Randhir Singh & Others vs State
2014 Latest Caselaw 2804 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRIMINAL APPEAL NO. 518/2011

                                         Reserved on: 30th April, 2014
%                                    Date of Decision:30th May, 2014


RANDHIR SINGH & OTHERS                        ..... Appellant
             Through  Mr. Ramesh Gupta, Sr. Advocate with
                      Mr. Manu Sharma and Mr. Abhir Datt,
                      Advocates for Randhir Singh and
                      Krishan.
                      Mr. D.C. Mathur, Sr. Advocate with
                      Advocate for appellant Chattar Singh.


                            Versus

STATE                                                   ..... Respondent

Through Ms. Rajdipa Behura, Additional Public Prosecutor.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J:

Seven appellants, namely, Randhir Singh, Chattar Singh,

Krishan Kumar, Ranbir Singh, Ajay @ Leelu, Netarpal and Jagjit @

Jaggar in the present appeal have impugned their conviction under

Sections 148,302,326,308,323 read with Section 149 of the Indian

Penal Code, 1860 (IPC for short) by the impugned judgment dated 26th

February, 2011 passed in S.C. No.54/09 arising out of FIR No.09/2003

registered under Sections 307/302/201/148/341/506/326/324 IPC at

police station J.P. Kalan. Kehar Singh was also charged, but had

expired during the pendency of the trial. Proceedings against Kehar

Singh abated vide order dated 27th January, 2011. Impugned Order on

the point of sentence dated 11th March, 2011, directs as under:-

"I accordingly hereby sentence the convicts to undergo imprisonment for life each and to pay fine of Rs.10,000/-each and in default of payment of fine, to further undergo S.I. for six months each for the offence punishable U/s 302/49 IPC. The convicts shall further undergo RI for five years each and pay fine of Rs. 5000/- each ID to undergo SI for three months each for offence punishable under Section 308/1491PC. The convicts shall further undergo RI for five years each and pay fine of Rs. 5000/- each ID to undergo SI for three months each for offence punishable under Section 326/149 IPC. The convicts shall further undergo RI for one year each for offence punishable under Section 323/149 IPC. The convicts shall further undergo RI for one year each for offence punishable under Section 148 IPC. All the sentences shall run concurrently. The convicts shall be entitled to benefit of Section 428 Cr. P. C. as per law."

2. Randhir Singh has also preferred Criminal Appeal No. 616/2011

against acquittal of Hari Chand, Sant Ram, Prem Kumar, Naveen,

Satpal and Sukhchain vide judgment dated 26 th February, 2011 in

S.C.No.53/09 arising out of FIR No.73/03, police station J. P. Kalan

under Sections 307/506/34 IPC. Arguments in the two appeals were

heard at the same time, but we are dealing with the two cases

separately as Criminal Appeal No. 616/2011 is a cross case and the

judgments impugned in the two cases are separate.

3. The contention of the State, which has been upheld by the Trial

Court, is that the appellants herein along with late Kehar Singh, in an

unlawful assembly, had caused/inflicted head injury to Anil on 1st

February, 2003 leading to his death. The appellants and late Kehar

Singh had also caused injury to Naveen resulting in amputation of his

two fingers. This had happened when Naveen, Sant Ram (PW-2) and

Hari Chand (PW-9) had moved forward to save Anil. The appellants

and late Kehar Singh were also responsible for causing simple injuries

to Hari Chand (PW-9), Sant Ram (PW-2) and Prem Kumar (PW-1).

4. Homicidal death of Anil consequent upon suffering injuries on

1st February, 2003 has been proved beyond doubt and is virtually

undebatable in view of the ocular testimonies of Prem Kumar (PW-1),

the eye witnesses and more importantly the testimony of Dr. Anil

Jindal (PW-10), CMO, Maharaja Agrasen Hospital, Punjabi Bagh,

New Delhi. Sant Ram (PW-2), Naveen kumar (PW3) and Hari Chand

(PW9) have also supported the prosecution case. PW-10 has deposed

that Anil was brought by his uncle Sant Ram (PW-2) with alleged

history of assault by some persons in Ghumman Hera village near

Najafgarh. On examination, he noticed incised wound on the back left

lateral side and second incised wound approximately 6 inches in length

on parieto occipital region with skull fracture. Brain matter could be

seen with active bleeding. Anil subsequently expired on 7th February,

2003 at 6 p.m., as per death report Ex.PW22/02. His body was

subjected to post mortem which was conducted by Dr. Manoj Nagpal,

DDU Hospital. Dr. B.N. Mishra, Medical Officer, Department of

Forensic Medicine, DDU Hospital appeared as PW-27 and testified

that Dr. Manoj Nagpal had left the hospital and his present

whereabouts were not known. He being conversant with signature and

handwriting of Dr. Manoj Nagpal, identified and proved the post

mortem report, which was marked Ex.PW-27/A. As per the post

mortem report, the deceased i.e. Anil had the following injuries:-

"1. Stitched wound present over the scalp which is perpendicular to the wound no. 2 and

2. Bony defects on right parietal region of head with size 3x3cm.

3. Brain matter present below scalp which is infected and foul smelling.

4. Stitched wound approxiated at infra scapular region measuring 6cm on right side."

5. The said post mortem was conducted on 8 th February, 2003 and

the time of death as opined was 18 to 22 hours. The post mortem

report states that cause death was "coma". We agree with the learned

counsel for the appellants that "coma" being described as cause of

death is rather vague. But, then we have positive evidence in the form

of testimony of PW-27, who after noting the injuries mentioned above,

in response to the Court‟s question has in clear and categorical terms

stated that injuries no.1, 2 and 3 individually as well as collectively

were sufficient to cause death in ordinary course of nature. The said

opinion was reiterated by PW-27 in cross-examination. For the sake

of convenience, we shall be referring to the purported injuries suffered

by Prem Kumar (PW-1), Sant Ram (PW-2), Naveen Kumar (PW-3)

and Hari Chand (PW-9), separately.

