Punjab-Haryana High Court
Ram Niwas And Ors vs State Of Haryana on 24 September, 2024
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2024:PHHC:131444-DB
CRA-D-899-DB-2007(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Date of Decision:-24. 09.2024
CRA-D-899-DB-2007(O&M)
Ram Niwas & Ors
......Appellants.
Vs.
State of Haryana
......Respondent.
AND
CRR-109-2009(O&M)
Sher Singh
......Petitioner.
Vs.
Ram Niwas & Ors
......Respondents.
CORAM:- HON'BLE MR. JUSTICE SUDHIR SINGH
HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present:- Mr. Lokesh Sharma, Advocate for the Appellants.
Mr. Ashok Chaudhary, Addl. AG Haryana.
Mr. Salil Dev Singh Bali, Advocate for the
Petitioner in (CRR-109-2009) &
for the Complainant in CRA-D-899-DB-2007.
***
JASJIT SINGH BEDI, J.
By this common order we shall dispose of both the
aforementioned cases i.e. one appeal against the judgment of conviction and
order of sentence dated 10/13.10.2007 and the other one criminal revision
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seeking enhancement of sentence.
2. As per record, the occurrence took place on 22.09.2003. The
judgement was passed on 10/13.10.2007 and the matter has been taken up
for hearing now after 21 years of the date of occurrence.
3. The prosecution case in brief is that on receipt of ruqqa from
civil hospital, Sohna police reached the hospital and recorded the statement
of Sher Singh son of Man Singh complainant. It was stated by the
complainant that he had four brothers. The eldest was Deena, younger to
Deena was the complainant Ram Singh was younger to him then there was
Dalip and the youngest was Ishwar Singh. Sher Singh complainant, Ram
Singh and Dalip were residing in their houses constructed in the fields.
Deena brother of the complainant resided in the village and near his house,
there was the house of Ram Niwas son of Sohan Lal accused. It was further
alleged that Sohan Lal and his sons were in litigation with them
(complainant party) regarding the rasta. In the evening of 21.9.2003 Sohan
Lal son of Lakhmi, Ram Niwas son of Sohan Lal and Balraj son of Ram
Kumar embedded stones in the rasta. When the complainant came to know
about this fact, he in the morning of 22.9.2003 came to the drawing room of
his brother Deena and removed or dug out the embedded stones. At this
Hind Pal son of Sohan Lal gave a threat to the complainant etc., to the effect
that they would teach them (complainant party) a lesson within ten minutes.
After some time Sohan Lal etc., along with the ladies of his family came
with spade and stones and started putting the stone in front of the drawing
room of Deena brother of the complainant. At that time complainant, his
brother Ram Singh, Bhagwana and Deena were sitting in the room. They
objected to the embedding (putting) of stones in the rasta. Then ladies from
the family of the accused started hurling stones/brick bats and the sons of the
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complainant could tell the names of these ladies. Sohan Lal armed with a
ballam also came. When the complainant party objected to the hurling of the
brick bats and wanted to stop the ladies, Balraj (accused declared proclaimed
offender) son of Ram Kumar fired three shots with his gun in the air after
standing on the roof of the house of Sohan Lal and then fired one shot at
Ram Singh brother of the complainant which hit at his face and on the
throat. Consequently Ram Singh fell down on the ground. When the
complainant tried to lift Ram Singh, Balraj fired a shot at the complainant
and the pellets hit his head. In the mean time Indira wife of Ram Kumar
gave a lathi blow on the wrist of the left hand of the complainant and one
lathi blow was given by sister of Indira on the thumb of the left hand and
second lathi blow was given by Indira on his head. In the meantime Mahesh,
Ram Niwas and Jaipal armed with guns also climbed the roof of the house of
Sohan Lal and they started firing indiscriminately. Jaipal was armed with a
country made pistol. Sunil son of Bijender, Choti wife of Deen Dayal,
Bhagwana son of Chuttan also raised alarm and received injuries with the
pellets. It is further alleged that Sohan Lal gave a ballam blow lathi twice on
the head of Deena. It is further alleged that the complainant party entered
their houses to save themselves but still Balraj etc., accused went on firing at
them. As a result of the fire arm injuries Ram Singh brother of the
complainant died. The complainant party was removed to civil hospital
Sohna. Dead body of Ram Singh was also brought to the hospital. It is
alleged that Sohan Lal etc., accused had caused injuries and had attacked the
complainant party without any right and had killed Ram Singh brother of the
complainant and this occurrence has taken place at about 1.00 p.m. As a
result of the firing Giri Raj and Ajit, two boys of the caste of Kohli also
received injuries from the pellets. Mahender Singh Nephew of the
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complainant had also seen the occurrence. The statement was sent to the
police station after making an endorsement by Mohan Singh ASI on the
basis of which this case was registered and investigated. Inquest report was
prepared. Dead body of Ram Singh was subjected to post mortem
examination. Medical reports were collected and on completion of
investigation the police put up challan against six accused other than Smt.
