Delhi High Court

Randhir Singh (In Jc) vs Hari Chand And Others on 30 May, 2014

Author: Sanjiv Khanna

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRIMINAL APPEAL NO. 616/2011

                                        Reserved on : 30th April, 2014
                                        Date of decision: 30th May, 2014


         RANDHIR SINGH (IN JC)

                                                         ..... Appellant
                           Through Mr. Manu Sharma & Mr.Abhir Datt,
                           Advocates.
                           versus

         HARI CHAND AND OTHERS

                                                         ..... Respondents

Through Mr. Ashok Drall, Advocate.

CORAM:

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

SANJIV KHANNA, J.:

Appellant-Randhir Singh has preferred this appeal against acquittal

of Hari Chand, Sant Ram, Prem Kumar @ Praveen, Naveen, Satpal and

Sukhchain, who have been acquitted by the impugned judgment dated 26 th

February, 2011. The said acquittal arises from Sessions Case No. 53/2009

arising out of FIR No. 73/2003, Police Station J.P. Kalan under Section

307/506/34 of the Indian Penal Code, 1860 (IPC, for short).

2. The aforesaid FIR was registered after Randhir Singh and late Kehar

Singh had filed a private complaint before the Additional Chief

Metropolitan Magistrate on 6th March, 2003, marked Exhibit PW-3/A,

relating to the occurrence on 1st February, 2003. In the order dated 24th

July, 2003 passed by the Metropolitan Magistrate it was recorded that FIR

No. 73/2003 had been registered on the basis of the complaint and

investigation was in progress. Before the said date, the complaint had

remained pending consideration and in an earlier order dated 9 th July, 2003

it was noticed that injuries had been inflicted on the present appellant and

his group by members of the respondent group. Reference was made to the

MLCs of Kehar Singh and Randhir Singh. It was also recorded that it was

a cross case, as FIR No. 9/2003 was already registered against the

appellants herein and his group.

3. FIR No. 73/2003 (Exhibit PW-1/B) was registered on 19th July,

2003. Subsequently, upon completion of investigation, charge sheet was

filed for commission of offences under Sections 147, 148, 149, 307, 323,

324, 326, 341, 506 and 120B IPC. The charge sheet was committed for

trial before the Sessions court. One Anil who had died in the occurrence

was arrayed as an accused but the proceedings against him never got

initiated as he had died on 7th February, 2003, i.e., even before the private

complaint dated 6th March, 2003 was filed.

4. It is an accepted and admitted position that the present proceedings

arise out of a cross case and the accused/respondents herein are the

aggrieved party in FIR No. 9/2003, Police Station J.P. Kalan and the

appellant herein Randhir Singh was/is an accused/convict in the said FIR.

Trial in the two charge sheets arising out of the cross cases were held by

the same Sessions court but evidence was separately recorded. Arguments

were addressed in both the cases and separate judgments have been

pronounced. Legal position as elucidated by the Supreme Court in cross

cases, mandates that evidence should be recorded separately in the cross

cases, except to the extent that witnesses of the prosecution which were/are

common can be examined in one case and their evidence be read as

evidence in the other case. However, the cases should be disposed of

simultaneously (see Harjinder Singh versus State of Punjab and Others,

(1985) 1 SCC 422). Further, while pronouncing two separate judgments,

care should be taken that judgment in one's case was/is not based upon

evidence recorded in the other case (see Harjinder Singh (supra), Sudhir

and Others versus State of M.P., (2001) 2 SCC 688 and Kuldip Yadav and

Others versus State of Bihar, (2011) 5 SCC 324). We have proceeded on

the said basis.

5. The prosecution evidence in the present case relies upon ocular

testimonies of Ajay Kumar (PW-2), Randhir Singh (PW-3), Kehar Singh

(PW-5), Sube Singh (PW-6), Chattar Singh (PW-7) and Vinod Kumar

(PW-8). One SI Sompal (Retd.) (PW-12) is also stated to be an eye

witness. Presence of Ajay Kumar (PW-2), Randhir Singh (PW-3), Kehar

Singh (PW-5) and Chattar Singh (PW-7) on the spot at the time of

occurrence is de facto undisputed and cannot be challenged. They were

accused in the cross case relating to the very same occurrence in which

some of the respondent-accused had suffered injuries. On the question of

motive and the cause of the fight between Sube Singh Group (the

complainant in the FIR in question) and Ghisa Ram Group (the

respondents in the present appeal), there is also no dispute or challenge.

