Bhagwan Singh And Suresh vs State [Along With Crl. A. No. 302 Of ...
2007 Latest Caselaw 397 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. These appeals have been preferred by the appellants against the judgment dated 21.5.1999 whereby the Trial Court convicted Bhagwan Singh, Balwant Singh, Khazan Singh, Suresh, Mohinder & Rajinder under Section 304 Part I read with Section 149 IPC, under Section 325/149 IPC, under Section 323/149 IPC and under Section 148 IPC and sentenced each of the accused, by an order dated 27.5.1999 to undergo 6 1/2 years Rigorous Imprisonment under Section 304 Part-I IPC and fine of Rs. 1,000/- for offence under Section 304 Part-I IPC. The learned Additional Sessions Judge also sentenced each convict for two years R.I. for offence under Section 325 read with Section 149 IPC and a fine of Rs. 500/- and a fine of Rs. 1000/- for offence under Section 323 read with Section 149 IPC and another fine of Rs. 500/- under Section 148 IPC. All the sentences were to run concurrent.

2. The brief facts culled out of the complaint and evidence are that Karan Singh, the complainant and the accused persons were living in village Bijwasan. On 23rd April, 1989 Karan Singh was at the roof of his house in the village along with his wife and two small children. The plot adjoining to house of Karan Singh was lying vacant and was having a maund of junk/earth lying there. Bhagwan Singh, accused came to this plot perhaps in under-wears, (though stated naked in the evidence) and started urinating. Wife of Karan Singh saw it from the roof and she felt annoyed and told Karan Singh, about it. He also saw this obnoxious and irritating act of urinating in the open, adjacent to his house. However, at that time he did not say anything to Bhagwan Singh (while he was urinating). Afterwards, he went to the house of Bhagwan Singh, which was nearby in the same gali and called him out and told him that he should not behave in such an indecent manner causing annoyance to the women of the house. Bhagwan Singh at that time was sitting in his house along with Suresh, Khazan Singh and Balwant Singh and taking drinks. On hearing the advice of Karan Singh about being decent, all of them got annoyed and starting abusing him and told that they would behave in the same manner, he may do whatever he liked. On this, the complainant Karan Singh went to his father and brought his father along with him to Bhagwan Singh's house. Bhagwan Singh, Balwant Singh, Suresh and Khazan Singh on seeing Karan Singh with his father attacked them. Balwant Singh and Khazan Singh gave two lathi blows to Bharat Singh, father of Karan Singh. When Karan Singh tried to save his father he was also given lathi blows by them and Suresh, who was having an iron pipe, gave blows with iron pipe to them on which both of them cried for help. On hearing their cries Karan Singh's brother Govind, Jai Prakash and Rakesh came at the spot. They were also given lathi blows and pipe blows by all the four and Rajinder and Mahender, two more accused joined and started throwing brickbats on them and caused injuries to them. Dalip Singh, Uncle of Karan Singh reached at the spot hearing noise of quarrel and when he tried to save them, all the accused cried out that today was the chance to teach a lesson to him. Bhagwan Dass gave lathi blows on the head of Dalip Singh and Suresh gave iron pipe blows on the temple of Dalip Singh. With this Dalip Singh fell on the road. After he fell on the road still Khazan Singh and Ganesh who was on the spot kept on giving lathi blows on his body and Rajinder and Mahender kept on using brickbats. Dalip Singh became unconscious, while Karan Singh, Jai Prakash, Bharat Singh, Govind, Rakesh etc. received multiple injuries. Dalip Singh was removed to hospital who remained unconscious in the hospital and could not make statement to the police and succumbed to his injuries on next day.

3. All the accused persons were charged under Sections 147/148/149/304/325/323/34 IPC to which the accused persons pleaded not guilty.

4. To prove its case prosecution examined Karan Singh PW-2, Govind Kumar, PW-5, Bharat Singh PW-6 and Jai Prakash PW-11, as the material injured witnesses who had supported the prosecution case.