6. The court depositions made by PWs-1, 2, 3 and 9 are in seriatim

and without major contradictions. Suffice it would be to refer to the

testimony of Prem Kumar (PW-1), who was also the complainant on

whose statement, Ex.PW1/A, the FIR in question was registered. PW-1

has testified that on 1st February, 2003 at about 12.30 p.m., he was

sitting on their vacant plot while deceased Anil was coming towards

the plot from his house. On the way, Chattar Singh, Ranbir Singh and

Kishan, who were carrying pharsa, lathi and zaili stopped Anil and

questioned him as to why he was interested in purchasing the plot,

when the plot actually belonged to them. They objected and stated that

they would not allow him to purchase the said plot. Anil protested

stating that they had purchased the plot after making payment. Kishan

thereupon commented that Anil should be taught a lesson as he was

making a lot of noise. Simultaneously, Ranbir cried that they should

catch hold of Anil and the issue required no further delay. Kishan and

Ranbir caught hold of Anil and Chattar Singh gave pharsa blow on the

head of Anil because of which he fell down. PW-1 cried „bachao-

bachao‟ (help-help). Upon this, Naveen (PW-3), Sant Ram (PW-2)

and Hari Chand (PW-9) reached the spot. Randhir and Kehar Singh

caught hold of Naveen‟s hand and asserted that Naveen professed that

he was a strong man and they should hold his hands. Leelu (Ajay)

gave „pharsa‟ blow on the left hand of Naveen (PW-3) as a result of

which his index and middle fingers got amputed. Naveen Kumar (PW-

3) tried to run away by freeing his hands but, Leelu (Ajay) gave

„pharsa‟ blow on his head and Kehar Singh also gave a „Lathi‟ blow

on his head. PW-1 tried to save himself, but Kehar Singh had caught

hold of him. Lillu tried to hit PW-1 with „pharsa‟ but he managed to

avoid the blow and the „pharsa‟ hit Kehar Singh on his head. Jhaggar

then gave a „Lathi‟ blow on the head of PW-1. Netarpal and Jhaggar

gave „Lathi‟ and „Zaili‟ blow to Sant Ram (PW-2) on his left upper

arm and head. When Jhaggar attempted another „Lathi‟ blow on Sant

Ram, he managed to escape and „Lathi‟ hit Randhir on his foot. Sant

Ram (PW-2) tried to run away, but Chattar Singh gave a „pharsa‟

blow, which hit him on his right hand near the base of thumb. Lillu

gave a „pharsa‟ blow on the head of Hari Chand (PW-9). PW-1

claimed that they raised alarm „bachao-bachao‟ and in the meantime

the appellants including late Kehar Singh fled from the spot. Prem

Kumar (PW-1) along with Sant Ram (PW-2) took Anil to Orthoplus

Hospital in his car. However, the doctors advised him to take Anil to a

bigger/better hospital. He then took them to Maharaj Agrasen

Hospital, where Anil was medically treated.

7. To avoid repetition, we are not referring to the statements, made

by PWs-2, 3 and 9 on similar lines, detailed and explicit, although they

are not absolutely identical. Versions as given by PWs-1, 2, 3 and 9, it

is apparent are to an extent exacerbated and exaggeration of the actual

occurrence, as it clears and vindicates them from injuries suffered by

the attackers i.e. the other group. What is important and noticeable in

the court deposition of PW-1, are the following facts:-

(i) That the occurrence had taken place at 12.30 p.m. and Anil was

given „pharsa‟ blow on his head by Chattar Singh while Kishan and

Ranbir had caught hold of him. Kishan was carrying a „Zaili‟ and

Ranbir had „Lathi' in his hand.

(ii) Sant Ram (PW-2), Naveen (PW-3) and Hari Chand (PW-9)

reached the spot after the „pharsa‟ blow had been given on the head of

Anil by Chattar Singh.

(iii) Thereafter, Kehar Singh, Randhir, Lillu, Netarpal and Jhaggar

joined in and inflicted injuries by weapons such as Lathi, Pharsa and

Zaili.

(iv) Prem Kumar (PW-1) along Sant Ram (PW-2) took Anil to

Orthoplus Hospital at Najafgarh in his car and as per the advice of the

doctors, Anil was taken to Maharaja Agrasen Hospital, Punjabi Bagh.

PW-1 had driven the car while PW-2 was present in the car and both of

them got Anil admitted in the Maharaja Agrasen Hospital.

8. MLC of Anil, Ex.PW10/A, records that he was brought to the

hospital by Sant Ram (PW-2) on 1st February, 2003 at 2.45 p.m. with

alleged history of assault on the same day by some people of village

Ghumman Hera. It also records presence of Praveen @ Prem Kumar

(PW1) as the other person who had brought the injured to the hospital.

9. Prem Kumar (PW-1) in his cross-examination stated that it took

about 5 to 6 minutes to reach his house and bring the car for taking

Anil to the hospital. They reached Orthoplus Hospital at about 2 p.m.

but he did not remember the time when they left the said hospital. He

reiterated that the occurrence in which Anil was injured had taken

place at 12.30 p.m. Orthoplus Hospital was about 15 kilometers from

the place of occurrence and it took about 45 minutes to reach the said

hospital. PW-1 has in the cross-examination also deposed that:-

"Vinod is son of Satbir. I do not know if Vinod had informed the PCR that occurrence was taking place at 12.38 p.m. I further do not know if PCR vehicle had reached the spot at 12.44 p.m. I further do not know if the PCR vehicle had report (sic- reported) at 1.20 p.m. to the police control room that there is likelihood of quarrel between Sube Singh and Ghisa Ram with respect to a plot."

PW-1 thus accepted that the occurrence i.e. in which Anil was injured

had taken place at 12.30 p.m. as recorded in the FIR.

10. At this stage, it would be important to refer to the statement of

ASI Sompal Singh (PW-12), who was Incharge of PCR Vehicle Zebra-

89. He has deposed that on 1st February, 2003 at about 12.45 p.m. he

received information regarding a quarrel at village Ghumman Hera.

He reached there with his staff and met one Sube Singh, who told him

that "a quarrel took place on account of a plot" (the said assertion is in

past tense). Thereafter, he heard shouts that someone had caught hold

of a person of Sube Singh‟s group. On hearing this, persons belonging

to Sube Singh‟s group ran towards the person, who had been caught

and was apprehended by the other group. (For the sake of

convenience, we will call the other group as Ghisa Ram‟s group). PW-

12 also reached there and saw the two groups fighting using Lathi,

Bhala and Barcha. It is apparent that it was a free fight. He tried to

stop them, but the two groups continued to fight. Somehow, he

managed to quell the clash. He then took the appellants Randhir and

Kehar Singh to Rao Tula Ram Hospital in the PCR vehicle. Other

persons relating to Ghisa Ram‟s group were taken in private cars to

some other hospital. PW-12 informed other PCR vehicles regarding

the incident. ASI Sompal Singh (PW-12) in his cross-examination has

stated that he had reached the spot at 1.10 p.m. and at that time the two

groups were not fighting, but there was tension between the parties.

About 8 to 10 persons were present there. Appellants too were present

and were standing opposite their own house. At about 1.30 p.m., he

heard a member of Sube Singh‟s group calling out that someone from

their group had been caught by Ghisa Ram‟s group. Thereupon, Sube

Singh‟s group ran towards the said spot. Even PW-12 ran alongwith

them towards the spot. About 5 to 7 persons of Ghisa Ram‟s group

were standing there and the occurrence lasted for about 5 to 7 minutes.