The cause was a small plot of land purchased by Ghisa Ram's Group from

Azad Singh (PW-15) measuring 7.8 feet x 117 feet. Azad Singh belonged

to the family of Sube Singh's Group and has deposed with regard to the

said sale vide documents marked Exhibit PW-15/A. In cross-examination

of the witnesses PWs-2, 3, 5 and 7, their presence at the spot as deposed in

examination in chief has not been challenged. On the other hand, it has

been suggested to each of the said witnesses that there was an earlier

occurrence at 12.30 P.M. on 1st February, 2003, when brother/relative of

one of the respondent accused, namely, Anil was coming from his house.

It was alleged that Chattar Singh had hit pharsa on Anil's head, while

Randhir Singh and Kehar Singh had confronted and caught hold of Anil. It

was also suggested that after the said injury to Anil, a telephone call was

made by Vinod Kumar (PW-8) to the police and at about 12.45 P.M. PCR

van reached the spot and enquired. This fact was also deposed by Vinod

Kumar (PW-8), who had called the police from telephone landline No.

25022567 from the house of Kishan.

6. PWs-2, 3, 5 and 7 have deposed that Kehar Singh at about 1.15 P.M.

had gone to the plot to unleash his buffaloes, when he was attacked by the

respondent-accused and this had led to the fight.

7. We are inclined to and agree that there was one initial occurrence at

about 12.30 P.M. after which Vinod Kumar (PW-8) had made a call and

the PCR van reached the spot. We are not in the present case concerned

with what had happened in the first occurrence as the same is not a subject

matter of the charge sheet in the present case and the witnesses for the

prosecution have not deposed on the said aspect. We are only concerned as

to what had happened in the second occurrence at about 1.30 P.M.

8. SI Sompal (PW-12) was posted as ASI in charge PCR Zebra 89 and

on receiving the aforesaid telephone call made by Vinod Kumar (PW-8)

along with driver Head Constable Makhan Lal reached the spot at 1.10

P.M. where they met Sube Singh (PW-6). PW-12 has stated that he was

informed about the dispute relating to plot but that time no quarrel or

fighting was taking place. After some time, he heard a call given by the

Sube Singh's Group that one of them had been held by the Ghisa Ram's

Group. Thereupon, Kehar Singh, Ranbir and 8-10 persons of Sube Singh's

Group, who were standing at the spot with Sube Singh went towards the

place of occurrence/incident. PW-12 followed and saw that Sube Singh

and Ghisa Ram Group were fighting with each other with lathis, pharsa etc.

He intervened and with great difficulty quelled/stopped them. He had

taken the injured Kehar Singh and Ranbir Singh in a PCR van to the

hospital. Local police reached the spot after he had taken the injured to the

hospital. PW-12 in his cross-examination accepted as correct that his

statement was recorded by SI Bhup Singh in FIR No. 9/2003. The said SI

Bhup Singh had appeared as PW-9 in the present case arising out of FIR

No. 73/2003, though he had also appeared in the charge sheet arising out of

FIR No. 9/2003. In his court deposition, Bhup Singh (PW-9) in the present

charge sheet has testified about the quarrel between Ghisa Ram's Group

and Sube Singh's Group but claimed that when he reached the spot no

injured or eye witness could be found as they had been admitted to the

hospital. He went to Agrasen Hospital, Punjabi Bagh where Anil

(deceased) and Prem Kumar one of the respondents-accused in the present

case were admitted. Thereupon, he had recorded statement of Prem Kumar

and FIR No. 9/2003 was registered. Thereafter, he went to Rao Tula Ram

Marg Hospital where Kehar Singh and Randhir Singh were admitted, but

they refused to give statements. The FIR in question was investigated by

Inspector B.P. Yadav (PW-16), who has stated that on 11.8.2003 he was

posted at DIU, South-West District and the investigation of this case was

entrusted under the direction of the senior police officers of the unit. He

had prepared the site plan (Exhibit PW-16/A) at the instance of Vinod

Kumar (PW-8) and had conducted the investigation.