5. Ex PW-15/A is a report-cum-injury sheet of Dalip Singh which shows that deceased Dalip Singh, aged about 40 years had received severe head injuries and he died because of head injuries caused by blunt force. Three major head injuries noticed on Dalip Singh are injury Nos. 2,3 & 4 mentioned in the injury sheet. Dr. Arvind Tharagonkar PW-15 in his testimony gave his opinion that the three injuries viz. injury Nos. 2,3 & 4 individually and collectively were sufficient to cause death in ordinary course of nature. Injury No. 2 was on forehead of Dalip Singh. Injury No. 3 was on the right temporal region and injury No. 4 was on the left temporal region. Apart from these three injuries Dalip Singh was having several other injuries including injuries on front neck, on left shoulder, left temporal parietal region, surface, chest, lower back of the chest, abdomen and thighs. The postmortem report showed that the skull had been fissured and fractured because of the forceful head injuries both on frontal basis as well as on outer space and death was direct result of these head injuries. MLCs of Karan Singh, Jai Prakash, Govind and Bharat Singh were proved as Ex PW-10/A, PW-10/B, PW-10/C and PW-10/D respectively. Karan Singh, Bharat Singh and Jai Prakash had received grievous injuries. Karan Singh was having fracture and abrasion & lacerated wound in left forearm. Bharat Singh was having fracture and abrasion on right shoulder. Jai Prakash was having lacerated wound on left side of forehead 11/2 inch long besides abrasion on right knee & fracture. Govind was having abrasion and lacerated wound on the scalp.

6. FIR was registered at P.S. Najafgarh against the accused persons on the basis of statement of Karan Singh and he supported his complaint in his testimony before the Court and deposed on the same lines. He identified the lathis as Ex P-2 and P-3 having been recovered from Khazan Singh and Balwant Singh. He identified iron pipe Ex P-1 having been recovered from Suresh. In his cross-examination PW-2 stated that when he went to the house of Bhagwan Singh, he and his accomplices were inside the house. Since, he did not go inside the house, he could not say whether they were taking liquor inside the house or not and whether they were keeping lathis with them or not.

7. It was suggested to this witness that the accused persons were also admitted in the hospital in the injured condition, but this witness stated that he did not see accused persons in Safdarjung Hospital in injured condition. He stated that the accused persons were not beaten by them nor he saw any accused person in injured condition on the spot, when he left the spot for calling police. It was denied by the witness that he and his relatives had attached the accused persons in their house and they (complainant and other witnesses) were the aggressors or they caused injuries to the accused persons with lathis. While suggestions were given to PW-2 regarding their being aggressors and having come to the house of accused persons and picking up quarrel, no such suggestion was given to other witnesses in cross-examination. The suggestion to other witnesses was that no quarrel had taken place at all and accused persons were falsely implicated, out of enmity. In respect of Dalip Singh, the suggestion given to PW-2 was that Dalip Singh died because of the negligence of doctors while two defense witnesses were produced by the accused persons who gave a different story that Dalip Singh on that day was drunk and in drunken condition he was running on the road chased by his son. Dalip Singh, however, fell on the road and became unconscious.

8. The Trial Court believing the testimony of the injured witnesses and taking into consideration the entire circumstances, convicted the accused persons under above provisions of IPC and sentenced them as stated above.

9. It is argued by the counsel for the appellants that the Trial Court completely ignored the fact that the accused persons had also received injuries and their MLCs were prepared at the same hospital. Investigation in this case was unfair and dishonest as MLCs of four accused persons viz. Bhagwan Singh, Khazan Singh, Balwant Singh and Suresh was collected by the Investigating Officer along with the opinion about the nature of injuries but still neither the MLCs were proved nor the doctors, who examined the accused persons, were cited as witnesses. There was not a whisper in the entire case as to how the accused persons received serious injuries. It is further argued that there was no motive for the incident or for killing Dalip Singh. If there was any motive it was with Karan Singh and his family members to pick up quarrel with Bhagwan Singh since Bhagwan Singh had urinated in open plot adjoining the house of Karan Singh to the annoyance of his family and Karan Singh went to lodge protest against the behavior of Bhagwan Singh. Bhagwan Singh added insult to the injury by telling Karan Singh - "he may do whatever he likes". Thus, Karan Singh and his family members were having a motive to attack Bhagwan Singh and his relatives and they were the aggressors. Another argument is that no public/independent witness was examined by the prosecution to support the version given by Karan Singh and others which was a big flaw in the case of prosecution. It is further submitted that Section 149 was not attracted. The common object of the alleged unlawful assembly was not at all to kill Dalip Singh. The common object even as per evidence on record was to give beating and to teach a lesson and nothing more. Therefore, all the accused persons could not have been convicted under Section 304 IPC. Only the person responsible for the fatal blow could be convicted under Section 304 IPC. Other accused persons cannot be vicariously made liable for the act of one. It is argued that Dalip Singh was having three head injuries. It is not clear as which of the three injuries proved fatal, so none of the appellants can be linked to his death and all accused deserved to be acquitted.

10. It is also argued that the MLCs of the injured persons have not been proved properly and the doctor who examined the injured had not been produced in the Court and another doctor came to prove the MLCs.