PW-12 continuously conveyed messages to the control room.

However, he could not tell/remember the time when he gave the last

message. He also could not give the identity and names of the

members of the two groups. He further deposed that members of the

complainant party i.e. Ghisa Ram‟s group were also armed and had

caused injuries with Lathi. He accepted that he had taken Randhir

Singh and Kehar Singh to the hospital, but he could not state who had

caused injuries. He deposed that the injuries sustained by Ghisa Ram‟s

group were caused by Sube Singh‟s group. He had given a copy of the

log book to the police. PW-12 has accepted that earlier when Sube

Singh spoke to him, he did not possess any weapon.

11. The aforesaid testimony of PW-12 when read with the testimony

of Prem Kumar (PW-1), which we have bifurcated as elucidated above,

establishes that there were two stages in which occurrence/violence

took place. In the first round at about 12.30 p.m on 1 st February, 2003,

Anil had suffered injuries at the hands of Kishan and Ranbir, who had

caught hold of him while Chattar Singh had given a „Pharsa‟ blow

upon which he fell down and shouted „bachao-bachao‟. Thereafter, the

second occurrence had taken place after at about 1.30 p.m. after ASI

Sompal Singh (PW-12) had reached the spot. PW-12 in clear and

categorical terms has stated that at about 12.45 p.m. he had received a

call regarding a quarrel at village Ghumman Hera and was informed by

Sube Singh that quarrel had taken place on account of a plot of land.

PW-12 in the cross-examination has accepted that the two groups were

not fighting when he had reached the spot at about 1.10 p.m. and the

fight started subsequently when one member of the Sube Singh‟s group

was caught by Ghisa Ram‟s group. Thereupon, Sube Singh‟s group

ran towards the said spot, where 5 to 7 members of Ghisa Ram‟s group

were standing. The said occurrence lasted for about 5 to 7 minutes and

in the said occurrence Randhir and Kehar Singh were injured and taken

to Rao Tula Ram Hospital. Other injured persons of Ghisa Ram‟s

group were taken to some other hospital in private cars. The fact that

the occurrence had lasted for about 5 to 7 minutes was accepted by

Hari Chand (PW-9) in his cross-examination and also by Naveen

Kumar (PW-3).

12. The aforesaid facts elucidate that in the second occurrence Ghisa

Ram‟s group retaliated as Chattar Singh, Ranbir and Kishan had

caused head injury to Anil. The cause of dispute was a piece of land

which had been purchased by Sube Singh‟s group. This is an

undisputed fact, accepted and admitted by the learned counsel for the

appellants in the present appeal and even by the State. In the second

round of violence, which took place in the presence of ASI Sompal

Singh (PW-12), appellants Randhir and Kehar Singh had suffered

injuries and they were taken by PW-12 in the PCR van to Rao Tula

Ram Hospital, a fact which stands proved from the MLC of the said

persons marked Ex.PW16/A and 16/B, which were proved by Dr.

Rajeev Kumar (PW-16), Medical Officer, Rao Tula Ram Hospital. He

deposed that Randhir Singh had suffered the following injuries in a

physical assault, which had taken place as per the MLC Ex.PW16/A at

about 1.50 p.m. on 1st February, 2003:-

"1) Abrasion on ulnar side of left wrist.

2) Abrasion on dorsal side of right foot. 3) Abrasion on back of lower third of left leg.

4) Swelling and tenderness of right knee. 5) Tenderness on back of neck. I opined the nature of injuries as grievous."

Injuries were opined as grievous. The said MLC was recorded at 2.30

p.m. X-ray of the two joint/bones was recommended and there is

evidence to show that Randhir had suffered a fracture vide MLC

Exhibit PW-16/A.

13. The MLC (Ex.PW16/B) of Kehar Singh is identical on time etc.

and records the following injuries:-

"1) Approximately 4 inch x 0.5 cm incised wound on mid line of scalp just above forehead. 2)Abrasion on lateral side of upper part of right arm. 3) Tenderness on right shoulder. 4) Abrasion on lower part of posterior side of right leg."

14. During the second occurrence both the groups had used Lathis,

Bhalas and Barcha, though ASI Sompal Singh (PW-12) could not

identify which particular person had caused injuries to other particular

member of the other group. At this stage, we may notice that the time

„1.50 p.m.‟ as recorded in Ex.PW16/A and 16/B was slightly post the

actual occurrence and was estimated. We have on the Trial Court

record the PCR form which records the communications/messages

conveyed by PW-12 to the police control room. The said document is

extremely important and was filed by the prosecution and the

appellants have relied upon the same. We have marked the same as

Exhibit PX. The first call in the control room was received at 12.38

p.m. from Vinod Kumar, who it is stated, is the son of Sube Singh,

informed that in village Ghumman Hera a fight was about to begin, and

Police should be sent. Recording on the PCR form at 1.22 p.m. is that

a fight between Sube Singh and Ghisa Ram was a possibility due to a

dispute relating to a plot of land. The next recording at 1.47 p.m. is

that SHO should be sent and ACP/DCP should be informed. Another

message on or about the same time is that the two parties had started

fighting and the Police force should be sent immediately. At 2.09 p.m.

it was messaged that two persons were being taken to the hospital.

Local police should be sent urgently to the spot. An earlier message at

about 1.58 p.m. records that the PCR had crossed Sapla near

Najafgarh. The aforesaid PCR form shows that the second fight had

taken place between 1.22 and 1.47 p.m. Time of medical examination

mentioned in the MLCs Ex.PW16/A and 16/B is 2.35 p.m. Thus, time

of occurrence i.e. 12.30 p.m. as deposed to by Prem Kumar (PW-1),

Sant Ram (PW-2), Naveen Kumar (PW-3) and Hari Chand (PW-9)

refers to the first round/occurrence. At 12.30 p.m. the first occurrence

had taken place, in which Anil was given "Pharsa" blow on his head,

which led to his death. It is apparent, therefore, that the statements

made by PWs-1, 2, 3 and 9 that there was only one or continuous fight

is wrong and exaggeration possibly to justify their action and the

injuries caused to Sube Singh‟s Group i.e. Randhir Singh and Kehar

Singh. They avoided reference to the second incident as a separate one

as it could be interpreted as retaliation by the Ghisa Ram‟s group.

