Punjab-Haryana High Court
Dharmender vs State Of Haryana on 29 November, 2022
CRA-S-300-SB-2004 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
SR. No.337
CRA-S-300-SB-2004 (O&M)
Reserved on 24.11.2022
Pronounced on:29.11.2022
Dharmender
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE N.S. SHEKHAWAT
Present: Mr. Narinder Singh, Advocate,
for the appellant.
Ms. Sheenu Sura, DAG, Haryana.
Mr. D.S. Randhawa, Advocate,
for respondent No.2.
N.S. SHEKHAWAT, J.
The instant appeal is directed against the judgment of
conviction and order of sentence dated 12.01.2004 passed by the learned
Sessions Judge, Narnaul, whereby the appellant had been convicted under
Section 307 IPC and sentenced to undergo rigorous imprisonment for a
period of seven years and to pay a fine of Rs.1,000/- and in default of
payment of fine, to further undergo rigorous imprisonment for three months.
Brief facts of the case are that the FIR in the instant case was
got registered by Devender Singh S/o Amar Singh, who stated that he was
doing the agricultural work. On 14.09.2002, at about 7.00 p.m., he along
with his uncle Sube Singh was standing in front of the shop of Lala Ram,
Barber, situated in the village and when his sister Anita reached in the street
near the Paras, Dharmender @ Kalia son of Mahender Singh (the appellant)
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resident of the same village, came there from the back side with his tractor
and hit her while driving the tractor in a rash and negligent manner. In
order to save herself, his sister Anita had come close to the wall of the
house of Ram Singh Bheel, still accused Dharmender had struck his tractor
from her back side and both the tyres of the tractor had run over Anita and
she sustained multiple injuries on her abdomen and chest. Accused-
appellant Dharmender left the spot immediately along with his tractor and
the complainant, his uncle Sube Singh and his father Amar Singh took the
injured Anita to Community Health Centre, Mahendergarh, after arranging a
vehicle. After providing her first aid, the doctor referred her to PGIMS,
Rohtak. On the basis of the statement made by Devender, the FIR was
initially registered under Sections 279 and 337 IPC. Later on, the statement
of injured Anita was recorded on 23.09.2002, after she was declared fit to
make the statement and it transpired therefrom that the case under 307 IPC
was made out against the appellant/accused. Thereafter, the investigation of
the case was conducted by Krishan Kumar, ASI and the Deputy
Superintendent of Police, Mahendergarh also recommended the addition of
the offence under Section 307 IPC.
After the presentation of challan, the charge under Section 307
IPC was ordered to be framed against the present appellant and to prove the
charge, the prosecution examined 11 witnesses in all.
PW-1 Dr. Gajraj Singh medico legally examined Anita, injured
on 14.09.2002 and found that the general condition of the patient was poor,
her pulse was 92 per minute feeble, B.P. was 70/50 mmHg, vitals were not
stable and he found the following injury on her person:-
"Multiple abrasions of variable sizes with a tyre mark
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bruise 8cm wide was present on right side of the chest
laterally and anteriorly lower 1/3rd region. Red in colour."
He had sent ruqa Ex. PB to Police Station, Mahendergarh and referred the
patient to PGIMS, Rohtak for further management. The prosecution
examined PW-2 Dr. Rajesh Godara, Consultant, Department of Surgery,
PGIMS, Rohtak. The investigation was done and injury was found on the
abdomen and chest. The injured Anita was operated on 15.09.2002 and on
exploration, there were two litres of blood in peritoneal cavity with
amputation of spleen and shattering of left lobe of liver. The spleen was
removed and the liver injury was repaired. She was discharged on
28.09.2002 in a stable condition. The prosecution examined PW-3 Bhim
Singh ASI, who had partly conducted the investigation. Still further, the
prosecution examined PW-6 Krishan Kumar ASI, who also investigated
partly and ordered to add the offence under Section 307 IPC. The
prosecution further examined PW-7 Devender, who stated that at about
6.30/7.00 p.m. on 14.09.2002, he was standing near the shop of Lala Ram,
Barber with his uncle Sube Singh. His sister Anita was going from their
house to the nohra with the meals of her father. When his sister Anita was
near the wall of house of Ram Singh Bheel, accused-appellant Dharmender
@ Kalia came there with his tractor. He had hit his sister at her back side
with the tractor. After hitting, he reversed the tractor and with the intention
to kill Anita, he had hit her again. He and his uncle Sube Singh rushed to
the spot to rescue Anita. However, the appellant escaped with his tractor.
