Sahab Ram and Others Vs. State of Haryana - Court Judgment

Excerpt:
a.n. jindal, j. accused-appellants sahab ram, nanu ram, kanshi ram and dholu ram sons of dungar, residents of village tibbi, fatehabad were prosecuted under sections 302/307/34 ipc and 25/27 arms act, for causing death of balraj son of jag ram and attempting to cause death of sumitra daughter of kanshi ram. consequently, they were convicted vide judgment dated 18.12.2001 passed by the learned additional sessions judge, fatehabad and sentenced as under :- sahab ram u/s 302 ipc: rigorous imprisonment for life and to pay fine of rs.10,000/-. nanu ram, kanshi ram and dholu ram u/s 302/34 ipc: rigorous imprisonment for life and to pay fine of rs.10,000/- each sahab ram and nanu ram u/s 25 arms act: rigorous imprisonment for two years and to pay fine of rs.5000/- each. the allegations in nutshell are that on 15.11.1996, at about 5.30 pm, the complainant jag ram (herein referred as, 'the complainant') was returning from his field at dabarwala for his house. balraj son of the complainant was going to the shop situated in the main chowk of the village for purchasing 'biri' and when he was passing in front of the house of kalu alias umrav singh and was near the house of aad ram, all the accused, who were ambushing behind the heap of bricks, came out. kanshi ram was having his licenced gun. on seeing balraj, kanshi ram exhorted that he be not allowed to go scot free. at this, dholu ram caught balraj, but he managed to get himself free from his clutches and tried to flee towards the street of harijans. nanu ram came in front of balraj and laid him on the ground, however, balraj tried to crawl towards the house of kalu ram. sahab ram, took out pistol from his dub and fired a shot which hit at his (balraj) back. nanu ram also fired at balraj, but it missed and hit sumitra minor daughter of kanshi ram on her left eye. kanshi ram pointed his gun towards the complainant, but in the meantime, diwan chand grand-son of the complainant, and ram murti came at the spot and raised alarm. at this, all the four accused fled away from the spot along with their respective weapons. kanshi ram took her daughter sumitra to the civil hospital, bhuna. the motive behind the occurrence is that about 1 months prior to the occurrence, the accused sahab ram had inflicted knife injury to bhuri devi wife of the complainant for which a case under sections 324/325 ipc was registered. the accused sahab ram and his brothers were putting pressure upon the complainant for a compromise but on refusal, sahab ram and his brothers felt annoyed with them. on the basis of the aforesaid statement ex.p4 made by jagram before si/sho baljit singh, fir ex.p5 was registered. the investigating officer reached the spot and prepared the inquest report ex.p6/a, sent the dead body of balraj to general hospital, fatehabad for postmortem examination. he also took blood stained earth, a torn piece of cloth, a pair of chappals belonging to the deceased balraj, a pair of shoes (juti) belonging to the accused sahab ram, woollen chadar belonging to the deceased, another woollen chadar belonging to the accused nanu ram and a woollen blanket belonging to accused dholu ram, which were lying at the spot, into possession vide recovery memos ex.p17, ex.p24, ex.p22, ex.p20, ex.p19, ex.p26 and ex.p28 respectively. he also prepared rough site plan ex.p44 of the place of occurrence. thereafter, he went to the civil hospital, fatehabad for recording statement of sumitra where she was reported to have been referred to the general hospital, hisar and thereafter she was referred to pgi, rohtak. on 19.11.1996, investigating officer si baljit singh visited medical college and hospital, rohtak for recording statement of sumitra, but she was declared unfit to make the statement. however, her statement was recorded on 22.11.1996 by asi madan lal who also took the bullet which was taken out from her eye, into possession vide memo ex.p58. on the same day, the investigating officer received secret information that accused kanshi ram and dholu had gone to village ghotru, at which he reached village ghotru and arrested kanshi ram and dholu. accused kanshi ram suffered a disclosure statement ex.p46, pursuant to which he got recovered double barrel gun, three live cartridges and licence of the gun which were taken into possession vide recovery memo ex.p52. on 20.11.1996, the investigating officer arrested the accused nanu ram from near the bus stand of village tibbi. on his personal search. 