State (Govt. Of Delhi) vs Bhartu & Ors.
2011 Latest Caselaw 4110 Del

$~R-2

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Decision: 25th August, 2011


+                              CRL.A.176/1999

        STATE (GOVT. OF DELHI)                       ..... Appellant
                  Through:   Mr.Pawan Sharma, Standing Counsel
                             (Crl.) with Mr.Harsh Prabhakar,
                             Advocate

                               versus

        BHARTU & ORS.                              ..... Respondents
                  Through:     Sheikh Issar Ahmad, Advocate for R-1,
                               R-3 and R-4
                               Mr.P.C.Sharma, Advocate for R-5, R-6,
                               R-7, R-8, R-9 and R-10.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SUNIL GAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?

     3. Whether the judgment should be reported in the
        Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. Of the 10 accused, R-2 Smt.Sharwan and R-7 Sh.Raj Singh have expired and thus qua them the appeal abates. Their acquittal has to be treated as having attained finality.

2. Arguments heard qua remaining respondents i.e. Sh.Bhartu, Smt.Ballo, Smt.Prem, Sh.Jai Singh, Smt.Babita, Sh.Rajesh, Sh.Mahabir Singh and Smt.Rani Devi.

3. Vide impugned judgment and order dated 4.8.1998, 10 accused sent for trial and charged for having committed offences punishable under Section 302/307/147/148/149/ 452/323 and 325 IPC have been acquitted. All accused belong to the same family. So do the complainants.

4. That an incident took place in which Kaptan, Nirmala, Sudershana, Poonam, Ratni and Bhim Singh received injuries with a blunt object at around 6:00 AM on 30.6.1994 is not in dispute and the place of occurrence is a plot of land ad- measuring 1100 square yards near a Johar in village Palam is also not in dispute. As per the complainant group, the plot of land was sold by Sultan Singh to Satbiro who raised a boundary wall enclosing the plot and constructed a tin shed room thereon in which her father-in-law Bhim Singh used to reside. When Satbiro along with her daughters Poonam and Savita went to the plot to place cow-dung, Ratni, Sudershana and Nirmala along with Kaptan Singh also came to the plot to meet Bhim Singh. The accused, armed with lathis assaulted them and as a result Kaptan Singh, Bhim Singh, Poonam, Nirmala, Ratni and Sudershana received injuries. The purpose of the assault alleged was to take forcible possession of the plot. Bhim Singh died on 22.8.1994 i.e. after 52 days of the incident and it needs to be highlighted that he was discharged from the hospital and he died in his house. He was aged 80 years when the incident

took place.

5. Notwithstanding the injured withstanding the cross- examination during trial and notwithstanding the injured eye witnesses implicating the accused, the learned Trial Judge has acquitted the accused holding that the prosecution has led no evidence that Sultan Singh owned the disputed land or sold the same to Satbiro and additionally led no evidence to prove that Satbiro or her family was in possession of the land. On the contrary, through the medium of the Khatoni Ex.D-1, it stood established that the accused group was the recorded owner of the land in question. Further, with reference to the MLC Ex.PW- 21/DB of accused Rajesh which showed that he had received simple injuries, learned Trial Judge has held that the prosecution has not satisfactorily explained the injuries on Rajesh. For the additional reason that no public witnesses were examined, the learned Trial Judge has accepted the version of the accused that the complainant side was trying to take forcible possession of the plot.

6. Before noting the arguments advanced and reflecting upon the evidence it needs to be highlighted that on the basis of the charge sheet filed, Mahavir, Rani, Bhartu, Ballo, Babita, Prem and Sharwan i.e. 7 of the 10 accused were charged for having committed offences punishable under Section 307/149 IPC, all 10 were charged for the offence punishable under Section 147/148 IPC and Raj Singh, Jai Singh and Rajesh were charged for offences punishable under Section 302 Part II read with 149 IPC.

7. Being conscious of the law that where a view taken by a learned Court of Sessions is a reasonable probable view, merely because another view emerges would not be a ground for the Appellate Court to reverse a judgment of acquittal. But where it is found that a material evidence or a material circumstance has been ignored by the learned Court of Sessions or where it is found that evidence or a part thereof has been completely misread, it would be the duty of the Appellate Court to take corrective action.

8. The Khatoni Ex.D-1 shows that accused Bhartu had 1/3rd share in the land. 1/3rd was under the ownership of Roshan S/o Data Ram and Om Prakash S/o Tek Chand owned the remaining 1/3rd portion. The Khatoni records a mutation entry that Roshan S/o Data Ram transferred his share to Bhim Singh, Sultan Singh and Dilip Singh and thus Bhim Singh's family acquired 1/9th share in the land. It is apparent that the learned Trial Judge has ignored the mutation entry in the Khatoni. The mutation entry also shows Sultan Singh having acquired 1/9 th share in the land and it appears that this 1/9th share of Sultan Singh was purchased by Satbiro, but no mutation entry was got effected in the revenue record. Be that as it may, the Khatoni records Bhim Singh as 1/9th owner of the land.

9. The Khatoni would show co-ownership within the family of the accused and the complainant and thus it could well be inferred that the tension brewing was as to who would occupy what part of the land and there is no evidence of physical partition. It is apparent that as usually happens in the

villages, of people remaining un-officious with respect to land deals and try and sort out the issues by use of force, in the instant case the parties used force to resolve a land dispute.