Indira and Smt. Shakuntala. Then these two accused namely Smt. Indira and
Shakuntala were summoned as additional accused.
4. To the charge framed U/s 148/323/325/302/307 IPC read with
section 149 IPC on 10.4.2004, all the accused pleaded not guilty and claimed
trial. To the charge framed U/s 25 of Arms Act Jaipal accused and to the
charge framed u/s. 27 of Arms Act Balraj and Ram Niwas accused pleaded
not guilty and claimed trial. Subsequently an application for amendment of
the charge was filed as the names of all the injured had not been mentioned
in the chargesheet.
5. The Prosecution in its evidence examined Kuldeep Singh HC
PW1, Balbir Singh Constable PW2, Dr. Gurvinder Singh PW3, Satpal EHC
PW4, Naresh Kumar Draftsman PW5, Bijender Singh PW6, Sher Singh
PW7 Dr. Jai Narain PW8 Khem Chand Constable PW9, Kuldeep Singh SI
PW10, Dr. Subhash Sandhu PW11, Mohan Singh ASI PW12, Mahavir
Photographer PW13 and Khem Chand Constable PW14. Then the
statements of the accused were recorded under section 313 Cr.PC. The
accused were called upon to enter their defence. They produced Paramjeet
DW-1, Sant Ram DW2 and Mangal Singh DW3. Some documents were also
produced by the accused in their defence. Accused Ram Niwas in his
statement under section 313 Cr.PC denied all the allegations and pleaded his
innocence. It was stated by him that on 16.4.93 the Sarpanch moved an
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application to the Assistant collector that his father Sohan Lal had
encroached upon land Rect No. 75 plot No. 129 contiguous to their plot No.
199. Enquiry was made and it was found that they had left one karam land
beyond the wall towards rasta and it was Sher Singh who had encroached
upon the public way plot No. 129. Sher Singh and his brothers had a large
family. They grabbed the Shamlat Deh and wanted to grab the rasta of plot
No. 129 and 255.Suit for injunction was also filed. Sher Singh and others
illegally in collusion with authorities demolished their wall, latrine, trees
standing in their plot No. 199. It was further stated by the accused that they
had filed a criminal complaint and civil suit for their unlawful action. They
took recourse to law as they were weak against Sher Singh's family. They
had never resorted to any illegal act. They had affixed their stones in the
vicinity of their wall towards a rasta bearing plot No. 129 for the safety of
their wall in the rainy season. Sher Singh and other had an eye over the
passage for the long time so they removed the affixed stones on the day of
the incident which was objected to by him, his father Sohan Lal and his
brother Jaipal and wife Kamlesh. It infuriated Sher Singh's party. They
attacked with spear, lathis etc., Jaipal and Kamlesh pelted stones towards
them but they caused injuries to Jaipal, Kamlesh and to the father of this
accused with lathis and spear. It was further stated by this accused that his
father fell down in order to save himself and Kamlesh wife of Ram Niwas
bent upon him and took lathi blows on her back. It was further stated by this
accused that on hearing the cries he came to the spot and asked them not to
beat mercilessly but they advanced towards him. Then he brought his gun
and fired in the air to scare him but they rushed towards him to snatch the
gun. It was further stated by this accused that he apprehended danger to his
life and his relations so he fired towards them from the gate. They also fired
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from their bethak. It was further stated by this accused that they took their
injured to the hospital and informed the police about this occurrence. It was
further stated that he was to be examined by the doctor but relative of Sher
Singh threatened to kill him and he left the hospital and later on surrendered
before the police with his gun. The police had colluded with Sher Singh.