15. At this stage, it would be relevant to note the time mentioned in

the MLCs of Naveen Kumar (PW-3) and Hari Chand (PW-9),

Ex.PW25/B and 25/A, respectively. Time of arrival has been

mentioned as 2.20 p.m., and 2 p.m. has been stated to be the time of

occurrence. The said MLCs were recorded in Orthoplus Hospital,

Najafgarh. As noticed above, Naveen Kumar (PW-3) had suffered

amputation of his two fingers. ASI Sompal Singh (PW-12) in his

testimony has not mentioned or stated that anyone in the quarrel had

suffered a serious head injury and was bleeding profusely. PW-12 was

at the spot of occurrence at 1.30 p.m., when he saw the two groups

quarrelling and had quelled and stopped the said fight. Randhir Singh,

who had suffered fracture, was taken to the hospital along with Kehar

Singh of Sube Singh‟s group. It is apparent from the statement of PW-

12 that persons of Ghisa Ram‟s group had also suffered injuries and

were taken to the hospital. The injured in the said occurrence would be

Naveen Kumar (PW-3) and Hari Chand (PW-9). Prem Kumar (PW-1)

and Sant Ram (PW-2) were not injured in the second round as they had

earlier left the village to take Anil to the hospital.

16. We have already quoted the cross-examination of PW-1, who

has stated that he did not know if the PCR van had reached the spot at

12.44 p.m. or reported at 1.20 p.m. In case, PW-1 was present at the

spot on the second occasion, he would have certainly noticed the

presence of ASI Sompal Singh (PW-12) alongwith the PCR vehicle,

which cannot be doubted and be under any debate. Similarly, Sant

Ram (PW-2) was not present at the spot on the second occasion when

violence took place after 1.30 p.m., after PW-12 had already reached

the village.

17. PW-2 in his cross-examination has stated that the place of

occurrence was about 10 to 12 yards from his house and was visible.

He had seen Prem Kumar (PW-1) along with deceased Anil at the spot.

Thereafter, Naveen Kumar (PW-3) and Hari Chand (PW-9) reached

the spot. He further claimed that the entire occurrence took place

within 4 to 5 minutes as was accepted by PW-1. Their presence stands

proved by medical records of Maharaja Agrasen Hospital i.e. MLC of

Anil Ex.PW10/A, which refers to PWs-1 and 2. It is, therefore, held

that PW-2 was not present at the time of the second occurrence. PW-1

and PW-2 had first driven injured Anil to Orthoplus Hospital at 2 p.m.

and then on advice, proceeded to Maharaja Agrasen Hospital at

Punjabi Bagh, which was at a distance of about 25 kilometers from

Orthoplus Hospital. They had reached there as per the MLC of Anil

Ex.PW10/A at 2.45 p.m., which is also mentioned as the time of

examination.

18. Prem Kumar (PW-1) and Sant Ram (PW-2) were examined in

Maharaja Agrasen Hospital vide MLCs Mark A and B. It is noticeable

that in the MLC mark A, time of arrival has been mentioned as 2.45

p.m./5.30 p.m. Similarly, time of examination in the MLC mark B of

Sant Ram is stated as 1st February, 2003 at 2.45/5.40 p.m. For reasons

stated below we have disbelieved the injuries allegedly suffered by

Prem Kumar (PW1) and Sant Ram (PW2).

19. Learned Additional Public Prosecutor has vehemently argued

before us that the versions given by Prem Kumar (PW-1), Sant Ram

(PW-2), Naveen Kumar (PW-3) and Hari Chand (PW-9) that there was

only one occurrence or incident of violence, should be accepted as it

was deposed to by the injured witnesses and the statement of ASI

Sompal Singh (PW-12) was an aberration or the only different version

and should be ignored and has to be rejected. For several reasons noted

above, we are not inclined to accept the said version of PWs-1, 2, 3 and

9. Their depositions, being relatives or injured witnesses, no doubt

have to be given due importance and credibility, but we also have to

ensure and rule out the possibility of an exaggeration, cover up, etc.

especially, when there was a fight between the two groups/families. In

the present case, the accused in the FIR in question, who are the

appellants before us, had also suffered injuries. As per the FIR and

statements of PWs-1, 2, 3 and 9, the first occurrence had taken place at

12.30 p.m. and it lasted for about 5 to 6 minutes. MLCs of the

deceased Anil and others when read with testimonies of PW-1 and

PW-2 supports and proves the two occurrence version. ASI Sompal

Singh (PW-12) is an independent person and a police officer not

related or affiliated to any side, who had reached the spot in question

and his contemporious communications and messages to the control

room establish that the second round of violence took place at about

1.30 p.m. The said contemporaneous communications inspire

confidence and are the best evidence, recording the occurrence as it

occurred.

20. In the given circumstances of animosity and ill-will between the

two groups, we would like to not ignore but will place reliance on the

testimony of ASI Sompal Singh (PW-12) as reflective of the true and

precise picture of what had transpired. Necessary inferences thereafter

have to be drawn. Thus, we would like to accept the testimony of Prem

Kumar (PW-1) and Sant Ram (PW-2) that they had seen the first

occurrence in which Anil had suffered head injury resulting in his

death. They were eye witness, but we observe that they immediately

protested and in that process might or might not have suffered a few

injuries. Our aforesaid observation in fact would go to the advantage

and benefit of PWs-1 and 2 when we will deal with the cross appeal

being Crl.A. 616/2011 titled Randhir Singh Vs. Hari Chand and

Others.

21. Learned Additional Public Prosecutor laid emphasis on the

rukka (Exhibit PW-1/A) and it was highlighted that FIR No. 9/2003

was registered at about 6 P.M. and thus the version given by Prem

Kumar (PW-1) in the rukka, which talks of one single incident was

correct and should be accepted. Our attention was drawn to the

findings recorded in the impugned judgment rejecting the testimony of

ASI Sompal Singh (PW-12) as an aberration and being contrary to the

testimony of the injured eye witnesses and others. Thus, PW-12‟s

testimony deserves to be discarded. We do not agree. As per the FIR

and the statement (Exhibit PW-1/A) made by Prem Kumar (PW-1), the

occurrence had taken place at 12.30 P.M. We have also noticed the

statement of Prem Kumar (PW-1) that he and Sant Ram (PW-2) had

initially taken the deceased to Orthoplus Hospital, at about 2 P.M. and

then proceeded to Maharaja Agrasen Hospital where they reached at

2.45 P.M. (see MLC Exhibit PW-10/A). There was considerable time

gap between 2.45 P.M. and 6 P.M., i.e., when the statement of Prem

Kumar (Exhibit PW-1/A) was recorded and rukka was written. It is

apparent that MLCs of Prem Kumar (PW-1) and Sant Ram (PW-2)

