Gajanand & Ors vs St Of Hry
2022 Latest Caselaw 10467 P&H

            CRA-S-2217-SB-2005                               -1-


IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

    1.                       CRA-S-2217-SB-2005 (O&M)
                             Date of decision : September 6th, 2022
                            ...

    Gajanand and others
                                             ................Appellants

                             vs.

    State of Haryana
                                             .................Respondent


    2.                       CRA-S-78-SB-2006 (O&M)
                            ...
    Manoj
                                             ................Appellant

                             vs.

    State of Haryana
                                             .................Respondent


    Coram: Hon'ble Mr. Justice H. S. Madaan


    Present: Mr.Vivek Khatri, Advocate assisted by
             Ms. Harleen Ahluwalia, Advocate and
             Mr. Sushil Bhardwaj, Advocate for appellants No. 1, 3 and
             4 in CRA-S-2217-SB-2005
            (appellant no.1 Ganjanand since deceased and appeal pursued
            by his son Sandeep Sharma) and as
            amicus curiae for appellant No.2 in CRA-S-2217-SB-2005
            and for the appellants in CRA-S-78-SB-2006

            Mr. Vijesh Sharma, Additional Advocate General,
            Haryana.

                             ...


    H. S. Madaan, J.

1. Vide this judgment, I intend to dispose of two appeals,

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bearing CRA-S-2217-SB-2005, filed on behalf of Gajanand, Ram

Charan, Vinod and Jaipal, with Gajanand having expired, however,

appeal filed by him being pursued by his son Sandeep Sharma and

CRA-S-78-SB-2006 filed on behalf of Manoj, as both these two

appeals have been filed against the same judgment of conviction and

sentence, passed against the accused-appellants.

2. Briefly stated, facts of the case, as per the prosecution

story are that, on 24.5.2003, on receipt of a VT message from General

Hospital, Bhiwani, with regard to admission of injured Chhotu Ram

son of Puran Singh, Hari Krishan son of Shri Dutt and Sudama son of

Anant Ram, all residents of Sirsa Gogra, there HC Subhash Chander,

from Police Post Kharak Kalan, went to the said hospital and

recorded statement of injured Chhotu Ram as Exhibit PA. Inter alia in

the statement, complainant - injured stated that on that very day i.e.

24.5.2003, at about 11-11.30 a.m., while he was going to provide

water to his cattle tethered in a shed, on the way he came across his

cousin Hari Krishan. On seeing them, Gajanand, Jaipal and Ram

Charan all sons of Mani Ram, Manoj son of Gajanand, Ishwar son of

Hukam Chand and Vinod son of Jaipal came there from the house of

Ram Charan. All of them were armed with lathis and farsies.

Gajanand having a lathi raised a lalkara and thereafter gave a lathi

blow on the knee of Hari Krishan, whereas Ram Charan gave a farsi

blow on left foot of the complainant, Jai Pal gave a a farsi blow on

the head of Hari Krishan. In the meanwhile, Sudama son of Anant

Ram-grand son of complainant came there. Manoj inflicted a farsi

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blow on his head, as a result of which Sudama fell down. Ishwar gave

a lathi blow to the Hari Krishan hitting him on the back. He further

gave a blow with lathi on the right knee of Hari Krishan. Vinod gave

a lathi blow, hitting Hari Krishan on his right hand fingers, whereas

Gajanand gave one more lathi blow on the back of Sudama, while he

was lying on the ground. In the meanwhile, Mahabir and Rajender

residents of Kharak Kalan and Mahesh son of Hukam Chand came

there. All three of them were having swords. They were accompanied

by 6-7 other boys, who were known to the complainant. They

remarked that the complainant party would not be spared on that day.

The complainant party raised alarm upon which his cousin Sri Dutt,

his son Pawan Kumar alongwith other persons arrived at the spot and

on their arrival, the accused ran away with their respective weapons.

However, while leaving the spot, they threatened to kill the

complainant party in future.

3. After recording such statement of the complainant as

Exhibit PA, HC Subhash Chander put his endorsement thereon,

sending ruqa to the Police Station, on the basis of which formal FIR

Exhibit PA/1 was recorded at Police Station Sadar, Bhiwani. The

investigation in this case was marked to ASI Rohtash Singh. The

Investigating Officer went to the place of incident and prepared

rough site plan thereof as Exhibit PK. He recorded statements of

witnesses. The accused were arrested in this case.