They did not record their report and twisted the record. The Report was not
read over to Jaipal. No firing was done from the roof of the house. The
incident took place at plot No. 129 on the land of the accused and not on plot
No. 255. Prosecution witnesses had deposed falsely. All the remaining
accused also denied all the prosecution allegations and pleaded their false
implication in this case. These accused also pleaded their innocence. Jaipal
accused adopted the statement made by Ram Niwas co-accused and it was
also stated by him that his report was not read over to him by the police. He
was medico legally examined in Gurgaon and Safderjung Hospital.
Hind Pal accused denied all prosecution allegations and pleaded
his innocence and false implication. It was stated by him that he was not
present at the time of occurrence.
Sohan Lal accused adopted the statement of Ram Niwas,
accused and it was stated by Sohan Lal that he received grievous injuries. He
was medico legally examined at Gurgaon and Safderjung. All the
prosecution allegations were denied by this accused.
Mahesh accused also denied all the prosecution allegations and
pleaded his false implication and innocence. Indira accused stated that the
prosecution witnesses had deposed falsely against her. She was innocent.
She had been implicated falsely by the complainant party. All the allegations
were denied by her in her statement.
Shakuntala accused also denied all the incriminating
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circumstances appearing in evidence against her and it was stated by her that
she was found innocent by the police. She had been falsely implicated by the
prosecution witnesses.
It may also be mentioned that supplementary statements of the
accused under section 313 Cr. P.C. putting documents Ex. PL to Ex. PT etc.,
was also recorded and the accused stated that they do not know about the
documents as a long time had passed and they were in custody since long.
6. A resume of the prosecution evidence adduced in this case is as
under:-
Kuldeep Singh HC PW-1 produced his affidavit Ex. PA.
Balbir Singh Constable PW2 produced his affidavit Ex.PB.
Shri M. R. Gill, PP for the state tendered in evidence report of
Director FSL Ex. PC and gave up HC Kailash Singh, Constable Satish
Kumar and HC Prem Raj as un-necessary vide statement dated 3.6.2004.
Dr. Gurvinder Singh PW3 deposed that on 22.9.2003 he
conducted medical examination of Ajit son of Hari Chand and found the
following injuries on his person:
Multiple small circular to oval punctured lacerated wound
present on:-
1. just about left elbow posteriorly
2. right thigh at mid level posteriorly
3. left cheek just lateral and inferior to left eye with size varying
from 0.2 cm x 0.4 cm to 0.4 cm x 0.6 cm. Fresh and clotted
blood present. Collar of abrasion present.
Corresponding to injuries No.1 and 2, holes were present in
clothes. Margins were blackened. X- rays revealed one radio opaque circular
shadow of metallic density in left elbow region and one radio opaque
circular shadow of metallic density in right upper thigh region.
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Ex. PD copy of the MLR was proved in his statement. It was
further stated by this witness that he medico legally examined Monu son of
Giriraj and found the following injuries:
Multiple circular to oval lacerated wounds present on 1. mid
line of left of posteriorly 2. above left knee posteriorly 3. in the middle of
left scapula 4. Left axilla laterally 5. Right arm posteriorly just below
shoulder and left side of neck postero laterally with size varying from 0.2 x
0.4 cm to 0.2 x 0.6 cm. Margins were inverted and blackened. Collar of
abrasion present. Holes are present in cloth. Corresponding to injuries. Fresh
bleeding and clotted blood present.
X-ray revealed two small radio opaque circular shadows of
metallic density present one on right upper arm and other on left scapular
region and one small radio opaque circular shadows of metallic density
present on upper part of right leg.