9. There cannot be any doubt or debate on the injuries suffered by

Kehar Singh (PW-5) and Randhir Singh (PW-3). The said two persons

were examined by Dr. Rajeev Kumar (PW-4), Rao Tula Ram Marg

Hospital, Jaffar Pur at about 2.35 P.M. on 1st February, 2003. He has

deposed that Randhir Singh had suffered the following injuries:-

"1. Abrasion on ulnar side of left wrist.

2. Abrasion on dorsal side of right foot.

3. Abrasion on back of lower third (from knee) of left leg.

4. Swelling and tenderness of right knee.

5. Tenderness on back of neck."

X-ray of right leg revealed fracture of patella. The nature of injury was

grievous and the kind of weapon for assault was blunt. The MLC was

marked Exhibit PW-4/A.

10. The MLC of Kehar Singh was marked Exhibit PW-4/B. It was

recorded at 2.35 P.M. and showed an alleged history of physical assault at

1.50 P.M. on the same day. Kehar Singh had the following injuries:-

"1. Approximately 4 inch x 0.5 cm incised one on mid line of scalp just above forehead.

2. Abrasion on lateral side of upper part of right arm.

3. Tenderness of right shoulder.

4. Abrasion on lower part of posterior side of right leg."

11. PW-4 was cross-examined and had stated that they had not recorded

measurement of trivial or small injuries and no measurements in respect of

injury Nos. 1, 2, 3 and 5 was mentioned in MLC Exhibit PW-4/A. It was

accepted that injuries No. 1, 2 and 3 could have been caused by rubbing of

body part against a hard surface. Injury No. 1 could also be caused by a hit

from any side.

12. The aforesaid admission of Kehar Singh and Randhir Singh is also

proved by Head Constable Dharamvir (PW-14), who was posted as duty

Head Constable at RTRM Hospital and had stated that two injured persons,

namely, Kehar Singh and Randhir Singh were admitted to the hospital. He

had admitted that SI Bhup Singh (PW-9) had come to the hospital

subsequently and gave the rukka on which the FIR was registered.

13. This brings us to the so-called injuries suffered by Chattar Singh.

Chattar Singh (PW-7) was not taken to any Hospital by SI Sompal (PW-

12). Chhattar Singh (PW-7) on 1st February, 2003 went to Army Hospital,

R & R, Delhi Cant and his MLC (Exhibit PW-17/A) was recorded. As per

the said MLC, Chattar Singh had the following injuries:-

"1. Contusion left mid forearm extensor aspect.

2. Contusion left leg just below tibial tubercle.

3. Abrasion left ulnar region.

4. Abrasion left upper forearm."

14. The aforesaid MLC was recorded at 1730 hours. As noted above,

the occurrence in question had taken place at about 1.45 P.M. There is

considerable delay in medical examination of Chattar Singh. We have also

noticed injuries recorded therein and do not agree with the contention of

the appellant that the said injuries were grievous as opined by Colonel V.S.

Gurunadh (PW-17), who had examined Chattar Singh (PW-7). It is

apparent that Chattar Singh had suffered minor injuries. Colonel V.S.

Gurunadh (PW-17) in his cross-examination accepted that he was not

aware and did not know about the term "grievous injuries" as defined in

Section 320 IPC. He also accepted that in the MLC measurements of

injuries was not indicated but denied that the injuries were self inflicted.

We note that Chattar Singh (PW-7) was an accused in FIR No. 9/2003 and

had absconded after being admitted in the hospital. The injuries suffered

by Chattar Singh (PW-7) were simple injuries and not grievous. However,

injuries suffered by Randhir Singh (PW-3), i.e., fracture in patella was a

grievous injury. We shall be dealing with the provision of the IPC under

which the respondents should be convicted subsequently, but at this stage

would like to examine the reasoning given by the trial court for acquitting

the respondents.

15. The trial court has not acquitted the respondent-accused on the

ground that they might not have been present or were entitled to benefit of

doubt. The reason given by the trial court in the impugned judgment is that

the respondent-accused had constructed a wall over a plot which they had

purchased from Azad Singh, a family member of Sube Singh's Group. The

trial court did not agree that the respondent-accused tried to grab any

additional land, which was adjoining the land purchased from Azad Singh

and this had resulted in the quarrel. It was further highlighted that the wall

had already been constructed by Ghisa Ram's Group, but Kehar Singh

(PW-5) had wrongly deposed as if the wall was under construction. Trial

court has rejected the testimony of SI Sompal (PW-12) as unreliable and

contradictory. Impugned judgment accepts the contention of the

respondent-accused that injuries on Kehar Singh, Randhir Singh and

Chattar Singh did not get support or correspond to the twin sequence of

events or violence as asserted. Injuries suffered by Randhir Singh was

merely an abrasion and fracture of the knee having been caused by a blunt

object, but not by a fork like object, i.e., zaili. It has been observed that it

was not a case of free fight where the respondent accused were armed with

deadly weapons and had attacked the opposite side. There was no reason

to select only Kehar Singh, Randhir Singh and Chattar Singh as victims

and cause injuries to them and leave others, who remained unhurt.