Anita had suffered injuries on her chest and she was shifted to CHC,
Mahehdergarh. After the first aid, she was referred to PGIMS, Rohtak. The
said witness was duly confronted with his earlier statement. Even in his
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initial statement, he had not told the police that the tractor was reversed
after hitting his sister and with a view to kill his sister, he again came
forward. The prosecution further examined PW-8 Anita, who deposed on
similar lines. However, she added that Dharmender @ Kalia, appellant, had
been teasing her earlier also. He had been uttering obscene words to her,
whenever he came across her on the passage. On one occasion, at about
8.00 p.m., when she was returning home, he caught her with an intention to
outrage her modesty. She gave him a slap, however, she did not tell her
parents in this regard for the fear of disgrace. On an earlier occasion also,
he tried to kill her by hitting her with a tractor and she had escaped. He,
however, threatened her that he would kill her whenever he got an occasion.
She did not tell her parents in this regard, fearing the quarrel between the
two families. The prosecution further examined PW-9, Dr. Vivek Girotra,
P.G. student, General Surgery, PGIMS, Rohtak, who had obtained the
opinion with regard to the fitness of the injured. The prosecution further
examined PW-10 Mahesh Kumar, Sub-Inspector, who deposed that he had
recorded the formal FIR Ex.PH. The prosecution also examined PW-11
Sumer Singh, who conducted the initial investigation. On receipt of the
information regarding admission of the injured in the hospital, he went to
Police Station, Mahendergarh on 15.09.2002 and obtained medical ruqa and
MLR of Anita. He went to PGIMS, Rohtak and Anita was declared to be
unfit to make a statement. Consequently, he recorded the statement (Ex.PF)
of Devender S/o Amar Singh, the complainant, and made his endorsement
on the said statement and sent the same for registration of the case. He also
inspected the spot and prepared a rough site plan of the place of occurrence
and also recorded the statements of various witnesses.
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The entire evidence led by the prosecution was put to the
accused. In his statement under Section 313 Cr.P.C., he pleaded false
implication due to enmity. He did not lead any evidence in support of his
case and the case was finally heard by the Court of learned Sessions Judge,
Narnaul.
After hearing the counsel for both the parties and going
through the record of the case, the learned trial Court concluded that the
prosecution has successfully proved its case, bringing home the guilt against
the accused/appellant. Accordingly, accused/appellant was convicted and
sentenced as noted above.
Hence, the present appeal.
Learned counsel appearing for the appellant submitted that the
appellant has been falsely implicated in the instant case. It was alleged that
the tractor had run over the injured Anita and after reversing it, the appellant
tried to hit her for the second time. However, the said version has been
belied by the medical evidence, which shows single tyre mark measuring 8
cm wide on the right side of the chest of the injured. Still further, PW-7
Devender had not even witnessed the occurrence. He allegedly shifted the
injured to the CHC, Mahendergarh on 14.09.2002 and the police station was
just opposite the hospital, still he did not report the matter to the police.
Still further, even in the records, he was not mentioned as the person who
shifted the injured to the hospital. Apart from that, the said witness had
made considerable improvement in his testimony and was duly confronted
with the same. Further, learned counsel appearing for the appellant has
taken this Court through the statements of PW-7 Devender
and PW-8 Anita and submitted that there are material contradictions
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between the statements of the said witnesses and both the statements could
not mutually co-exist. Still further, learned counsel also submitted that a
simple case of accident has been converted into a case of attempt to murder
and the story of prosecution is liable to be disbelieved.
The submissions made by learned counsel for the appellant
have been vehemently opposed by the learned State counsel. Learned
counsel submitted that the impugned judgment of conviction and order of
sentence are based on due appreciation of evidence and the settled law. She
further submitted that the impugned judgment of conviction and the order of
sentence are liable to be upheld by this Court.
At this stage, it requires mention that the learned counsel for
the complainant/injured submits that the matter has been compromised
between the parties with the intervention of the Panchayat and respectable
persons of the village and both the families were living peacefully for the
last 20 years. He has no objection in case the appellant is ordered to be
acquitted on the basis of the compromise or some other appropriate order is
passed by this Court in view of the compromise between the parties.
This Court has heard the learned counsel for the parties and
perused the case file minutely.
Learned trial Court has rightly observed that PW-7 Devender
and PW-8 Anita have made considerable and material improvements in
their respective testimonies, however, this improvement does not cause any
damage to the basic structure of the case and does not render the
prosecution case to be doubtful. The testimonies of PW-7 Devender and
PW-8 Anita are to be examined carefully in the light of the other attending
circumstances. The initial case set up by PW-7 Devender was that his sister
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Anita was very close to the wall of the house of Ram Singh Bheel and to
avoid hitting by the tractor, she had been standing on one side near the wall
of the house of Ram Singh Bheel. Still further, the appellant drove his
tractor in a rash and negligent manner and had hit Anita on her back. While
appearing as PW-7, he tried to improve his version by adding that the
appellant had reversed the tractor and had hit Anita on her back. However,
he was duly confronted with his earlier statement made by him during the
course of investigation. However, there is one more aspect of the matter,
which would establish that the offence under Section 307 IPC is made out
against the present appellant. The injured Anita had stated in her initial
statement itself under Section 161 Cr.P.C. that accused/appellant
Dharmender had hit his tractor with an intention to kill her. Even prior to
this, he had been teasing her and had used objectionable words for her. At
about 8 O' clock in the night, she was returning home and he had caught her
forcibly and she had slapped him. She did not disclose to anyone to save
the honour of the family and to avoid further enmity between the families.