Copy of MLR Ex. PE is proved. This doctor PW3 also stated
about sending of ruqqa Ex. pertaining to the admission of these two injured
namely Ajit and Monu in the hospital. It was further deposed by this witness
that he medico legally examined Deen Dayal and found the following
injuries on his person:
1) A CLW of 7cm size on middle of scalp, just left and parallel of mid
line. Fresh bleeding was present. X-ray revealed no boy injury.
2) There were complains of generalised body aches. No external injury
marks were seen. Patient was kept under observation.
Ex. PG photocopy of the MLR is proved in his statement. It is further
deposed by this witness that he medico-legally and person: found the
examined Sher Singh following injuries on his person:
1) Two small oval to circular 0.2 to 0.4 cm size lacerated wound present
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on left temporal region, 3cm apart. Fresh bleeding present. Margins are
inverted and blackened. Collar of abrasion present. X-ray revealed two
circular radio opaque shadows of metallic density seens in left side of scalp.
2) A CW of 1 x Vi cm present 1 Vi cm behind injury No. 1.
3) Swelling and tenderness of left wrist on hand with multiple abrasions.
X-ray revealed fractures right radial bone.
Carbon copy of the medical report Ex.PH was proved in his statement. X-ray
report Ex. PH/1 and x-ray film Ex. PH/2 to Ex. PH/4 were also proved. Then
this doctor also medico legally examined Bhagwana son of Chuttan and
found the following injuries on his person:
1) A small abrasion on left wrist posteriorly
2) A circular 0.2 x 0.4 cm lacerated wound on left little finger at distal
end posteriorly. Fresh bleeding present. Margins is inverted and blackened.
Collar of abrasion present.
3) A 1 to 1 cm oval lacerated wound on posterior side of right thigh just
above right knee. Fresh bleeding present. Margins is inverted and blackened.
Collar of abrasion present.
4) A 0.2 x 0.4 cm sized lacerated wound on dorsom of right foot at mid
level. Fresh bleeding present. Collar of abrasion present. Margins inverted
and blackened.
X-ray revealed three small linear radio opaque of shadows of
metallic density present on proximal phalynx of left ring finger and left little
finger and left wrist.
Carbon copy of the MLR Ex. PJ, X-ray report Ex. PJ/1 and X-
ray film Ex. PJ/2 to Ex.PJ/4 are proved in his statement.
This doctor PW3 also medico legally examined Vijender son of
Deen Dayal and found the following injuries on his person:
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A circular 0.2 to 0.4 cm lacerated wound on left ring finger
laterally. Collar of abrasion present. Fresh bleeding present. Margins is
inverted and blackened. X-ray revealed one small circular radio opaque
shadow of metallic density seen in proximal phalynx of left hand.
Carbon copy of the MLR is Ex. PK and X-ray report Ex. PK/1
and X-ray film Ex. PK/2 is proved in his statement.
Further Dr. Gurvinder Singh PW3 deposed that he also medico
legally examined Sunil vide MLR carbon copy of which is Ex. PL and found
the following injuries on his person:
1) A CLW of 3 cm size on middle of scalp at mid line. Fresh bleeding
was present. X-ray revealed no bony injury.
2) Patient complaint of body aches. No external injury marks were seen.
Patient was kept under observations.
Ruqqa Ex. PM is also proved in his statement. It is further stated by this
doctor that he medico legally examined Chotti wife of Deen Dayal and
found the following injuries on her person:
1) A 0.3 x 0.5 cm oval lacerated wound present on left side of anterior
abdominal wall near umbilicus with inverted and blackened margins. Clotted
blood present. Patient was advised x-ray abdomen.
2) Patient complaint of body aches. No external injury marks seen.
Patient was kept under observations.
Carbon copy of the MLR Ex. PN and ruqqa Ex. PO are also proved in his
statement. In cross examination this doctor has also admitted that on
22.9.2003 he examined Jaipal accused and found the following injuries on
his person:-
1) A CLW of 5cm size on middle of scalp at midline. Fresh bleeding
present. X-ray was advised for the injury.
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2) Swelling and tenderness of right shoulder. X-ray was advised.
3) Patient complains of body aches but no other external injury mark was
seen.
Photocopy of the MLR Ex. DB is proved in his statement.