16. In view of the evidence discussed above, it is not possible to agree

with the findings recorded by the trial court. There is overwhelming

evidence to show that the injuries were caused to Kehar Singh and Randhir

Singh. Chattar Singh possibly had suffered only a few abrasions. Possibly

he had gone to the Army Hospital in the evening and got himself admitted

there in view of the injuries suffered by Anil who ultimately died. We,

therefore, reject and do not take into consideration the injuries suffered by

Chattar Singh, but as far as injuries suffered by Kehar Singh and Randhir

Singh are concerned, there cannot be any doubt or debate on the same.

17. SI Sompal (PW-12) had seen the actual occurrence in which

violence had taken place. He had taken Kehar Singh and Randhir Singh to

the hospital. The said factual position has been affirmed by Head

Constable Dharamvir (PW-14). The injuries suffered by Kehar Singh and

Randhir Singh have been deposed to and highlighted by Dr. Rajeev Kumar

(PW-4), Medical Officer, RRRM Hospital. We do not think these versions

or statements can be doubted whatsoever.

18. The next and difficult question which arises for consideration is

which of the appellants were responsible and who were present at the time

of occurrence. We are inclined to grant benefit of doubt to Sant Ram and

Prem Kumar. They had taken the deceased-Anil to the hospital and thus

they were not present at the place of occurrence at 1.30 P.M. On the

presence of Hari Chand and Naveen, there cannot be any doubt or debate,

as they had received injuries during the said occurrence. On the question

of involvement of Satpal and Sukhchain, we would accept the depositions

of Ajay Kumar (PW-2), Randhir Singh (PW-3), Kehar Singh (PW-5) and

Chhattar Singh (PW-7) keeping in view the fact that it is a case of group

fight. The fact that several persons from Ghisa Ram Group were involved

has been deposed to and affirmed by SI Sompal (PW-12) also. This rules

out false implication of Satpal and Sukhchain of Ghisa Ram's Group on

their presence, instead of some others, who belonged to Ghisa Ram's

Group. Two would be an abnormal and unnaturally low number to accept,

given the nature of fight and injuries inflicted on both sides. The presence

of Satpal and Sukhchain is normal and natural being members of the Ghisa

Ram's Group and living in the same village where the first occurrence had

taken place at 12.30 P.M. resulting in head injury to Anil and the second

occurrence was more in nature of retaliation.

19. The next question relates to the offences, which have been

committed by Hari Chand, Naveen, Satpal and Sukhchain. We do not

think Section 307 or 506 IPC can be invoked in the present case. Injuries

suffered by Kehar Singh were simple and, therefore, would be covered by

Section 323 read with Section 34 IPC and the injuries suffered by Randhir

Singh, which include fracture would be covered by Section 325 IPC read

with Section 34 IPC. Common intention of the said respondents is clearly

established and proved beyond doubt as the occurrence had taken place due

to the inter se differences on plot of land etc. It was an intentional fight

with both groups being armed and wanting to beat up and cause injuries to

the members of the other group. We would not like to invoke Section 141

read with Sections 148 and 149 IPC. Number of convicted accused in the

present case is 4 and it cannot be said with certainty that 5 or more persons

were present, for more persons would have been implicated in case they

were present. There is distinction between common intention and common

object. The former denotes action in concert and necessarily postulates

existence of a prearranged plan implying a prior meeting of minds, while

the latter does not necessarily require proof of prior meeting of minds or

pre concert. In spite of the aforesaid difference, the sections do overlap.