315 bore country made pistol was recovered from the right dub of the pyjama and a live cartridge was also recovered from the right side of the pocket of his shirt. the sketch of the pistol ex.p36 was prepared and thereafter the same along with the live cartridge were taken into possession vide memo ex.p38. accused nanu ram could not produce any licence for keeping the pistol and the cartridge in his possession, as such the investigating officer sent ruqa ex.p55 to the police station, on the basis of which formal fir ex.p56 under section 25 arms was registered against him. on 23.11.1996, on receipt of secret information, the investigating officer again went to village tibbi and arrested the accused sahab ram from his cotton field. he also suffered disclosure statement ex.p39 pursuant to which he got recovered pistol, two live cartridges and one empty cartridge in his house in a room wrapped in some cloth, from the disclosed place, the same were also taken into possession vide recovery memo ex.p41. investigating officer also sent ruqa ex.p59 to the police station on the basis of which a separate fir ex.p60 under the arms act was registered against him. it is pertinent to mention here that separate challans for the offence punishable under section 25 of arms act were filed against the accused sahab ram and nanu ram which were tried by the court along with the main case the accused were charged under sections 302/307/34 ipc, and also under section 25 of the arms act, to which they pleaded not guilty and claimed trial. during trial, the prosecution examined dr. p.l. jindal (pw1) who has radiologically examined dead body of balraj and proved x-ray report ex.p1 and skiagram ex.p2. c. radhey sham (pw2) draftsman has proved the scaled site plan ex.p3. sunder lal (pw3) has proved the arms licence issued to kanshi ram for his gun on 1.6.1993. asi shiv kumar (pw4) has proved the fir ex.p5. c. rohtash (pw5) has stated that he delivered the special report ex.p5 to the learned illaqa magistrate on 15.11.1996 at 10.50 pm. hc ram mehar (pw6) has proved the photo copy of the fir no.224 dated 7.11.1996 ex.p7. he has also deposed regarding deposit of the case property with him and sending the same to the forensic science laboratory. he has also tendered his affidavit ex.p8. c. harai parkash (pw7) has also proved his affidavit ex.p9 in evidence. dr. r.c. goyal (pw8) has proved ruqa ex.p4/a sent to the station house officer, police station bhuna regarding the arrival of the injured sumitra to civil hospital, bhuna. dr. d.l. bansal medical officer, general hospital fatehabad (pw9) had conducted postmortem examination on the dead body of balraj and found the following injuries on his person :- “1. a lacerated wound oval in shape with inverted margins of the size of 2 cms x 1 cms situated on posterior side 12 cms away from the mid line on the right side just below the angle of scapula on the right side. corresponding hole was present in the shirt. on probing the wound, it was going upward medically and coming out through another wound. 2. a lacerated wound oval in shape with everted margins 3 cms x 2 cms on right side of sterno clavicular end, half cm above the end and 1 cm lateral to mid line. corresponding hole was present in the shirt. on dissection the thoracic cavity was found full of blood. fracture of fourth, fifth and sixth ribs were found on the right side, anteriorly and fracture of external end of clavicle on right side. upper part of right lung was found lacerated. 3. an abrasion 3 cms x 1 cm, 2 cms below the right eye on dissection infiltration of blood was found in the underlying tissues.” he has also proved the copy of the postmortem report ex.p7/a and diagram showing seats of injuries ex.p8/a. he has further deposed that the cause of death, in his opinion was haemorrhage and shock due to fire arm injury which was ante mortem in nature and sufficient to cause death in ordinary course of nature. jag ram (pw10) is the complainant. c. baldev raj (pw11) had handed over the parcel containing belongings of the deceased to the investigating officer and proved the recovery memo ex.p9/a. he has also proved the copy of the fir no.224 ex.p7. ugc jai kishan (pw12) is a formal witness and tendered into evidence his affidavit ex.p10. dr. dadich, medical officer general hospital, fatehabad has medico-legally examined sumitra daughter of kanshi ram and found the following injuries on her person :- “1. a lacerated wound size 4 cms x 2 cms on the middle end of left eye extending up to fore-head. bleeding was present. left eye was swollen upper eye lid and medeal canthus of eye was also lacerated.” he has also proved the copy of the mlr ex.p11. c. ran singh (pw14) is the formal witness. he has tendered his affidavit ex.p13. dr. ranjna sharma, city hospital, palwal (pw15) has treated the injured sumitra at medical college