In cross examination this doctor has also admitted that he
examined Sohan Lal accused and found the following injuries on his person:
1) An incised wound of 2 and a half cm (2 Vi cm) size on left forearm
posteriorly with swelling and tenderness.
2) Swelling and tenderness of left wrist and hand. For both these injuries
X-ray was advised.
3) Patient complains of body aches but no other external injury mark was
seen.
It is also deposed that on X-ray examination fracture of left Ulna and
fracture metacarpal of left index finger was seen. Photocopy of the MLR Ex.
DD is also proved in his statement and in cross examination this doctor has
also stated that he medico legally examined Kamlesh wife of Ram Niwas
and found the following injuries on her person:
1) Patient complain of chest pain. No external injury mark was seen.
2) Patient complain of pain abdomen. No external Injury mark was seen.
3) Multiple rail road patterned bruises all over the back. Injury was kept
under observation.
Photocopy of the MLR Ex. DF is proved in his statement.
Satpal EHC PW4 has stated that on 22.9.2003 he was handed
over one parcel, one envelope, two bottles which he handed over to 10 vide
memo Ex. PQ.
Naresh Kumar Draftsman PW-5 has proved scaled site plan
Ex.PR on the demarcation of Mahender Singh.
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Bijender Singh PW6 was the injured eye witness of the
occurrence and in order to avoid repetition his statement in detail has not
been recapitulated.
Sher Singh PW7 was also an injured eye witness of the
occurrence and has also stated about the part played by the accused. In order
to avoid repetition his statement has not been narrated in detail. Sher Singh
however proved his statement Ex. PS made to the police.
Shri M. R. Gill PP for the state gave up Smt. Chotti and Deena
PWs as un-necessary.
Dr. Jai Narain SMO PW8 conducted the post mortem
examination of the dead body of Ram Singh son of Man Singh on 23.9.2003.
A carbon copy of post mortem report Ex. PT is proved in his statement. The
cause of death in his opinion was due to haemmorage and shock and injuries
on the left lung producing emphysema and collapse due to the injury of
major vessels in the neck and lung injury respectively due to the fire arm
injury and the injury was ante mortem in nature and sufficient to cause death
in the ordinary course of nature.
Shri M. R. Gill, PP for the State gave up Bhagwana, Mahabir
Constable, Ramesh Kumar, Ajit, Monu and Sunil as unnecessary vide
statement dated 12.11.2005.
Further vide statement dated 13.5.2006 Shri M. R. Gill, PP for
the state gave up Mahender Singh and Tota Ram PWs as unnecessary.
Khem Chand PW9 stated that on 22.9.2003 he was posted in PS
Sohna and he delivered this special report of this case to Illaqa Magistrate
without any delay.
Kuldeep Singh SI PW10 has stated that on 22.9.2003 he was
posted as SI/SHO in PS Sohna. On receipt of the information he went to
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village Kiranj and verified the investigation. On 23.9.2003 Balbir Singh
Constable handed over post mortem report along with two sealed parcels
containing clothes and bullets which were taken into possession vide memo
Ex. PU. He also recorded the statement of the witnesses under section 161
Cr. P. C. On 25.9.2003 Mohan Singh ASI arrested Ram Niwas accused. On
26.9.2003 on interrogation Ram Niwas accused made disclosure statement
Ex. PV and in furtherance of the same he got recovered one double barrel
gun from his house along with his licence. The sketch of the same was
prepared. Recovery memo Ex. PV/1 was prepared. It was further stated by
this witness that on 1.10.2003 Sohan Lal accused on interrogation made
disclosure statement Ex. PX and got recovered ballam in pursuance of the
disclosure statement which was taken into possession vide recovery memo
Ex. PX/1. Accused Jaipal also made a disclosure statement Ex. PY. On
3.10.2003 Balraj, Mahesh and Hind Pal accused were arrested. Mahesh
accused made a disclosure statement Ex. PZ. Balraj accused made disclosure
statement Ex. PAA and Hind Pal accused also made disclosure statement Ex.