Referring to the aforesaid provisions in Mrinal Das and Others Vs. Sate of

Tripura, (2011) 9 SCC 479, it has been observed:-

"74. There is no bar in convicting the accused under substantive section read with Section 34 if the evidence discloses commission of an offence in furtherance of the common intention of them all. It is also settled position that in order to convict a person vicariously liable under Section 34 or Section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts in order to apply Section 34, apart from the fact that there should be two or more accused. Two facts must be established, namely, (a) common intention, (b) participation of accused in the commission of an offence. It requires a prearranged plan and presupposes prior concept. Therefore, there must be prior meeting of minds. It can also be developed on the spur of the moment but there must be prearrangement or premeditated concept.

75. x x x x x x x

76. We have already pointed out that in order to seek the aid of Section 34 IPC, it is not necessary that individual act of the accused persons has to be proved by the prosecution by direct evidence. Again, as mentioned above, common intention has to be inferred from proved facts and circumstances and once there exists common intention, mere presence of the accused persons among the assailants would be sufficient proof of their participation in the offence. We agree with the conclusion of the High Court that the trial court failed to explain or adduce sufficient reasons as to why the other part of the evidence that the accused persons named by the approver were found present in the place of occurrence could not be believed for the purpose of invoking Section 34 when two or more eyewitnesses corroborated the testimony of the approver (PW 6) specifically naming six accused persons including the two convicted appellants.

77. The existence of common intention amongst the participants in the crime is the essential element for application of Section 34 and it is not necessary that the acts of several persons charged with the commission of an offence jointly must be the same or identically similar. We have already pointed out from the evidence of eyewitnesses as well as the approver (PW 6) that one Uttam Shil (A-8) was deployed at the place of meeting at Santinagar for the purpose of giving intimation to other accused persons about the movement of the deceased. It is also seen from the evidence that one more accused was stationed on the shore of the river near Bagan Bazar. It is also seen from the evidence that after the meeting, when the boat carrying Tapan Chakraborty and other eyewitnesses was about to reach Bagan Bazar shore, accused Anil Das (A-1) who was deployed there suddenly left towards Bagan Bazar and within few minutes 10 accused persons rushed to the boat from Bagan Bazar. Thereafter, the occurrence took place. From the materials placed by

the prosecution, particularly, from the eyewitnesses, the common intention can be inferred among the accused persons including the six persons identified by the eyewitnesses."

20. In Mano Dutt and Another Vs. State of Uttar Pradesh, (2012) 4

SCC 79, the Supreme Court dealt with case of a group fight and the

question involved application of Section 34 viz. Sections 148/149 IPC after

examination of the case law, it was observed that plea of self defence

cannot be raised. Applying Section 34 IPC to the facts of the said case, it

was held:-

"44. Even where there are less than five persons who are accused, but the facts and the evidence of the case is convincing as in the present case, where the accused had returned to the place of occurrence with complete preparedness and after giving lalkar had attacked the deceased there, they have to be held liable for commission of the crime. (Refer Kartar Singh v. State of Punjab [AIR 1961 SC 1787 : (1961) 2 Cri LJ 853] .

45. The learned counsel for the respondent State also relied upon the judgment in Yunis v. State of M.P.[(2003) 1 SCC 425 : 2003 SCC (Cri) 341] to contend that an overt act on the part of one of the accused is immaterial when his presence, as part of the unlawful assembly, is established. This case was for an offence under Sections 302/149 IPC and, therefore, would not squarely apply to the present case as it has been held by the Court that the accused was not constituting an unlawful assembly of five or more persons. However, it cannot be ignored that the extent of participation, even in a case of common intention covered under Section 34 IPC would not depend on the extent of overt act. If all the accused have committed the offence with common intention and inflicted

injuries upon the deceased in a preplanned manner, the provisions of Section 34 would be applicable to all."

21. The aforesaid decisions support the conclusion reached by us. Thus,

the respondents Hari Chand, Naveen, Satpal and Sukhchain are convicted

under Section 323 read with Section 34 IPC for injuries to Kehar Singh and

under Section 325 read with Section 34 IPC for injuries suffered by Randhir

Singh. Appeal against acquittal of Prem Kumar and Sant Ram is dismissed.

22. On the question of sentence, normally the respondents Hari Chand,

Naveen, Satpal and Sukhchain should be directed to undergo rigorous

imprisonment of some duration. However, there are factors which prompt and

impel us to consider whether benefit of Probation of Offenders Act, 1958

should be granted. The order on the point of sentence will be pronounced

subsequently, after hearing both sides. In the meanwhile, report in terms of

Section 4 of the Probation of Offenders Act, 1958 from Probation Officer in