4. After completion of investigation and other formalities,

challan against accused Manoj, Rajender, Mahender, Gajanand and

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Ram Charan, was prepared and filed in the Court of Illaqa

Magistrate, Bhiwani. Learned Magistrate supplied copies of

documents relied upon in the challan to the accused free of costs as

provided under Section 207 Cr.P.C., and then finding that offence

under Section 307 IPC was exclusively triable by the Court of

Sessions, vide his order committed the case to the Court of Sessions,

from where it was assigned to Additional Sessions Judge, Bhiwani.

On receipt of the case in his Court, learned Additional Sessions

Judge, Bhiwani, framed formal charge against the accused before

him, to which the accused pleaded not guilty and case was fixed for

evidence of the prosecution.

5. After recording testimony of PW Chhotu Ram, an

application under Section 319 Cr.P.C. was filed on behalf of the State

for summoning of additional accused. Accordingly, the application

was accepted and Jaipal, Vinod and Mahabir, who had not been

challaned by the police earlier, were summoned by the Court as

additional accused to face trial alongwith the accused already

challaned. After the additional accused had put in appearance fresh

charges for offences under Sections 148 IPC and 323/307/506 IPC

read with Section 149 IPC was framed against the accused, to which

they pleaded not guilty and claimed trial and the case was fixed for

evidence of the prosecution.

6. During the course of prosecution evidence, the

prosecution examined the following witnesses:-

PW-1 Chhotu Ram - injured/complainant and PW-2 Hari

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Krishan & PW-6 Sudama (both of them also received injuries in the

incident), provided the ocular version of the incident deposing in

consonance with the prosecution story.

PW-3 Dr. Anil Kumar Sharma, stated that he had

radiologically examined injured PW Sudama, PW- Hari Krishan and

vide his report Exhibit PB, he had observed a depressed fracture on

the right frontal bone on the person of PW Sudama, whereas in terms

of report of Hari Krishan Exhibit PC, his X-Ray examination did not

reveal any fracture.

PW-4 SI Ajaib Singh , who on receipt of ruqa had

recorded formal FIR Exhibit PA/1 at Police Sttion Sadar Bhiwani,

deposed in that regard.

PW-5 ASI Zile Singh stated that he had recorded statement of

Kanwarpal, Draughtsman.

PW-7 Dr. Rajender Rai, stated that he had medico legally

examined Sudama on 24.5.2003 and had observed following injuries

on his person :-

1. Clean cut incised wound, hair root cut,

spindle shaped, margins regular, size 6 c.m. x 4

c.m. brain deep with depressed fracture. This

wound was divided into two parts by a flap of

scalp of size 4 c.m. long. Wound was placed

obliquely, upper and lies near the mid line and

the lower end lies 4 c.m. lateral to mid line.

Lower end was 6 c.m. above right eye brow.

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Wound was placed in right frontal region.

Bleeding was present.

The nature of injury was declared dangerous to

life and type of weapon used was sharp and

probable duration of injury was less than 12

hours.

He proved MLR of Sudama as Exhibit PD. He further stated that he

had medico legally examined injured Hari Krishan on that very day

and had observed following injuries on his person :-

1. Lacerated wound over scalp, left temple,

margin irregular, 4 c.m. x .8 c.m. into bone

deep, 7 c.m. above pinna and 7 c.m. behind the

hair line oblique. Bleeding was present. X ray

of the part and surgical opinion was advised.

2. Swelling on left zygomatic prominance

was present. No crapitus was present. Size was

3 c.m. x 3 c.m. Colour changes were not

present. Tenderness was present. X-ray of the

part was advised.

3. Injury on little finger right side was

present. attitude, movements were restricted

and painful. No external marks of injury were

seen. X-ray of the part and ortho opinion was

advised.

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4. A contused abrasion over lateral side of

right knee joint of the size of 3 c.m. x 3 c.m.

was present. Red colour was present.

Tenderness was present. Slight restriction of

movements was present. X-ray of the part and

ortho opinion was advised.

The weapon used for injuries was opined as blunt and the probable

duration was stated to be within 12 hours. He proved copy of MLR as

Exhibit PE. He further sated that on that very day he had examined

Chhotu Ram son of Puran and found the following injury:-

1. Penetrating wound of size .5x.5 c.m. into

muscle deep was present. Bleeding was present

over lower leg on front.