PBB. Balraj accused got recovered double barrel gun. Sketch of the gun is
Ex. PAA/2 and the site plan of the place of recovery is Ex. PAA/3. Hind Pal
accused had got recovered lathi. Rough site plan was prepared on
completion of investigation report under section 173 Cr. P.C. was prepared.
Dr. Subhash Sindhu PW11 stated that he sent four sealed bottles
in two packets containing metallic body to SHO PS City Gurgaon for
onward handing over the same to the Director FSL, Karnal. Pellets were
recovered from the body of Monu, Vijender, Ajit and Bhagwana and Ex. PU
was the document prepared in this regard.
Mohan Singh ASI PW12 stated that on 22.9.2003 he received
information from the hospital regarding the admission of the injured. He
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recorded the statement of Sher Singh which is Ex. PS. He took Mahender
Singh from the hospital and went to the spot in village Kiranj. He also took
photographs. He inspected the spot and prepared rough site plan Ex. PX. He
also took into possession blood stained earth, shoe of the deceased and two
empty cartridges vide memo Ex. PY. He also took into possession two
pieces of quilt and plastic pieces of gutka. On the same day he also took into
possession sealed clothes of Monu and Ajit. From the hospital he went to PS
Sohna and deposited the case property. On 23.9.2004 he prepared inquest
report which is Ex. PT/2. On 25.9.2003 he arrested accused Ram Niwas.
Empty cartridges Ex. P10 and Ex. P11 were also proved in his statement.
Mahavir Photographer PW13 proved photographs Ex. PI to Ex.
Pll and negatives Ex. P12 to Ex. P22 of the place of occurrence.
Khem Chand EHC PW14 stated that on 22.9.2003 MHC
handed over special report of the case for delivery of the same to Illaqa
Magistrate and higher authorities.
Prosecution tendered in evidence certified copies of the order
Ex. PL to Ex. PP and also tendered in evidence documents marked A to H
and I and J and closed the prosecution case.
The accused were called upon to enter their defence and in
defence they produced Paramjeet DW1 who was a photographer. He proved
photographs Ex. Dl to Ex. D3 and negatives Ex. D4 to Ex. D6 and it was
stated that at the instance of Sohan Lal he had taken the photographs.
Sant Ram DW2 stated that Shakuntala was his sister. She was
married in the year 1980. After one year of the marriage she was deserted by
her husband and in-laws. She was residing with him in village Nawada,
District Gurgaon. Ration card was also existing in her name in this village. It
was further stated that on 22.09.2003 she was in village Nawada at his house
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and he had told this fact to the police.
Mangal Singh DW3 stated that Shakuntala was residing with
her brother in village Nawada since the date of her marriage. She was also
getting pension as old age pensioner in their village and he is Lumberdar of
the village. On 22.9.2003 she was present in the village. Documents Ex. D3
to Ex. D6 were also produced by the accused in their defence.
7. Vide judgment and order dated 10/13.10.2007 Ram Niwas and
Mahesh (appellant nos.1 & 4) were convicted and sentenced as under:-
Sr. No. Offence Imprisonment Fine In Default
1. 302 r/w 34 IPC RI for Life Rs.5,000/- RI for 02
each each Years each
2. 307 r/w 34 IPC RI for 07 Rs.2,000/- RI for 01 Year
Years each each each
Ram Niwas
Sr. No. Offence Imprisonment Fine In Default
1. 27 of Arms Act RI for 03 Rs.1000/- RI for 06
Years Months
Convicts Jai Pal, Sohan Lal and Smt. Indira (appellant nos.2,3
& 5) were convicted and sentenced as under:-
Sr. No. Offence Imprisonment Fine In Default
1. 323 r/w 34 IPC RI for 01 - -
Years each
2. 325 r/w 34 IPC RI for 03 Rs.1,000/- RI for 06
Years each each Months each
All the aforesaid sentences were ordered to run concurrently.
Hind Pal and Shakuntala were acquitted giving them benefit of
doubt.
8. While the convicted accused filed Criminal Appeal No.899-DB-
2007 challenging their conviction, the complainant filed a Criminal Revision
No.109-2009(O&M) seeking enhancement of sentence.
