accused gave lathi blow on the right hand and wrist of Jogi Ram while Vinod inflicted a jaili blow on the elbow of Sumitra. Mst. Ana Kaur and Mst. Daya Kaur pelted stones which hit Pawan Kumar, Sumitra and Ajit Singh. Vinod Kumari deceased also tried to rescue them. Then Yudhvir accused inflicted two blows on her chest and neck with the butt of gun. She fell down unconscious after receiving injuries. Sanjay accused also gave two lathi blows to Ajit Singh who fell down. Thereafter, Lakhi Ram accused also dealt a lathi blow on his chest. In the meanwhile, Zile Singh, brother of Ajit Singh and Karan Singh arrived at the spot. Thereafter all the accused alongwith their respective weapons went to their houses. Zile Singh brought all the injured in a four wheeler to Civil Dispensary Charkhi Dadri but Miss Vinod Kumari succumbed to her injuries on the way.

Dr. S.C. Gupta of General Hospital, Dadri medically examined Suresh witness at 8.50 PM on 1st September, 1988 and found three blunt weapon injuries on his person. This doctor also examined Pawan Kumar witness at 9 PM and two blunt weapon injuries were found on his person. This doctor also found two injuries on the person of Jogi Ram witness while three injuries were found on the person of Kumari Sumitra PW 5 and four injuries with blunt weapon were found on the prson of Ajit Singh PW 4. The injuries on the person of these persons were however declared simple after Xray examination. Dr. Gupta sent intimation at 9.45 PM Ex. PK about the arrival of the injured alongwith the dead body of Miss Vinod to the local police. On receipt of this intimation Assistant Sub Inspector Rajbir Singh of Police Station Sadar Dadri rushed to the hospital and recorded statement Ex. PV of Ajit Singh PW after he was declared fit to make statement by the doctor while the other injured were found unfit to make statements. On the basis of statement Ex. PV a case under Sections 302/148/149/323/324/506 of the Indian Penal Code and under section 25/27 of the Arms Act was got registered against the accused vide First Information Report Ex. PV at 12.10 AM. during that night through Sub Inspector Dal Singh. The special report of the first information report was conveyed to the Village Magistrate at Dadri at 2 AM during the same night.

Assistant Sub Inspector Rajbir Singh then drafted inquest report Ex. PB of the dead body of Miss Vinod. The dead body was got subjected to post mortem examination on 2.9.1988 at 11 AM from Dr. U.S. Disodia PW 1 of General Hospital, Charkhi Dadri. This doctor found a simple abrasion measuring 8 cm x 1 cm on the left breast of the deceased. On dissection he detected fracture of odontoid, process of second cervical vertebra. In his opinion this injury was sufficinet to cause death in the ordinary course of nature. Both these injuries were antemortem.

Sub Inspector Inder Singh PW 7 took over the investigation of this case on 2nd September 1988 from Assistant Sub Inspector Rajbir Singh at 7 A.M. He then recorded the statement of Jogi Ram, Sumitra, Pawan and Suresh injured Witnesses. He also inspected the spot and prepard its visual site plan Ex. PDD. He also took in possession parcels of the clothes of the deceased as well as of the injured witnesses. He found all the accused absconding from their houses. On 5th september, 1988 the dog of Yudhvir accused was got medically examined from Dr. Ashok Kumar, Veterinary Surgaon and he found that the dog had a wound on neck infested with maggots. Sub inspector Inder Singh arrested all the accused on 6th September 1988 when they were produced before him at bus stop of their village Kheri Bura by one Balbir Singh. Vinod Kumar accused at the time of his arrest produced jaili Ex. P4 while Lakhi Ram accused produced lathi Ex. P5 Sanjay Kumar accused also produced lathi Ex. PC. All these weapons were taken in possession after putting them in different sealed parcels. Accused Sanjay Yudhvir. Mst. Daya Kaur and Jasbir had injuries on their persons and were got medically examined. Accused Yudhvir on interrogation got recovered a single barrel. 12 bore gun of his father from Turi Wala Kotha which was seized. After completion of investigation, all the accused were arraigned for trial on such like allegations.