and hospital, rohtak. he has placed on record the bed head ticket ex.p14 and operation notes ex.p15. sumitra (pw16) is the injured witness. ram murti (pw17) is one of the eye witnesses of the occurrence. ram sarup (pw18) is the witness to the recovery of articles from the spot. sanjeev kumar (pw19) is the photographer and he has proved the photographs ex.p30 to ex.p32 and negatives thereof ex.p33 to ex.p35. partap singh (pw20), a member panchayat is the witness to the recovery of the country made pistol of .315 bore from the possession of the accused nanu ram along with live cartridge of the same bore. gopal (pw21) is the witness to the recovery of country made pistol, two live cartridges and one fired cartridge from the possession of the accused sahab ram. si baljeet singh (pw22) is the investigating officer of the case. asi madan lal (pw23) has proved the statement of sumitra recorded by him at medical college and hospital, rohtak. when examined under section 313 cr.p.c. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. sahab ram accused further explained as under :- on 15.11.1996, balraj armed with pistol, ram sarup and hoshiar singh armed with lathi and gandasi intercepted me at about 4.00 p.m. in the street and they caused injuries to me. i struggled with balraj and in that process, the pistol of balraj fell down. ram sarup and hoshiar singh continued causing injuries to me and in order to save myself i lifted the pistol of balraj which was lying on the ground and fired a shot which hit balraj who was attempting to hit me with a brick. nanu, kanshi and dholu ram were not present at that time. i have been falsely implicated in this case. the remaining accused pleaded their false implication in the case and that they were not present at the spot. in defence, they examined dr.. b.l. bagri (dw1), who medicolegally examined sahab ram on 16.11.1996 and observed the following injuries on his person :- “1. a lacerated wound 3 cms x cm was on the anterior aspect of inter parietal region slight swelling was present which was tender to touch and obliquely placed. x-ray was advised and referred to the surgeon. 2. incised wound 3 x 1 cms was on the posterior aspect and just above the left elbow. swelling around was present which was tender to touch. bleeding was present and obliquely placed. x-ray was advised and referred to the ortho surgeon. corresponding tear was present on the shirt. 3. incised wound 6 x 2 cms was just above the left inguinal region. depth was not measured. muscles were seen which were tender to touch and obliquely placed. x-ray was advised and referred to the surgeon. corresponding tear were present on the underwear and pyjama. 4. lacerated wound 3/4th x cm was on the lateral and lower 1/3rd of right thigh and also there was linear abrasion of 2 cms in continuation of the wound on the upper part. margins were inverted. bleeding was present and tender to touch. x-ray was advised and referred to the ortho surgeon. corresponding tear were present on the pyjama.” he has also proved the copy of the mlr ex.dx, bed head ticket ex.dx/1. he has further deposed that on receipt of x-ray report, fracture of humerous left was found which was grievous in nature. the trial resulted into conviction. arguments heard. record perused. the prime contention raised by the learned counsel for the appellants is that nanu ram, dholu ram and kanshi ram were not present at the time of occurrence and the occurrence took place between sahab ram on one side and the deceased balraj, ram sarup and hoshiar singh on the other side. according to the accused, the complainant party intercepted him and caused him injuries, he struggled with balraj and in that process pistol of balraj had fallen down, whereupon, he lifted the pistol of balraj singh and fired a shot at him in his private defence when the latter had tried to hit him with a brick. now the question arises, “whether kanshi ram, nanu ram and dholu ram were present at the spot?” in order to establish their presence, besides the testimony of jagaraj (pw10) and ram murti (pw17), we have also the evidence of sumitra, a child witness, who had appeared as pw-16. all of them have consistently stated that all the accused were hiding themselves behind the heap of bricks and laying ambush. they were armed with weapons and on seeing the deceased balraj, they came out from behind the heap. though, kanshi ram, who was also holding a fire arm did not fire a shot, yet, he gave a lalkara instigating the other accused to attack, whereupon, the accused dholu ram caught hold of balraj. sahab ram fired a shot at balraj, whereas, nanu ram had also fired which could not hit balraj, but hit sumitra in her left