11. The presence of the accused persons on the spot is not disputed by the appellant counsel, rather the plea of the appellant counsel is that the appellants had received injuries and the complainant party were the aggressors. Strangely enough, this defense is put only to one of the injured witnesses and all the other three injured witnesses have not been given suggestion that they were aggressors. Even to Karan Singh, though a suggestion was given that he was the aggressor, but no suggestion has been given as to how he was armed and to whom he caused injury. The right of private defense has not been taken in cross-examination of any of the injured witnesses who were examined in the court, neither the right of private defense is pleaded during the arguments. There is no law, providing that it is the duty of the prosecution to explain the injuries on the person of the accused in all cases rather the law is opposite. Section 106 of Evidence Act reads as under:

106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of providing the fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.

12. A perusal of the above Section would show that a person who has special knowledge about the facts has to prove the same. The accused persons were the best persons to explain as to how they received injuries and at whose hands since they had the special knowledge of these facts. The onus was on the accused persons to prove that they received injuries at the hands of the complainant. The accused persons did not lodge a counter FIR against complainant, nor filed a complaint in any Court that they were also caused injuries by the complainant side, grievous or simple, nor the accused persons chose to examine themselves as defense witnesses, neither they summoned any doctor from the hospital where alleged MLCs of the accused persons were prepared nor they examined any other witness of the area to show that the complainant party had come prepared and assaulted them first and caused injuries. They did examine two witnesses of the area just on the point that Dalip Singh was running and fell. In Surender v. State of Maharashtra 2006(3) Apex Criminal 252 Supreme Court has held that in all cases, it was not obligatory on the part of the prosecution to explain injuries on the person of accused persons. However, where a right of private defense is invoked by the accused persons and a special plea is taken and raised, in such cases it may be necessary on the part of the prosecution to explain injuries on the person of accused. The plea raised by the appellant counsel therefore must fail.

13. The other argument raised by the counsel for accused about Section 149 IPC is not tenable. It is settled law that for the purpose of attracting Section 149 of IPC, it is not necessary that there should be a pre-concert by way of meeting of persons of unlawful assembly as to common object. If a common object is adopted by all persons and shared by them it would serve the purpose. Although mere presence in an assembly does not make a person, a member of unlawful assembly unless it is shown that he had done something or omitted to do something to make him a member of unlawful assembly, but, if the different acts are shown to have been done by the members of unlawful assembly in the prosecution of common object, the person, who at the time of committing an offence is member of the assembly, becomes guilty of the offence. A common object is different from common intention. In the former no prior consent is required, neither a meeting of minds before the attack would be required. An object to do unlawful act can develop spontaneously after the people had gathered. In order to ascertain the common object of unlawful assembly the Court has to look into the circumstances and the intention of the members of assembly who had gathered generally. In the present case, when Karan Singh went to the house of Bhagwan Singh initially to complain about the indecent act of urinating in the open near his house, Bhagwan Singh was in the company of some of the accused persons. The accused persons thought it was a fundamental right of Bhagwan Singh to urinate wherever he liked and Karan Singh had no right to object to it. So, they all abused Karan Singh. Karan Singh left the place and went to his father Bharat Singh and narrated him the incident. Bharat Singh was aged about 70 years as per his testimony recorded in 1997, so, in 1989 he would have been around 62 yeas of age, Bharat Singh being an aged and old person accompanied his son to counsel the accused persons. However, the advice of Bharat Singh was also not taken kindly and the accused persons in exercise of their fundamental right of urinating wherever they liked, took offence as to how anybody could advice them against it and they assaulted Bharat Singh and Karan Singh and thereafter whoever came to their rescue and help. It is to be noticed that they were all armed with lathis or iron pipe or if not with lathis and iron pipe with brickbats. No suggestion has been given to any of the witnesses that any of the accused person was not present on the spot. The suggestions to all the witnesses except one are that the incident had not taken place at all. Even to Karan Singh there is no suggestion that any one of the accused persons was not present or was not part of unlawful assembly. Thus, from the acts of the accused person, it is obvious that the accused persons were acting under common object of teaching lesson by breaking heads and body parts of the persons who objected to open urinating of Bhagwan Singh. Thus, this common object was very much present in the minds of the members of the assembly and for this reason better sense did not prevail upon any of them and everybody considered that Bhagwan Singh had a right to urinate openly wherever he wanted and nobody could object. If anybody objected to the same he had to pay a price for the same, even by his life.