Similarly, while appearing as PW-8, Anita clearly stated that accused-
appellant Dharmender @ Kalia had been teasing her earlier also and had
been uttering obscene words to her, whenever he came across her on the
passage. At one occasion, she was returning home at about 8.00 p.m. and he
had caught her with an intention to outrage her modesty, she gave him slap
also. She did not tell her parents in this regard for the fear of disgrace. On
earlier occasion also, the appellant had tried to kill the injured Anita, but she
saved herself by rushing on one side.
The statements of the above-said witnesses are duly
corroborated by the medical evidence as well as the investigation, which
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was conducted by the local police. PW-2 Dr. Rajesh Godara, Consultant,
Department of Surgery, PGIMS, Rohtak, was examined by the prosecution,
who examined and operated her on 15.09.2002. The said witness clearly
stated that on exploration, there were two liters of blood in the peritoneal
cavity and the injured had suffered serious injuries on her abdomen and
chest. There was amputation of spleen and shattering of left lobe of liver.
The spleen was removed and the liver injury was repaired. However, she
was discharged on 28.09.2002 in a stable condition. Even during the course
of investigation, the offence under Section 307 IPC was made out against
the appellant under Section 307 IPC, which is evident from the testimonies
of PW-6 Krishan Kumar, ASI and PW-11 Sumer Singh, ASI. Thus, it is
apparent that the learned trial court has rightly convicted the appellant under
section 307 IPC.
Learned counsel for the appellant has submitted that the
incident is of the year 2002 and the appellant has suffered the agony of the
trial/appeal for the last about 20 years. Learned counsel also submitted that
he was granted the concession of suspension of sentence by this Court vide
order dated 20.08.2004 and he never misused the said concession. Learned
counsel further submitted that at the time of his conviction on 12.01.2004,
he was aged about 22 years and is the sole bread winner of the family and
has to take care of the entire family and is also not involved in any other
case. Learned counsel also referred to the custody certificate and stated that
he has undergone more than six months of actual custody. The custody
certificate has been filed by learned State counsel and it also shows that the
appellant had undergone more than six months of actual custody. Learned
counsel for the appellant has prayed for a lenient view of the matter and
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urged for reduction of the sentence imposed on the appellant. He also
submitted that the matter has already been compromised between the
appellant and the injured Anita and compromise deed has already been
placed on the file as Annexures A-1 and A-2. Learned counsel for the
appellant has also relied upon the judgment of Hon'ble the Supreme Court
in the case of "Gulab Das and others vs. State of M.P., 2011(10), SCC
765". He also relied upon the judgment passed by the Co-ordinate Benches
of this Court in case titled as "Sukhdev Singh @ Sukha Vs. State of
Punjab, 2019(4) R.C.R (Criminal) 760" and "Inderjit @ Inder vs. State
of U.T., 2011 (1) R.C.R. (Criminal), 234". In the matter of Gulab Das
(supra), the Hon'ble Supreme Court upheld the order of conviction recorded
by the learned trial Court, however, the sentence awarded to the appellants
was reduced to the period already undergone by them. Even the conviction
in the said case was under Section 307 IPC and the Hon'ble Supreme Court
had not allowed the parties to compound the offence under Section 307 IPC,
but the sentence was reduced to the period already undergone by the
appellants. Even the Co-ordinate Benches of this Court have held to the
similar effect in the judgment cited by the learned counsel for the appellant.
Thus, keeping in view of the above-said facts and
circumstances of the case as well as in view of the ratio laid down by
Hon'ble the Supreme Court and this Court in the above referred judgments,
this Court is of the considered view that it is just and expedient to reduce
the sentence of the appellant to the period already undergone by him, while
upholding his conviction.
In view of the above, the present appeal is partly allowed. The
impugned judgment of conviction dated 12.01.2004 passed by the learned
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Sessions Judge, Narnaul is upheld, however his sentence is ordered to be
reduced to the period already undergone by him.
With the above modification, the instant criminal appeal stands
partly allowed, to the extent indicated above. Pending application(s), if any,
shall also stand disposed of.
(N.S. SHEKHAWAT)
29.11.2022 JUDGE
mks
Whether Speaking/Reasoned: YES / NO
Whether Reportable: YES / NO
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