eye. barring some minor discrepancies in the statements of the witnesses, they are quite consistent with regard to time, place and the manner in which the occurrence took place. though, there is discrepancy in the manner of gripping the deceased by the accused dholu ram, yet this minor discrepancy is not sufficient to discredit or impeach his testimony as well as the testimony of other witnesses, because ram murti (pw7) and jagraj (pw10) have consistently stated that dholu ram had caught hold of balraj. it has also come in evidence that when balraj after getting himself free from dholu ram tried to escape, then he was obstructed by nanu ram and laid balraj on the ground and thereafter he was fired by the accused sahab ram by taking out pistol from his dub. the story as set up by the prosecution does not smack of any exaggeration as there is strong motive inviting the accused to cause injuries to balraj. it has also come in evidence that few months prior to the occurrence, sahab ram had caused injuries to bhuri devi wife of jag ram regarding which, a case was registered against sahab ram. the accused party wanted the case to be compromised but they failed in their aim. they developed annoyance against the complainant party. the fir with regard to the registration of the case against sahab ram on 7.10.1996 has been proved on the record. as such, the argument that the motive is missing in the case is devoid of any merit. as regards the argument with regard to doubtful presence of the witnesses at the spot, it may be observed that the presence of sumitra at the spot cannot be doubted as she is sufferer of the fire shot by nanu ram. she has no reason to depose against him and it is not proved that she suffered injury on her left eye in some other occurrence. moreover, the occurrence has not been disputed. as regards the presence of jag ram (pw10) he has categorically stated that at the time of occurrence he was coming from his fields dabarwala towards his house and was at a distance of 3-4 killas from the chowk where the occurrence had taken place. jag ram (pw10) has given minute details of the occurrence which find corroboration from ram murti (pw17). ram murti (pw17) has stated that he had crossed balraj and he reached the place of occurrence on hearing his cries. mere fact that he did not intervene to save balraj is no ground to deny his presence at the spot. the courage and the conduct of the persons to react to an incident varies from man to man and the circumstances in which the occurrence took place. the accused were fully armed and could also react to the action of ram murti if he had taken side of the deceased. the mere fact that he was not associated by the investigating officer at the time of inquest also is not sufficient circumstance to doubt his presence at the spot. since the inquest proceedings were held by the investigating officer during night time and he had reached the place of occurrence after the arrival of the police at the spot, therefore, inquest proceedings might have been completed before his arrival at the place of occurrence. sumitra (pw16) being a child and competent witness to disclose about the event which took place in her presence has been able to face cross-examination and her testimony also stands corroborated by the medical evidence. in her oral testimony, she has stated that on hearing cries as soon as she came out from her house, she saw balraj lying on the ground near the house of kalu. nanu ram armed with pistol, kanshi ram armed with gun, dholu ram empty handed and sahab ram armed with pistol were present at the place of occurrence. nanu ram fired a shot from his pistol towards balraj, but it hit on her left eye. the fir in this case is prompt one. the occurrence had taken place at 5.30 pm on 15.11.1996. the complainant must have taken some time to take stock of the situation, took the injured to the hospital and to take care of the deceased. the statement of the complainant is alleged to have been recorded and completed at 9.30 pm, on the basis of which fir ex.p5 was registered at 9:50 pm. according to c. rohtash (pw5), he had delivered the special report ex.p5 to the illaqa magistrate at 10.50 pm. though the special report mentions the time of its arrival at 1.30 am on 16.11.1996, but it depends upon, as to if the magistrate was at home at the time when c.rohtash (pw5) reached the residence of the illaqa magistrate. it appears that illaqa magistrate mentioned the time when he was actually received the report from the inmates of the house. consequently, from the aforesaid evidence led by the prosecution, we are of the consistent opinion that all the accused were present at the spot and