mark A and B were written at Maharaja Agrasen Hospital at about 5.30

P.M. and 5.40 P.M. respectively. In the meanwhile, Naveen Kumar

(PW-3) and Hari Chand (PW-9) were taken to Orthoplus Hospital at

2.20 P.M. as per MLCs Exhibits PW-25/B and 25/A respectively.

Thus, by 5 to 5.30 P.M., both Prem Kumar (PW-1) and Sant Ram

(PW-2) were aware of the second occurrence and the fact that Naveen

Kumar (PW-3) and Hari Chand (PW-9) were taken to Orthoplus

Hospital. They were also aware of the injuries, which had been caused

and suffered by Randhir Singh and late Kehar Singh as was apparent

from MLCs (Exhibits PW-16/A and B). A reading of the rukka would

show a deliberate and concerted desire to narrate facts to cover up and

to explain injuries caused to Randhir Singh and late Kehar Singh in

addition to setting out and stating the facts relating to injuries suffered

by Ghisa Ram‟s group, including deceased Anil (Sube Singh‟s group

had also initiated criminal proceedings and cross FIR No. 73/2003,

Police Station J.P. Kalan was registered resulting in Sessions Case No.

53/2009. Hari Chand (PW-9), Sant Ram (PW-2), Prem Kumar (PW-

1), Naveen Kumar (PW-3), Satpal and Sukhchain were prosecuted.

Cross-examination in Sessions Case No. 53/2009 would reveal that

Ghisa Ram‟s group had propounded and cross-examined the witnesses

suggesting that that the initial violence had taken place at 12.30 P.M.

on 1st February, 2003 in which Anil was injured and then there was a

second occurrence).

22. The FIR No. 9/2003 is carefully worded and reflects

considerable application of mind before facts were narrated and spelled

out. This dents the factual narration and is at the cost of transparency

and truthfulness associated with spontaneous and unrehearsed

recordings. If the FIR in question is to be believed, then the appellants

were not only responsible for injuries to deceased Anil and Naveen

(who lost his two fingers of left hand), but also for injuries suffered by

members of the Sube Singh‟s group including fracture suffered by

Randhir Singh and injuries on late Kehar Singh. The FIR clearly

suffers from exaggeration, cover-up and was a mask for the acts of

Ghisa Ram‟s group. The appellants have highlighted suppression of

Qayami DD and belated compliance of Section 157 Cr.P.C. after 2

days.

23. The aforesaid aspects have not been taken due notice of in the

impugned judgment, in which excessive and complete reliance has

been placed upon the testimonies of Prem Kumar (PW-1), Sant Ram

(PW-2), Naveen Kumar (PW-3) and Hari Chand (PW-9) and the

testimony of ASI Sompal Singh (PW-12) has been treated as

unreliable, untrustworthy and as also self contradictory. It has been

observed that Sompal‟s (PW-12) assertion that quarrel had already

taken place before he reached the spot, contradicted his latter

deposition on quarrel at about 1.30-1.45 P.M. i.e., the second quarrel

which took place in the presence of PW-12. The aforesaid error and

observation has occurred as the trial court did not bifurcate and notice

that there were two occurrences and not one single incident or

violence. Trial court did not notice DD Entry No.12A marked

Ex.PW20/A, which was recorded at 12.55 P.M. that quarrel had taken

place. This was with reference to the first quarrel, whereas the MLCs

of the accused Randhir and late Kehar Singh marked Ex.PW16/A and

16/B, respectively, recorded at Rao Tula Ram Hospital at 2.35 P.M.

refer to the second quarrel. Similarly, MLCs of Naveen Kumar (PW-

3) and Hari Chand (PW-9) recorded at 2.20 P.M. at Orthoplus Hospital

marked Ex.PW25/B and 25/A, respectively also refers to the second

quarrel. Failure to decipher and understand that there were two

occurrences has led to the incorrect factual conclusion by the trial court

that ASI Sompal (PW-12) had reached the spot after the entire quarrel

was already over as deceased was shifted to the hospital by then. It is

correct that deceased Anil had been shifted to the hospital by the time

ASI Sompal (PW-12) reached the spot as he was injured in the first

occurrence. But, the second occurrence happened right in front of and

in the presence of ASI Sompal (PW-12).

24. However, the trial court is right in its observation and finding

that there is no interpolation in the „rukka‟ and the name „Randhir‟ has

not been changed to „Ranbir‟ in the initial portion of the „rukka‟.

Trial court has rightly observed in paragraph 34 of the impugned

judgment that overwriting is inconsequential as the name „Ranbir‟

finds mention at a number of places and acts attributed to him have

been clearly elucidated. Thereafter, reference is made to the other

assailant Randhir, which is in the latter part of the „rukka‟.

25. Impartiality and fairness in investigation assumes great

importance in cases of group clashes with cross cases from both sides

as the Court in order to do justice has to identify and ignore

embellishments and exaggerations to unravel the truth. This separation

of grain from the chaff becomes a tedious task when because of hazy

or slanted investigation, the Court finds that the truth is hidden behind

clouded and opaque evidence/material. In a case like the present one,

where there were two occurrences and injuries were suffered by both

sides, there stands a strong possibility and every chance that the

versions given could be partly correct, but not wholly and completely

true. The version reflects the slant and one side of the story.

26. The factum that accused Randhir and late Kehar Singh had

suffered injuries has clearly come out and established from the

testimony of HC Dharamvir (PW-11), who was posted and was on

duty at Rao Tula Ram Hospital on 1st February, 2003. In his cross-

examination, PW-11 has stated that both Randhir Singh and late Kehar

Singh were interrogated in his presence. Earlier PW-11 in the

examination-in-chief deposed that he had informed about admission of

Randhir and late Kehar Singh and preparation of MLCs to police

station Jafarpur Kalan and SI Bhup Singh had prepared „rukka‟ and

handed over the same for registration of a FIR. PW-11 has mentioned

about the statements made by Randhir Singh and late Kehar Singh.

However, SI Bhup Singh (PW-22), the initial investigating officer in

the present FIR has testified in variance. PW-22 accepts that he had

visited Rao Tula Ram Hospital, where Randhir Singh and late Kehar

Singh were admitted and had obtained opinion of the doctor whether

they were fit for statement, but claimed that Kehar Singh had refused

to give statement. PW-22 had initially stated that he had recorded

statement of Randhir Singh, but immediately changed his stance and

stated that Randhir Singh had also refused to give statement in writing.