10. The impugned judgment has made no reference to the MLCs of the complainant group and thus we would highlight that the MLC Ex.PW-16/A of Kaptan shows him having received lacerated wound on the left temporal region. MLC Ex.PW-16/B of Nirmala shows a lacerated wound on the occipital region, right hand, both shoulders and the lumber region. MLC Ex.PW-16/C of Sudershana shows a lacerated injury on the scalp, left thigh and the left thumb. MLC Ex.PW-16/D of Poonam shows lacerated injury on the right hand with a fracture of the right hand little finger, left hand and left shoulder. MLC Ex.PW-16/E of Ratni shows lacerated injuries on the left forearm near elbow. MLC Ex.PW-16/F of Bhim Singh, who ultimately died after 52 days, shows a lacerated injury on the scalp, 3 abrasions on the right arm and the left arm.

11. The MLC Ex.PW-21/DB of Rajesh shows a lacerated injury on the right hand little finger, a 6 cm long bruise at the middle of the back and a bruise on the right leg.

12. The learned Trial Judge has just not discussed the injuries received by 6 persons from the side of the complainant. It is a material circumstance that from the complainant side 6 persons were beaten and from the side of the accused only 1 had received fairly minor injuries.

13. A perusal of the statements made by the accused would show and for which we may note the version best

explained by Sharwan Devi. To the last question when examined under Section 313 Cr.P.C. whether she had anything to say, she responded: 'I am innocent. I have been falsely implicated in this case, at the instance of R.S.Dahiya, ACP, who is the relative of the complainant side. In fact the said plot measuring 1100 years is our ancestral property since the time of our grand father. This plot is jointly owned by us and is in our joint possession being 1/3rd share owned by Bhartu, one third owned by Lat Sh.Om Prakash, now his wife (Smt.Swarna) and rest of the one third share equally owned by Dalip Singh, Sultan Singh and late Bhim Singh. All these three having one ninth share. I tender in evidence the certified copy of Khatauni as Ex.D-1 showing the joint ownership of the said plot. Boundary wall on this plot was raised by all of us, jointly in 1987 and there were 3 gates in that boundary wall. There was no tin shed room. The said plot was being used by all of us jointly for throwing refused and cowdung. Some cases are also pending regarding the dispute among complainant side and our families in respect of this plot before SDM and Civil Courts. On 4.6.94 Bhim Singh, Sultan Singh and Kaptan called at the P.P.Palam Colony by the police on the applications of Bhartu and Smt.Swarna Devi as they were trying to illegally and forcibly occupy the said plot by closing down 2 gates and they were restrained by the police from doing so. On 30.6.94 I alongwith Bhartu and Rajesh went to the plot on a casual visit and we found that Kaptan Singh, Sultan Singh, Bhim Singh, Sudershana and other ladies of the family, who have been called on the plot

on that day with a view to illegally and forcibly occupying the said plot by closing two gates of the boundary wall by raising a tin shed room and were raising construction. We asked them not to do so. On this, they all attacked Rajesh and tried to drag all of us out of our plot and inflicted injuries upon Rajesh, who thereafter snatched one danda (cudgel) and inflicted injuries upon them in his self defence. Later on the police came at the spot and took us from the plot and also obtained my signatures on plain papers'.

14. This version of the accused cannot be accepted by any reasonable or logical person for the reason it is unbelievable that Rajesh could single handedly snatch a danda and inflict, in self defence, injuries on 6 aggressors as sought to be explained.

15. Factoring in the evidence which has been ignored by the learned Trial Judge, it becomes clear that the accused were armed and the complainant side was unarmed. The complainant side assembled at the spot under the circumstance as noted in para 4 above and the accused launched an assault.

16. Now, what would be the object of the unlawful assembly formed by the accused.

17. That only few of them were armed with ordinary lathis available commonly in villages and none of them being armed with a farm implement made of iron, which are equally freely available, would show that the object was to beat, if resistance was faced from the side of the complainant group and not to launch a murderous assault. 4 blows appear to have accidentally landed on the occipital region of 4 persons from the

complainant group and all other injuries are directed towards the non-vital part of the body. Nobody from the side of the complainant was made a special target. We accordingly hold that there is no evidence that the object of the unlawful assembly was to murder anybody. The object was to beat the complainant group and scare them or intimidate them so that the complainant group would leave the plot.

18. Assuming that the lathis used were dangerous weapons, the object of the unlawful assembly would be to cause hurt by dangerous weapons and not cause a grievous hurt. Thus the offence committed by the accused would be of forming an unlawful assembly and voluntarily causing hurt by dangerous weapon and thus we conclude by holding that the accused have committed offences punishable under Section 147/148/149/324 and 452 IPC.

19. All accused other than Ballo and Babita have suffered imprisonment for 1 year, 2 months and 26 days. Ballo and Babita suffered imprisonment for 20 days.

20. The offence was committed on 22.8.1994 and we are exactly 17 years down the line. There is no evidence of the accused having committed any other crime. We note that Ballo and Babita were barely out of their teens and being illiterate women, were misled into a misadventure and thus we hold that for the offence committed by the accused they require to be sentenced to undergo imprisonment for the period already undergone.

21. The appeal is partially allowed as per para 18 above

and qua the sentence as per para 20 above. The respondents need not be taken into custody in view of the sentence imposed.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE AUGUST 25, 2011 mm