14. The next argument advanced is that it is not a case of Section 304 Part I but 304 Part II. The object of the assembly was not to kill Dalip Singh, but only to teach a lesson. Thus, the death of Dalip Singh would not be culpable homicide not amounting to murder covered under Section 304 Part I, but would be Section 304 Part II, IPC. This would be an academic exercise in this case. The punishment awarded is 6 1/2 years of imprisonment and the punishment under Section 304 Part II is up to ten years R.I. and fine. The learned Additional Sessions Judge has not awarded punishment more than 10 years in this case. However, the nature of injuries caused and the force with which the injuries were caused on the head of Dalip Singh and others would show that the accused persons brutally attacked the complainant and Dalip Singh and they left no scope for the life of Dalip Singh. Dalip Singh was hit on head with lathis and iron rods by the accused persons with full brutal force. Three injuries present on the head of Dalip Singh were individually sufficient to cause his death. Dalip Singh was a youngman of 40 years of age at the time of his death. It seems that the accused persons were nourishing special grudge against Dalip Singh and the moment they saw Dalip Singh a 'lalkara' was given, 'he should not be spared and taught a lesson' while this 'lalkara' was not given for other injured persons. That would show existence of a hate relationship between the accused persons and Dalip Singh and this hate relationship compelled the accused persons to give full force blows on the head of Dalip Singh resulting into fracture of his skull at three vital places. Not only this even when he fell down, the accused persons kept on hitting him with lathis which is proved by the oral testimony of witnesses as well as by the injury report of the witness. This shows that all the accused persons had targetted Dalip Singh with a special intention of removing him from this world itself. The common object thus was to injure Dalip Singh in such a manner and to such an extent that there were no chance of his survival.

15. It has come on record that Dr. P.K.Goel who had examined Karan Singh, Bharat Singh, Jai Prakash had left the service of hospital and another colleague doctor who identified the signatures of Dr. Goel was examined to prove the MLCs and to prove the nature of injuries. It is argued that MLCs have not been proved as per law. I consider that the argument is misconceived. A document can be proved by the author of the document or anyone else who has seen him signing or by one, who can identify his signatures. MLCs are recorded in the hospitals in the normal course of duties by the doctors at the casualty. The record of the injuries is prepared and documented for the reason that it is not possible for any doctor to remembr orally as to what were the injuries on the person of a patient even after few days. A doctor has to examine in casualty, several patients per day and whenever there is a medico legal case, a record of injuries is prepared. The doctor who prepares the record of injuries is normally called to prove the MLC in the Court, during evidence which may be after a year or more. Nobody expects from a doctor to remember orally as to who was the person examined by him and what were the injuries. A doctor may not be even able to identify the patient. The doctor is not even supposed to give oral testimony about the injuries on the person of a patient. A doctor therefore, speaks from the MLC. MLC is an authentic record of injuries which is prepared in regular course of business by the doctors and can be relied upon by the Courts, even when the doctor, who prepared MLC is not examined in the Court and the record is proved by any other doctor or record keeper. Any person, who alleges that the record of injuries maintained by the hospital was not authentic and there has been tampering with the record he has to show to the Court and prove how tampering has been done. It cannot be expected from the hospitals to keep track of the doctors after the doctor leaves the hospital, neither it is necessary for a doctor to keep the hospital informed about his whereabouts. A doctor today working in AIIMS or Safdarjung Hospital may tomorrow be working in Bangalore and next month may be away to any other country. Merely, because doctor, who prepared MLC is not personally examined, the MLCs cannot be disbelieved. Proving of MLCs by a colleague doctor, who identifies the signatures of the doctor who examined the patients or by any administrative staff of the hospital or by any record keeper who identifies the signatures of the doctor, is sufficient and good proof and MLC cannot be doubted unless the tampering with MLC is proved by the person alleging tampering. When an other doctor is examined to prove the MLC of a colleague, all questions regarding medical Jurisdiction prudence can be asked to him. If a record clerk is examined and the accused wants to ask some questions about the medical aspects he can ask the Court to summon some doctor from the hospital to answer the questions on the medical aspects of injuries, their nature, their impact on the body. All doctors, who are in the same field, can answer such questions. It is not necessary that the doctor who examined the patient only can answer such questions.

16. I find no force in the appeals. The counsel for appellant has prayed for lenient view be taken by the Court and the sentence already undergone by the accused persons be considered sufficient to meet the ends of justice.

17. I consider that the Trial Court had already shown sufficient leniency. The accused persons had no respect either for decency or for life. They considered it an offence to advice that one should not urinate in open and should not be indecent. They had no respect for elderly and even hit the elderly man brutally. I find no reason to show any leniency to the accused persons/appellants.

18. Accordingly, both the appeals are dismissed. The bail bonds of the accused persons are cancelled. They are directed to surrender before the Trial Court or Superintendent, Central Jail, Tihar to undergo the rest of the sentences. The Trial Court should send them to jail on their surrender.

19. A copy of this order may also be sent to the Superintendent, Central Jail, Tihar.