Therefore, SI Bhup Singh (PW-22) and HC Dharamvir (PW-11) have

contradicted each other. PW-22 has also contradicted, ASI Sompal

Singh (PW-12) by stating that PW-12 had stated that quarrel was going

on when he reached the spot, whereas PW-12 deposed that first round

of quarrel was over and second round of violence started after 15

minutes of his reaching the village. SI Bhup Singh‟s (PW-22)

statement that he had reached the spot at about 1.00-1.30 P.M. is

incorrect as he had certainly not reached the spot till 1.30 P.M. as is

apparent from the PCR communications, which prove that till 1.45-

1.50 P.M., local police had not reached the spot and only ASI Sompal

Singh (PW-12) along with driver of the PCR etc. were present. This is

the reason why PW-22 has accepted that by the time he reached the

spot, the injured had been taken to the hospital, though he had also

claimed that quarrel was taking place between the family of Sube

Singh on the one side and family of Ghisa Ram on the other side. In

the cross-examination, PW-22 accepted that by the time he reached the

spot, the quarrel had already taken place (see page 4 of the examination

of PW-22 in the trial court record).

27. We agree with the trial court that as far as death of Anil is

concerned, offence under Section 302 IPC is made out. This is in spite

of the fact that Anil died subsequently on 7th February, 2003. What is

crystal clear and beyond doubt is that Anil was given a blow on the

head resulting in fracture of the skull with brain matter coming out and

blood oozing. The fact that Anil remained in the hospital in „Coma‟

during this time would not affect the gravity/degree of offence and

convert it into culpable homicide not amounting to murder.

28. The second issue/question is as to who were the perpetrators at

the first occurrence in which deceased Anil was injured? The trial

court has invoked Sections 148 and 149 IPC and convicted all the

seven appellants by applying principle of vicarious liability applicable

to unlawful assembly.

29. We have examined the reasoning given by the trial court, but the

same cannot be accepted and we cannot proceed on the basis as if there

was only one single occurrence. Prem Kumar (PW-1) and Sant Ram

(PW-2), who had taken the deceased Anil with them and Naresh (PW-

6) and Hari Chand (PW-9) have made specific mention of Chattar

Singh, Kishan and Ranbir as the persons, who had caught hold of and

assaulted Anil resulting in the head injury. The said appellants were

attributed with the actual act of violence, be it in form of holding or

catching the deceased or inflicting the blow on his head. Others, it was

stated, were standing on the side etc. and laughed. We accept the

testimonies of Prem Kumar (PW-1), Sant Ram (PW-2), Naresh (PW-6)

and Hari Chand (PW-9) to the extent that they have deposed about

Chattar Singh, Ranbir Singh and Kishan, but reject their testimonies

on presence of the other family members of Sube Singh. This

segregation is required and necessary, as there was a second incident or

occurrence in which Sube Singh‟s group and Ghisa Ram‟s group had

fought with each other, resulting in injuries to both sides. At the time

of the first occurrence when injuries were inflicted on Anil; Chattar

Singh, Ranbir Singh and Kishan were present and had participated.

Presence of others, though deposed to, is not accepted being

exaggeration and wrong implication as the witnesses have tried to mix

up and combine the two occurrences. The prosecution has failed to

satisfactorily discharge burden of proof on involvement of others.

30. We also accept the prosecution case that common intention

under Section 34 IPC would clearly apply to the aforesaid facts and

reject the contention of the appellants Chattar Singh, Ranbir Singh and

Kishan that Section 34 should not be invoked. Prem Kumar (PW-1)

and Sant Ram (PW-2) have deposed that Chattar Singh had given

„Pharsa‟ blow on the head of Anil while Kishan and Ranbir Singh

caught him. It is also apparent that the aforesaid occurrence had taken

place near the plot, which was purchased by Sube Singh‟s group. The

purchase was accepted by Attar Singh (PW-4) as well as the seller

Azad Singh (PW-21). PW-21 belongs to the family of Sube Singh and

has referred to the documents executed by him, Ex.PW4/A to C and

Ex.PW21/A. Appellants Chattar Singh, Kishan and Ranbir Singh in

response to questions put to them under Section 313 Cr.P.C. have

accepted as correct that there was a dispute about the plot and this was

the cause of violence. For the purpose of criminal trial, we are not

required to ascertain whether family members of Ghisa Ram were

trying to encroach a larger area i.e. the case of the appellants, or

whether appellants were trying to stop construction of a wall on the

plot purchased by Ghisa Ram group. This was a matter of civil dispute

and immaterial or inconsequential for the purpose of present appeal in the

context of Section 34 IPC and even under Section 141 read with

Sections 148/149 IPC.

31. Common intention was certainly present as is apparent from the

words spoken by Kishan and Ranbir at the time of the first occurrence

and the manner in which the offence had taken place.

32. On the question of second occurrence, first we have to determine

whether conviction under Sections 308/326/323 read with Section

148/149 IPC is justified. The trial court judgment does not specifically

mention the injuries, which would be covered under Sections 308/323

and 326 IPC. Injuries suffered by Naveen Kumar (PW-3) as per his

deposition and MLC Ex.PW25/B are certainly grave and serious as he

has lost two fingers of the left hand. However, the injuries suffered by

Hari Chand (PW-9) as per his MLC Ex.PW25/A, were not serious or

grave. Dr. Sudip Saha (PW-25) has deposed on the two MLCs and

opined that the injuries suffered by Hari Chand (PW-9) were simple.

He had referred to the wound measuring 6 cms × 3 cms × 2 cms over

the mid occipital area in a vertical fashion. PW-25 has stated that

patient had transient loss of consciousness, but was discharged on the

same day. In cross-examination, PW-25 has stated that the wound

suffered by Hari Chand (PW-9) was neither an incised wound nor a

stab wound. PW-9 was moving his four limbs, but was slightly

drowsy. PW-25 could not state whether the injury was caused by a

blunt weapon. Naveen Kumar (PW-3) as per MLC Ex.PW25/B had a

clean lacerated wound on the left parieto occipital area and clear

lacerated wound on the right parieto occipital area. The size of the

two wounds were 3.5 cms × 2 cms × 1 cm and 3 cms × 2 cms × 1

cm. The index finger of the left hand was chopped out from the base

and there was incomplete amputation of the middle digit of the left

hand, which was amputated under local anaesthesia. The injuries

suffered by PW-3 were grievous. On the said aspect, we have also

taken into consideration statement made by ASI Sompal Singh (PW-

12), who had witnessed the second occurrence.

33. Having considered the entire evidence, we feel that for injuries

suffered by Naveen Kumar (PW-3), Section 326 IPC should be

invoked and for the injuries suffered by Hari Chand (PW-9), Section

323 should be invoked.