The nature of injury was declared simple and the kind of weapon

used was opined as penetrating type. The probable duration was

given as within 12 hours. He sent ruqqa Ex.PG to police station. He

gave opinion Ex.PH/1 that injured was fit to make statement, on

police application Ex.PH. On 17.8.2003 on police request Ex.PJ, he

gave opinion Ex.PJ/1 that injury described in MLR Ex.PD of Sudama

was possible with the weapon Ex.P1 (farsa) shown to him. During his

cross examination, he testified that at the time of examination

Sudama was conscious and well oriented. He further stated that

injury on the person of Sudama was declared dangerous to life after

observing the condition of the wound. He proved copy of MLR of

Sudama as Exhibit PD.

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PW-8 ASI Rohtash Singh, the Investigating Officer of

this case deposed with regard to the investigation conducted by him

proving various documents.

PW-9 Kanwar Pal, Draughtsman, who had visited the

spot and prepared the scaled site plan Exhibit PS on 10.8.2003,

deposed in that regard.

The prosecution relied upon various documents. With that the

prosecution evidence got concluded.

7. Thereafter, statements of the accused were recorded

under Section 313 Cr.P.C. in which all the incriminating

circumstances appearing against the accused in the prosecution

evidence, were put to them, but they denied the allegations

contending that they are innocent and have been falsely involved in

this case.

8. Accused Manoj , Ram Charan, Rajender, Gajanand and

Mahender took up identical plea contending that they were innocent

and had not committed any offence and that they had been falsely

involved by the complainant party in collusion with the police. The

plea raised by Mahabir was that he had been declared innocent by the

police and he had been falsely involved in this case by the

complainant party in collusion with the police. To the similar effect

happened to be the plea raised by accused - Jaipal and Vinod.

9. During their defence evidence, the accused examined

two witnesses i.e. DW-1 HC Bhim Singh, who produced record of

FIR No. 189 dated 31.5.1999 at Police Station Sadar, Bhiwani and

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FIR No. 192 dated 24.5.2003 relating to the same Police Station. This

witness proved copies of those FIRs as Exhibits DF and DG,

respectively. DW-2 Ved Parkash from General Hospital, Bhiwani, had

brought the summoned record and he produced bed head ticket of

Gajanand as Exhibit DH stating that as per bed head ticket Gajanand

was admitted in General Hospital, Bhiwani on 21.5.2003 and was

discharged on 24.5.2003.

10. After hearing the arguments, learned trial Court in

paragraphs No. 40 and 41 of the judgment dated 28.11.2005,

concluded as follows :-

"40. As a sequel to my aforesaid

discussions, it is held that prosecution has been

successful in bringing home guilt against the

accused Gajanand, Ram Charan, Manoj, Vinod

and Jaipal for the offence under Section 148 IPC

as the accused had constituted an unlawful

assembly and were armed with weapons. The

prosecution also proved that these five accused

caused injuries to PW Chotu Ram and PW Hari

Krishan and hence they are also liable for

offence under Section 323 IPC read with Section

149 IPC. These five accused in prosecution of

common object of unlawful assembly caused

injury on the person of Sudama which was

dangerous to life under such circumstances that

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if Sudama had died then they would have been

guilty of murder and hence the prosecution also

successfully proved its case against these five

accused Gajanand, Ram Charan, Manoj, Vinod

and Jaipal for the offence under Section 307 IPC

read with Section 149 IPC. The above named

accused in prosecution of the common object of

unlawful assembly also intimidated complainant

PW Chotu Ram and hence the prosecution also

succeeded in bringing home guilt against the

above named five accused for the offence under

Section 506 IPC read with Section 149 IPC.

41. The prosecution was unable to bring

home guilt against accused Mahender, Mahabir

and Rajender beyond shadow of reasonable

doubt and they are extended benefit of doubt and

are acquitted of the charged leveled against

them."

11. In pursuance of the order passed on 30.11.2005, all the

five accused -convicts, namely, Manoj, Gajanand, Ram Charan,

Vinod and Jaipal were sentenced as under :-

Offence U/s Sentence Under Section 148 IPC Rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-. In default of payment of fine, convict shall further undergo rigorous imprisonment for a period of one month.

                                     10 of 18




     Offence U/s                                Sentence

Under Section 307 IPC Rigorous imprisonment for a period of five years read with Section 149 and to pay a fine of Rs.2,000/-. In default of IPC payment of fine, convict shall further undergo rigorous imprisonment for a period of two months.

Under Section 323 IPC Rigorous imprisonment for a period of six read with Section 149 months.

IPC Under Section 506 IPC Rigorous imprisonment for a period of one year read with Section 149 and to pay a fine of Rs.1,000/-. In default of IPC payment of fine, convict shall further undergo rigorous imprisonment for a period of one month.