participated in the commission of the crime. the other argument is that nanu ram never caused any bullet injury to sumitra (pw16) and it is a made up story. actually, he was not present at the spot. in this regard it may be observed that sumitra (pw10) had suffered injury on her eye which is reproduced as under :- “1. a lacerated wound size 4 cms x 2 cms on the middle end of left eye extending up to fore-head. bleeding was present. left eye was swollen upper eye lid and medeal canthus of eye was also lacerated.” on examination of the injury, it was found to be bullet injury. dr. ranjana sharma, who treated sumitra (pw16) while appearing in the witness box as pw-15 disclosed that she had taken out a hard metallic object from the wound i.e. left eye of sumitra. this bullet was sent to the forensic science laboratory in a sealed parcel along with pistol of .315 bore recovered from nanu ram, whereupon the ballistic expert vide his report ex.p66 observed that bullet taken out of the body of sumitra marked as bc/1 and pistol recovered from nanu ram marked as w/1 when compared, then it was found that bullet marked bc/1 has been fired from country made pistol marked as w/1 and not from any other fire arm even of the same make or bore/caliber. thus, this scientific evidence corroborates the prosecution version and also the ocular version of sumitra that nanu ram had fired a shot which hit in her eye. it is also pertinent to mention here that though the accused have tried to explain the injuries caused to balraj in a scuffle, yet, they have not explained the injury suffered by sumitra which also goes a long way to prove the offence against the accused. the other contention as advanced by the learned counsel for the appellants is that the prosecution has failed to prove the manner of occurrence. actually, the occurrence did not take place as stated by the prosecution. in this regard we again need to discuss the testimony of jag ram (pw10) who disclosed that balraj was in standing condition when he suffered injuries. the injuries found on the person of balraj were not possible if he was in a standing condition. it was further argued that there are contradictions in the statements of both the witnesses, namely, jag ram (pw10) and ram murti (pw17) on that point. though the prosecution has not set up any case regarding any struggle between the accused and the deceased, but a piece of cloth was recovered from the spot at a distance of 120 meters, therefore, the story of the prosecution dashes to the ground. having considered the aforesaid contentions, we do not countenance the same. the witnesses are neither expected nor required to give photographic version of the occurrence. the prosecution is categorical in its version to the effect that balraj was waylaid by the accused persons and dholu ram had caught hold of him. however, when balraj after getting himself free from dholu ram and tried to run away towards the house of kalu ram, the accused nanu ram intercepted and laid him on the ground. thereafter, sahab ram had fired a shot killing him at the spot. so, these circumstances clearly make out the manner in which the occurrence had taken place. it is not a case where the occurrence had taken place when the victim was in a stationary stage but he suffered injuries at the time when he tried to run away after getting himself free from the grip of dholu ram. thus, the deceased was in moving condition; some time he laid on the ground that some times, he tried to rush therefore, he must have suffered the injury in that process and in such situation, it would be difficult to say that he was in standing condition when he suffered the injury. it would also be pertinent to mention here that during scuffle between the accused and the victim, in a bid to escape, the shirt of the accused sahab ram might have been torn, therefore, recovery of torn piece of shirt cannot be made a ground to discard the consistent statements of the eye witnesses. as regards the plea of private defence as set out by sahab ram in his statement under section 313 cr.p.c. as well as the plea which was suggested to the witnesses, we, on examination of the entire evidence, are hesitant to accept such plea. this defence plea stands falsified from the fire arm injuries suffered by balraj as well as suffered by sahab ram. according to dr. d.l. bansal (pw9) and copy of the postmortem report exc.p7/a, it has come out that the entry wound on the person of balraj deceased was of the size of 2 cms x 1 cms and the exit wound was 3 cms x 2 cms. this injury is revealed to be a bullet injury whereas the injury no.4 on the person of sahab ram which is projected by him to have been suffered at the spot