Before the trial Court in order to prove its above referred case, the prosecution examined nine witnesses besides tendering the formal evidence of Constables Rajbir Singh, Satbir Singh and Chottu Ram on affidavits Ex. PS, Ex. PT and Ex. PU respectively. The reports Ex. PHH and Ex. PHH/1 of the Director, Forensic Science Laboratory, Madhuban were also tendered. Only Ajit Singh and Miss Sumitra Devi injured were examined as witnesses to the actual occurrence while the remaining eye witnesses were given up as being unnecessary.

The version of the accused appellants before the trial Court was that of innocence and false implication. The above referred injured accused admitted injuries on their persons but maintained that these were suffered by them when children of two houses started pelting brick bats and stones in the street and some of the brick bats pelted by the children hit the members of Ajit Singh''s family while they were sitting in the courtyard of their house. The accused, however led no evidence in defence despite being called upon to do so.

The trial Court believing the ocular evidence of Ajit Singh and Miss Sumitra injured witnesses coupled with the medical evidence and recovery of weapons from the possession of the accused convicted and sentenced the appellants as referred above.

We have heard the learned counsel for the parties besides perusing the record.

Admittedly, there was no previous ill will between the parties. The matter flared up all of a sudden when Ajit Singh and Pawan Kumar son of Ajit Singh PW 4 scared away the dog of Yudhvir accused by pelting stones. Yudhvir accused objected to the same which resulted in exchange of hot words between Yudhvir accused on one side and Ajit Singh PW 4 and the latter''s son Pawan Kumar on other side. The houses of the accused party and the complainant party are located opposite to each other in the same street. The occurrence has taken place in the street itself. Yedhvir accused then brought as single barrel gun of his father. The remaining accused were also attracted to the spot. The factum that six persons were injured on the sside of the complainant party also shows that on hearing commotion the members of the house hold of Ajit Singh PW also arrived at the spot. It is noteworthy that Pawan Kumar injured is the son of Ajit Singh injured PW while Miss Vinod deceased was the daughter of Zile Singh brohter of Ajit Singh while Miss Sumitra injured is another daughter of Zile Singh and Suresh is the son of Zile Singh while Jogi Ram injured is the father of Ajit Singh.The accused side are also closely related inter se as Jagbir accused is the son of Lakhi Ram accused while Mst. Ana Kaur is the wife of Lakhi Ram. Lakhi Ram and Parbhu are real brothers Yudhvir, Vinod and Sanjay accused are the sons of aforesaid Parbhu. The factum that Sub Inspector Inder Singh had found injuries on the persons of Sanjay, Yudhvir, Mst. Daya Kaur and Jagbir accused and got them medically examined also shows that the complainant party has also indulged in brick batting but the version of the accused that they had received brick bats at the hands of some children while sitting in their house is not acceptable. Simply because the complainant party had not expalined party had not explained the injuries with brick bats of these accused is of no consequence because there is ample evidence on the file that the accused party was aggressor. Strangely enough, these accused had not made any effort to exmine the doctor in order prove the number the nature of injuries suffered by them.

The question then arises whether all the accused had formed an unlawful assembely or had individually reacted to the situation. In this regard, it is noteworthy that the matter flared up all of a sudden over stoning of the dog of Yudhvir accused by Ajit Singh and his son Pawan Kumar on the suspicion that the dog was suffering from contagious disease and the she calf of the buffalo of Ajit Singh had earlier died by contracting the disease from his dog. Thus it appears more probable that all the accused were attracted to the spot on hearing exchange of hot words between Yudhvir accused and Ajit Singh PW 4. The factum that Mst. Ana Kaur and Mst. Daya Kaur had indulged in pelting stones while Jabir accused had arrived at the spot empty handed supports the above referred conclusion. Thus all the accused had reacted individually to this situation. The version of Ajit Singh PW 4 and Miss Sumitra Devi that Jagbir accused had secured Ajit Singh when other accused gave him injuries is not acceptable as only four blunt weapon simple injuries were found on his person. However, the possiblity cannot be ruled out that Jagbir accused had not taken active part in the assault. No injury is attributed to him. Thus he has not committed any offence. Vinod, Sanjay, Lakhi Ram, Mst. Ana Kaur and Mst. Daya Kaur accused had caused simple injuries to the witnesses on their individual reaction to the situation. Thus they can at the most be held guilty for offence punishable under Section 323 of the Indian Penal Code. By no stretch of imagination, it can be said that they had formed an unlawful assembly while armed with deadly weapons. Thus their (all the appellants) conviction and sentence under Section. 148 of the Indian Penal Code being not sustainable requires setting aside.