All the substantive sentences were ordered to run concurrently.

12. This judgment of conviction and order of sentence, left

the accused aggrieved and they had preferred appeals before this

Court, which were admitted for regular hearing. On application

having been filed, the remaining sentence of the appellants-accused

was suspended and they were ordered to be released on bail, subject

to their furnishing requisite bonds to the satisfaction of Chief Judicial

Magistrate, Bhiwani. Now the appeals have come up for final

hearing.

13. I have heard, learned counsel for the appellants-accused,

learned State counsel, besides going through the record.

14. As far as, appellant -Manoj, to whom injury with farsi on

the head of injured Sudama, which was declared dangerous to life,

has been attributed, appellant-Ram Charan, to whom injury with farsi

on the left foot of complainant, which comes within the definition of

Section 323 IPC has been attributed, their involvement in the incident

stands adequately established by the prosecution by bringing on

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record enough, cogent, convincing and reliable ocular evidence,

supported by medical evidence.

15. However, involvement of other convicts, namely,

Gajanand, Vinod and Jai Pal, is not duly proved and is rather suspect.

The reason for saying so are many.

16. Firstly, the defence has brought evidence to show that

Gajanand was admitted in Civil Hospital at Bhiwani and he was

discharged therefrom on 24.5.2003 only. DW-2 Ved Parkash, an

official from Civil Hospital, Bhiwani, had categorically stated so on

the basis of documentary evidence, which cannot possibly be

manipulated being record kept in the Civil Hospital, which is a

government institution. It is highly unlikely, that Gajanand after

being discharged from Civil Hospital, Bhiwani, would rush to the

place of occurrence, some distance away, do necessary planning with

his co-accused, then would assault complainant - Chhotu Ram, as

well as Hari Krishan and Sudama, at about 11.00 -11.30 am.

17. Secondly, Gajanand had suffered injuries in an incident

in which son of complainant, Chhotu Ram was an accused.

Therefore, the complainant party had a motive to involve him in this

case falsely.

18. As far as appellants Vinod and Jai Pal are concerned,

after registration of the FIR, the matter was investigated and

involvement of Vinod and Jai Pal was not found to be there. As

such, they were not challaned and it was only during trial, after

recording statement of complainant Chhotu Ram, when the

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prosecution had filed an application under Section 319 Cr.P.C., the

same was accepted and Vinod and Jai Pal were summoned as

additional accused to face trial alongwith the other accused challaned

in the case.

19. The second reason, which raises a doubt in the mind

about involvement of Vinod and Jai Pal in the incident, is that

although according to the case of prosecution, Vinod was armed with

a lathi and Jai Pal with a farsi during the incident and Vinod had

caused injury with lathi to Hari Krishan on fingers of right hand,

whereas, Jai Pal had given a farsi blow on the head of Hari Krishan.

But no weapon was recovered from possession of either Vinod or Jai

Pal by the Investigating Officer.

20. The third reason making the involvement of these

appellants-accused in the incident doubtful is that they are resident of

Bhiwani, whereas the incident had taken place at Village Sirsa

Ghogra. Such accused had brought evidence on record including

proving documents to show that they had been residing at Bhiwani

but the trial Court for unconvincing reason had rejected that

contention.

21. It is to be kept in mind that in a criminal trial basically it

is the duty of the prosecution to prove charge against the accused,

beyond a shadow of reasonable doubt and such onus to prove guilt of

the accused to the hilt is stationary on the prosecution and it never

shifts. The accused is to render only reasonable and plausible

explanation which may cause a reasonable doubt in the mind about

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his guilt. He is not expected to prove his defence evidence with same

exactness and rigor with which the prosecution is required to prove

its case against the accused. The prosecution cannot take advantage

of any weakness in the defence version so as to strengthen its case

against the accused. Therefore, as regards involvement of appellants

Gajanand, Vinod and Jaipal, a reasonable doubt does arise in the

mind about their involvement in the incident. As per the law, benefit

of doubt should be given to the accused. The trial Court had though

noticed all the facts discussed above, but rejected the defence version

giving unconvincing reasons and wrongly convicted Gajanand, Vinod

and Jai Pal.

22. With involvement of these three , having not found to be

there in the incident, conviction of the accused for offence under

Section 148 and 149 IPC, is not sustainable, because basic ingredient

of Section 148 IPC and Section 149 IPC is unlawful assembly, which

in terms of Section 141 IPC, must consist of at least five members.