34. We have doubt in respect of the injuries suffered in the first

round/occasion by Prem Kumar (PW-1) and Sant Ram (PW-2). The

reason is simple that their MLCs marked A and B refer to time of

treatment as 2.45 P.M. as well as 5.30/5.40 P.M., thus, manifestly

indicating that the MLCs were prepared at 5.30/5.40 P.M. The MLCs

were not proved and have been given mark A and B. Dr. Anil Jindal

(PW-10) no doubt had deposed that Prem Kumar (PW-1) was

medically examined and had abrasions on the occipital region and

dressing was done. PW-2 it is claimed had one CLW on the right hand

scalp haematoma with abrasion was found. Stitching was done. In the

cross-examination, PW-10 accepted that Sant Ram (PW-2) could have

sustained injuries by falling and the same was also true with regard to

the injuries suffered by Prem Kumar (PW-1). Both of them had not

stated as to who were the assailants. He accepted that MLCs mark A

and B were prepared at 5.40 P.M. after consultation with the

Investigating Officer.

35. In view of the aforesaid factual position, we cannot place

reliance on the alleged injuries suffered by PWs-1 and 2, though it is

possible that they may have suffered some abrasions. With regard to

the first occurrence, injuries suffered by PWs-1 and 2 have not been

specifically adverted to and testified in the depositions of PW-1 and

PW-2.

36. One of the issues and contentions, which arise for consideration

is whether the appellants-Chattar Singh, Kishan, Ranbir Singh, Randhir

Singh and Ajay were part of the unlawful assembly along with

deceased Kehar Singh as defined in Section 148 read with Section 141

IPC. On the said aspect, we are inclined to accept the finding of the

trial court invoking Section 148/149 IPC.

37. For securing conviction under Section 149 IPC, essential

ingredients of common object as defined in Section 141 IPC should be

established.

38. Interpreting Clause (3) to Section 141 IPC in Manga @

Mansingh versus State of Uttrakhand, (2013) 7 SCC 629, it has been

held that the expression "or other offence" was not to be read as

ejusdem generis and taking colour from the offences of mischief or

criminal trespass. In other words, the expression "or other offence"

would not be restricted to offences covered by Sections 378 to 462 of

Chapter XVII, as giving the said restrictive meaning would be contrary

to the legislative intent and purpose. Thus, import of principle of

ejusdem generis to Section 141, Clause 3, cannot be accepted. The

word "offence" as defined in Section 40 of IPC was more appropriate

since it denotes a thing, act or omission made punishable with a term

of six months or more under the Code. Thus, the expression "other

offences" used in Section 141, Clause 3, will include and refer to any

of the offences referred to in any part of the provisions of IPC for

which punishment is provided for a term of six months or upwards,

with or without fine. It was accordingly held as under:-

"49. We fail to appreciate as to how simply because the offences mischief or criminal trespass are used preceding the expression "other offence" in Section 141 "Third", it should be taken that such offence would only relate to a minor offence of mischief or trespass and that the expression "other offence" should be restricted only to that extent. As pointed out by us above, the offence of mischief and trespass could also be as grave as that of an offence of murder, for which the punishment of life imprisonment can be imposed as provided for under Sections 438, 449, 450, etc. Therefore, we straightaway hold that the argument of the learned Senior Counsel for the appellants to import the principle of "ejusdem generis" to Section 141 "Third", cannot be accepted.

50. The submission of the learned Senior Counsel cannot also be countenanced by applying Section 40 of the Code, which specifically mentions as to how the term "offence" will have to be construed. In the main clause of the said section it has been clearly set out that the word "offence" denotes a thing made punishable by this Code except the Chapters and sections mentioned in clauses 2 and 3 of the said section. Therefore, going by the main clause of Section 40, the word "offence" since denotes the thing made punishable under the Code, "other offence" mentioned in Section 141 "Third", can only denote offences, which are punishable under any of the provisions of the Code. Therefore, by applying the main clause of Section 40, it can be straightaway held that all offences referred to in any of the provisions of the Code for which the punishment is provided for would automatically fall within the expression "other offence", which has been used in Section 141 "Third".

51. What has been excepted in the main clause of Section 40 are what has been specifically mentioned in clauses 2 and 3 of the said section. As far as clause 2 is concerned, while making

reference to Chapter IV and Chapter V-A, as well as other sections mentioned therein, it states that the word "offence" would denote a thing punishable under the Code, namely, the Penal Code or under any special or local law, which have been defined to mean a law applicable to a particular subject or a law applicable only to a particular part of India. When we read clause 3 of Section 40, Section 141 has been specifically mentioned in the said clause. To understand the purport of the said clause, it will be worthwhile to extract that part of the provision which reads;

"40. ... And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word „offence‟ has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine." It is quite apparent that the said clause in regard to the offences under any special or local law, wherein punishment of imprisonment for a term of six months or upwards with or without fine is prescribed, the meaning assigned in those special or local laws is to be imported while invoking Section 141 or other sections mentioned in the said clause 3 of Section 40.

52. Therefore, a conspectus reading of Section 40 makes the position abundantly clear that for all offences punishable under the Penal Code, the main clause of Section 40 would straightaway apply in which event the expression "other offence" used in Section 141 "Third", will have to be construed as any offence for which punishment is prescribed under the Code. To put it differently, whomsoever is proceeded against for any offence punishable under the provisions of the Penal Code, Section 40 clause 1 would straightaway apply for the purpose of construing what the offence is and when it comes to the question of offence under any other special or local law, the

aid of clauses 2 and 3 will have to be applied for the purpose of construing the offence for which the accused is proceeded against. Therefore, having regard to clause 1 of Section 40 of the Code read along with Section 141 "Third", the argument of the learned Senior Counsel for the appellants will have to be rejected. We are, therefore, of the firm view that only such a construction would be in tune with the purport and intent of the law-makers while defining an unlawful assembly for commission of an offence with a common object, as specified under Section 141 of the Code. In the case on hand, since no special law or local law was attracted and the accused were charged only for the offence under the Penal Code, Section 40(1) gets attracted along with Section 141 "Third" IPC. Having regard to such a construction of ours on Section 141, read along with Section 40 IPC, the offence found proved against the appellants, namely, falling under Section 302 read with Section 149, Section 307 read with Section 149 along with Sections 147 and 148 of the Code for which the conviction and sentence imposed by the court below cannot be found fault with."

39. It is in this context, we have held that we need not examine and

go into the question of criminal trespass etc. for once it is established

that the appellants had assembled with lathis, zaili etc. to perpetuate

and inflict injuries on Ghisa Ram‟s group, clause 3 of Section 141 IPC

would be applicable. We also hold and observe that there were more

than five persons present from Sube Singh‟s group at the time of

second occurrence as has been deposed to by ASI Sompal (PW-12).