9. The Counsel for the appellants in CRA-D-899-DB-2007 and
CRR-109-2009 has brought it to the notice of this Court that appellant no.1-
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Ram Niwas and appellant no.3-Sohan Lal have since passed away and Balraj
was declared a proclaimed offender during the course of the Trial.
10. The Counsel for the appellants contends that Mahesh Kumar
has been convicted under Section 302 IPC and Section 307 read with
Section 34 IPC. As per the allegations he had gone to the roof along with
Ram Niwas and Jai Pal and had fired shots from there. However, firstly, on
his arrest, no recovery of any firearm was effected from him and secondly
two empty cartridges recovered from the spot, were sent for forensic
analysis as per which the cartridges had been fired from the weapons
recovered from Balraj Singh (proclaimed offender) and Ram Niwas (since
deceased). Therefore, it is his contention that the false implication of
Mahesh could not be ruled out and he ought to be acquitted of the charges
framed against him.
11. As regards appellant Jaipal & Smt. Indira, he contends that the
medical evidence was contrary to the ocular account. Smt. Indira had been
declared to be innocent and had been summoned under Section 319 Cr.PC.
He, therefore, contends that these two accused were also entitled to acquittal.
12. The Counsel for the complainant and the counsel for the State
on the other hand contend that the offences stood established beyond
reasonable doubt against all the accused. In fact, even Jaipal and Smt. Indira
were liable to be convicted for the offences under Section 302/307 read with
Section 34 IPC along with the substantive offences committed by them
under Sections 323/325 read with Section 34 IPC. Therefore, the present
appeal was liable to be dismissed and the sentence awarded to the appellant-
Jaipal and Smt. Indira ought to be enhanced.
13. We have heard counsel for the parties and perused the record.
14. A perusal of the testimony of PW-6 Bijender and PW-7 Sher
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Singh would show that as regards Mahesh Kumar, the allegations are that he
had gone to the roof where he along with Ram Niwas and Jaipal had fired
shots on the complainant party when Balraj had fired his fourth and fifth
shot. However, the shots allegedly fired by Mahesh Kumar, Ram Niwas and
Jaipal are not stated to have struck anyone. It is a matter of record that when
Mahesh Kumar was arrested no recovery of any firearm was effected from
him. Two weapons were recovered from Balraj and Ram Niwas. Two
empty cartridges were also recovered from the spot and as per report of the
FSL the empty cartridge had been fired from the weapons recovered from
Balraj Singh and Ram Niwas. Further, Jaipal against whom identical
allegations had been levelled stands acquitted of the offence(s) under
Sections 302/307 on the ground that he also received injuries. In this
situation, it is quite possible that a net had been knit so as to implicate
Mahesh Kumar as well. Therefore, while giving him the benefit of doubt,
we deem it appropriate to acquit him of the charges framed against him.
15. As regards Jaipal and Smt. Indira, it may be pointed out that the
medical evidence is totally in consonance with ocular account qua the role
attributed to these accused. The injuries attributed to them are apparent from
the medico legal reports of the injured. Therefore, we find no infirmity in
the judgment of conviction qua these appellants and the appeal qua them
stands dismissed.
16. However, as the occurrence took place 21 years ago, the
substantive sentence of the appellants Jaipal and Smt. Indira is modified and
reduced as under:-
Sr. No. Offence Sentence Fine In Default
Reduced to
1. 323 r/w 34 IPC RI for 06 - -
months each
2. 325 r/w 34 IPC RI for 06 Rs.1,000/- RI for 06
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Neutral Citation No:=2024:PHHC:131444-DB
CRA-D-899-DB-2007(O&M) #18#
months each each Months each
17. In view of the aforementioned discussion, the criminal appeal
(CRA-D-899-DB-2007) stands allowed qua Mahesh and he is acquitted of
the charges framed against him; qua Jaipal and Indira it stands dismissed
with modification of the sentences as mentioned in para no.14; whereas the
revision petition (CRR-109-2009) seeking enhancement of sentence stands
dismissed.
( JASJIT SINGH BEDI ) ( SUDHIR SINGH )
JUDGE JUDGE
September 24, 2024
Vinay
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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