Section 148 IPC deals with offence of rioting armed with deadly

weapons. Section 146 IPC provides that whenever force or violence

is used by an unlawful assembly, or by any member thereof, in

prosecution of the common object of such assembly, then every

member of such assembly is guilty of the offence of rioting. Section

149 IPC provides that every member of unlawful assembly is guilty

of offence committed in prosecution of common object. Therefore,

neither offence under Section 148 IPC, nor under Section 149 IPC,

survives.

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23. Now, since, involvement of accused - Manoj and Ram

Charan has been found to be there, they can be convicted with the

help of Section 34 IPC for causing injuries to Chhotu Ram, Hari

Krishan and Sudama, in furtherance of their common intention.

24. It needs to be mentioned here that there was delay of

about 9 hours in lodging the FIR. The delay is looked down upon

with suspicion by the Courts since that provides spontaneous and

blemish-free version of the incident and with the passage of time,

the element of truth in the version gets diluted and possibility of false

implication after due deliberations and consultations can easily creep

in. Such delay, in this case seems to have been utilized in throwing

the net wide and implicating as many persons as possible of the

opposite party.

25. The trial Court had acquitted three of the persons,

namely in the FIR i.e. Mahabir, Mahender and Rajender, whereas

involvement of other three persons, namely, Gajanand, Vinod and Jai

Pal has also found to be not there.

26. Whereas, Manoj and Ram Charan are found to have

caused injuries on the person of Chhotu Ram, Hari Krishan and

Sudama, in pursuance of their common intention. Injury under

Section 307 IPC on person of Sudama is attributed to Manoj.

Whereas to Ram Charan simple injuries are attributed. It appears that

the other simple injuries on person of the other injured were also

caused by them in pursuance of the common intention. They are also

found to be guilty of criminal intimidation.

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27. It is to be kept in mind that merely for the reason that the

version of the prosecution with regard to six of the alleged assailants

had been disbelieved, does not mean that its case regarding Manoj

and Ram Charan should also be discarded.

28. From the medical evidence brought on file by the

prosecution, it comes out that Chhotu Ram, Hari Krishan and Sudama

had suffered injuries on their person. Manoj , when arrested by the

police, in this case had suffered a disclosure statement on 26.5.2003

and got a farsi recovered from his possession, which was then seized

by the Investigating Officer. Similarly, Ram Charan, while in police

custody on 1.6.2003, had suffered a disclosure statement under

Section 27 and got recovered a farsi from his possession. Therefore,

the prosecution has successfully proves its charge against Manoj and

Ram Charan. The maxim falsus in uno, falsus in omnibus i.e. false

in part, is false in whole, is not made applicable by the courts in

India, rather an endeavor is made to separate grain from the chaff i.e.

truth from the falsehood.

29. In view of the detailed discussion above, the appeal filed

by Gajanand, Vinod and Jai Pal is accepted, with the result, the

impugned judgment of conviction and sentence, passed against them

is set aside and they are acquitted of the charge framed against them.

28. Whereas, the appeal(s) with regard to Ram Charan and

Manoj, is dismissed. However, their conviction is modified and they

are convicted as under:-

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Name of the Offence u/s Sentence convict Manoj Under Section 307 IPC Rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict shall further undergo rigorous imprisonment for a period of two months.

Under Section 323 IPC Rigorous imprisonment for a read with Section 34 period of six months.

IPC Under Section 506 IPC Rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-. In default of payment of fine, convict shall further undergo rigorous imprisonment for a period of one month.

Ram Charan Under Section 307 IPC Rigorous imprisonment for a read with Section 34 period of five years and to pay a IPC fine of Rs.2,000/-. In default of payment of fine, convict shall further undergo rigorous imprisonment for a period of two months.

Under Section 323 IPC Rigorous imprisonment for a read with Section 34 period of six months.

IPC Under Section 506 IPC Rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-. In default of payment of fine, convict shall further undergo rigorous imprisonment for a period of one month.

Accused-appellants Manoj and Ram Charan are stated to be on bail

granted to him by this Court vide order dated 24.7.2006 and

1.9.2006, respectively, while suspending their remaining sentence.

Their bails are cancelled. Chief Judicial Magistrate, Bhiwani, is

directed issue non-bailable warrants of arrest against them to get

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them arrested and make them undergo the remaining part of their

sentence of imprisonment. Necessary intimation be sent to Chief

Judicial Magistrate, Bhiwani, in that regard.

                                             ( H.S. Madaan )
             th
September 6 , 2022                                Judge
chugh



             Whether speaking / reasoned            Yes / No

            Whether reportable                      Yes / No




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