The said witness has deposed that 8-10 persons were present from the

Sube Singh‟s group with lathis, zaili, etc. Thereafter, the two groups

clashed. In these circumstances, there cannot be any doubt on the

common object, i.e., to inflict injuries and cause physical harm on

members of Ghisa Ram‟s group. The object was unlawful. The

members of the assembly knew it and were aware that it was likely that

members of the said assembly would indulge in criminal acts or were

likely to commit acts of violence, which could cause grievous or other

injuries to the members of the other group. The fight which took place

was to accomplish the said common object of the assembly or at least

the members knew that injuries were likely.

40. The effect of Section 149 IPC is to render every member of the

unlawful assembly liable for punishment for every offence committed

by one or more of its members provided it is shown that the

incriminating act was done to accomplish the common object of the

unlawful assembly and was within the knowledge of other persons or

was one likely to be committed in the prosecution of the common

object. If the members of the assembly knew or were aware of

likelihood of that particular offence being committed, they would be

liable under Section 149 IPC (see Kuldip Yadav and Others versus

State of Bihar, (2011) 5 SCC 324). Thus, the twin requirements of

Section 148/149 IPC are fully satisfied.

41. In the present case, we do not think there was a mere possibility

of commission of offence as the situation was fairly grave and there

was also clear likelihood of physical violence with members of

different groups carrying dandas, zaili, etc. Phone call had been made

to the police and deposition of ASI Sompal (PW-12) shows that there

was tension and everyone knew that there would be violence and

physical injuries. This is also clear from the contemporaneous

messages conveyed by PW-12 to the control room and his call for

sending police force to quell and stop the violence and bring about calm

and peace (see in this regard Rajendra Shantaram Todankar versus

State of Maharashtra, (2003) 2 SCC 257, State of Punjab versus

Sanjiv Kumar, (2007) 9 SCC 791 and Ramachandran and Others etc.

versus State of Kerala, AIR 2011 SC 3581).

42. The next issue, which arises for consideration is, which of the

appellants were members of the unlawful assembly responsible for

causing injuries to Naveen Kumar (PW-3) and Hari Chand (PW-9) in

the second occurrence. With regard to the second occurrence, we have

no hesitation in accepting that Chattar Singh, Kishan, Ranbir, Ajay @

Leelu and Randir Singh had participated. In fact, learned counsel for

the appellants did not dispute and challenge the presence of Randhir

Singh, Chattar Singh, Kishan Kumar and Ajay. Dispute is raised on the

presence of Netrapal, Jagjit and Ranbir Singh. We do not agree with

the counsel for the appellants that the presence of Ranbir Singh at the

time of second occurrence is debatable. Ranbir Singh is the son of

Sube Singh. His presence at the place of occurrence along with other

family members was normal and natural. It has not been shown that he

was at some other place, though the said alibi was taken. On the aspect

of presence of Netrapal and Jagjit, we think they should be given

benefit of doubt although their names do figure in the FIR. In their

statements under Section 313 Cr.P.C., they had claimed to be present

in Rohtak as Jagjit was participating in a wrestling contest at village

Pakasma. Sukhbir Singh (DW-1) and Baljit Singh (DW-2) have

deposed in their favour. They have testified that Jagjit had participated

in the wrestling competition and had won Rs.1000/- as prize money.

DW-1 was a member of the committee, which had organised the said

wrestling competition on 1st February, 2003 at the fair of Baba

Mangenath. Deposition of DW-1 is fairly descriptive and realistic

though he could not narrate and answer minute and small details as his

deposition was recorded on 20th August, 2010, nearly seven years after

the occurrence. DW-1 was specific and had only mentioned about

appellant-Jagjit and no other person. Examination of his testimony

shows that he was reliable, candid and a rustic villager who had stated

whatever he knew and remembered. Baljit Singh (DW-2) has similarly

deposed and has referred to presence of Jagjit and Netrapal, his

brother. Furthermore, he has referred to the wrestling competition and

participation of Jagjit. Again he did not remember several aspects, but

one cannot be oblivious to the fact that his statement was recorded on

31st August, 2010, nearly seven years after the occurrence.

43. Thus, Jagjit and Netrapal are acquitted. Randhir Singh and Ajay

are also acquitted to the charge of having committed murder of Anil

read with Section 34/149 IPC.

44. On the question of sentence, under Section 302 read with

Section 34 IPC, we maintain the sentence awarded by the trial court to

Chattar Singh, Ranbir and Kishan of imprisonment of life and fine of

Rs.10,000/- each, in default of which, they will have to undergo Simple

Imprisonment of six months. However, the said conviction is under

Section 34 IPC and not read with Section 149 IPC.

45. The last question relates to sentence, which would be awarded to

appellants Chattar Singh, Kishan, Ranbir Singh, Randhir Singh and

Ajay for offence under Section 323 read with Section 149 IPC for

injuries caused to Hari Chand and under Section 326 read with Section

149 IPC for injuries caused to Naveen. The appellants also have to be

sentenced under Section 148 IPC.

46. Chattar Singh, Kishan and Ranbir Singh have been sentenced to

life imprisonment for the offence under Section 302 read with Section

34 IPC for murder of Anil. Primarily, therefore, we are concerned with

the suitable punishment/sentence, which would be awarded to Ajay

and Randhir Singh as both of them were released on bail after filing the

present appeal upon suspension of sentence. Randhir Singh had

already suffered imprisonment of about 2 years, 8 months and 25 days

and Ajay had suffered imprisonment of about 3 years, 3 months and 22

days.

47. Keeping in view the aforesaid facts and ensuring that Randhir

Singh and Ajay do not have to surrender to undergo any further

imprisonment, it is directed as under:-

(i) Appellants Chattar Singh, Kishan, Ranbir Singh, Randhir Singh

and Ajay are sentenced to Rigorous Imprisonment for one year for the

offence under Section 323 read with Section 149 IPC.

(ii) Appellants Chattar Singh, Kishan, Ranbir Singh, Randhir Singh

and Ajay are sentenced to Rigorous Imprisonment of two years for the

offence under Section 326 read with Section 149 IPC and fine of

Rs.10,000/- each, in default of which they shall undergo Simple

Imprisonment for three months. Fine will be paid by Ajay and Randhir

Singh within one month.

(iii) For the offence under Section 148/149 IPC, the appellants-

Chattar Singh, Kishan, Ranbir Singh, Randhir Singh and Ajay shall

undergo Rigorous Imprisonment for one year.

The aforesaid sentences shall run concurrently and the appellants

will be entitled to benefit of Section 428 Cr.P.C.

The appeal is disposed of in the aforesaid terms.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(G.P. MITTAL) JUDGE

MAY 30, 2014 NA/VKR