The question then arises whether Yudhvir accused appellant who had given two blows with butt of the gun to Miss Vinod aged about 16 years can be held liable for offence of culpable homicide amounting to murder under the provisions of clause thirdly to Section 300 of the Indian Penal Code. In this regard it is noteworthy that he has simply pushed this girl with the butt of a gun. Ajit Singh in his statement Ex. PV stated that Yudhvir accused had given two blows with butt of the gun on the breast and neck of Miss Vinod. This statement was recorded at 11 PM on the eve of the occurrence and on its basis formal first information report was recorded at 12.10 AM during that night and the special report of the first information report had reached Illaqa Magistrate at 2 A.M. The post mortem examination on the dead body of Miss Vinod was conducted by Dr. U.S. Disodia PW 1 on the next day at 11 AM on 2nd September, 1988. Thus by no stretch of imagination, Ajit Singh, PW could be expected to know from the medical evidence that Miss Vinod had died due to the fracture of second cervical vertebra till the post mortem examination. was performed. Thus his version in Ex. PV about Yudhvir accused having given blow on the neck of the victim is nothing but a whole truth because if he had not observed this accused giving injuries, he would not be able to state so in his statement recorded before the post mortem examination of the dead body especially when there was no external injury on the neck. Thus under these circumstances there is no scope for holding that Miss Vinod had suffered injuries on her second vertebra due to violent fall. Anyhow the but of the gun having flat surface appears to have not been used with a great force against the neck of the victim. Thus Yudhvir accused cannot be attributed necessary intention to cause that injury to the second cervical vertebra which was found sufficient by the doctor to cause her death in ordinary course of nature. He cannot be attributed with remote knowledge that mere giving a push to the child with the butt of the the gun would result in causing this injury. Consequently, he is neither liable for the offence of culpable homicide amounting to murder or culpable homicide not amounting to murder but only for having voluntarily caused grievous hurt with blunt weapon punishable under Section 325 of the Indian Penal Code.

Consequently, for the reasons recorded above, the convictions and sentences of the appellants under sections 148,302/149 and 323/149 of the Indian Penal Code being not sustainable are hereby set aside by accepting their appeal party except that of Jagbir accused appellant. Jagbir appellant is however acquitted of all the charges by accepting his appeal in toto while Yudhvir appellant is held guilty of the offence under section 325 of the Indian Penal Code, for the grievous injury with blunt weapon on the person of Miss Vinod deceased and sentenced to undergo five years'' rigorous imprisonment and a fine of Rs. 1,000/ or in default of payment thereof to further suffer six monthys rigorous imprisonment by partly accepting his appeal Vinod, Sanjay, Lakhi Ram, Mst. Daya Kaur and Mst Ana Kaur appellants are, however found guilty of the offence punishable under section 323 of the Indian Penal Code on individual counts qua simple injuries caused by each of these accused to the injured witnesses. These accused had undergone twenty seven days sentence after their conviction by the trial Court and before their release under orders dated 11th December, 1990 of the High Court. Vinod, Sanjay, Lakhi Ram, Mst. Daya Kaur and Mst. Ana Kaur appellants were arrested in this case on 6th September 1988. The first three accused were released on bail on 10th September, 1988 by the learned Sessions Judge, Bhiwani. Thus the sentence already suffered by these appellants is considered as sufficient for offence under section 323 of the Indian Penal Code.

The appeal stand disposed of as indicated qua each of the appellants.