is opined to be fire arm injury by dr. b.l. bagri (dw1). it is definite that this injury is measuring cms x cms on the lateral and lower 1/3rd of the right thigh and there is also linear abrasion of the size of 2 cms. from the size of the injury, it is impossible to form an opinion that such injury could be caused with a bullet of .315 bore pistol with which injury was caused to the deceased. it is not the case of the defence that balraj was having a pistol of .12 bore. had the fire arm injury been caused to sahab ram in the same transaction, then he must have suffered the bullet injury of the same size which balraj had suffered. even otherwise, on critical examination of the injury suffered by sahab ram as well as the duration of the injuries, the same cannot be said to have been suffered by him during the same transaction. sahab ram reached the general hospital, hisar after about 12 hours of the suffering of the injuries. the doctor disclosed in his report ex. dx that bleeding was present in injuries no.2 and 4 which is alleged to be a fire arm injury. the bleeding is bound to stop from such injuries after few hours and as such the injury cannot be said to have been suffered by him at the time of occurrence. dr. b.l. bagri (dw1) had admitted during cross-examination that such type of injuries were possible just one hour prior to the examination of the injured. thus, this admission by dr. b.l. bagri (dw1) creates doubt about the time and duration of the injury suffered by the accused sahab ram. even otherwise, since there was neither exit wound of bullet on the person of sahab ram nor it is established that bullets or pellets were found in the body of sahab ram, therefore, it also creates doubt if injury no.4 was the result of fire arm. while examining the case from another angle, the defence version as set up by the accused is that after the complainant party caused him injuries, and balraj was bent upon to give him a brick blow, then he fired with the pistol which balraj was holding and it had fallen down. however, there is neither any evidence nor it is mentioned in the defence plea that pistol taken by the accused sahab ram belonged to balraj. moreover, if the story is believed, then sahab ram must have reloaded the pistol before firing the same at balraj. but, according to the defence version ram sarup and hoshiar singh were causing injuries to sahab ram and in such a situation, ram sarup and hoshiar singh, who were holding sticks in their hands, would not have allowed sahab ram to reload the pistol. another serious circumstance which belies the defence vesion is that according to dr. b.l. bagri (dw1), the accused sahab ram had suffered fracture of humerous left, therefore, in such a situation, he having suffered fracture to his hand, it was not possible for him to reload the pisto-land attack balraj after he suffered such serious injury, rather it appears that sahab ram had caused injuries to balraj but in order to make a false defence, he later on fabricated the injuries and went to the doctor of his choice and convenience at hisara while ignoring the doctors nearest to his village. consequently, we are not hesitant to hold that the plea of right of private defence, as set up by the accused is not available to them, rather from the entire evidence as set out by the prosecution, all the four accused, with a view to take vengeance on registration of the case against sahab ram, armed with deadly weapons, in furtherance of their common intention ambushed behind the heap of bricks and they appeared they appeared at the scene as soon as balraj reached near them. kanshi ram raised lalkara and thereafter dholu ram caught hold of balraj, when he tried to run away, then he was intercepted by the accused nanu ram and was laid down on the ground and thereafter when he tried to flee after coming out of the grip of nanu ram, sahab ram had fired a shot at balraj. nanu ram also took out pistol from his dub and fired at him, but the bullet missed him and hit simitra minor in her left eye. the defence set up by the accused appears to have been concocted later on. as regards quantum of sentence, it may be observed that as a result of diabolic act of the accused, an young girl of 9 years lost her eye and balraj was killed at the spot, therefore, we do not deem it expedient to take a lenient view in the matter. resultantly, finding no merit in the appeal, the same is dismissed. before parting with the judgment, it may be observed that the ruthless attack made by the accused nanu ram, by way of firing, which hit in the left eye of sumitra, a minor child, rendering her blind by one eye, has made rest of her life as hell and their parents harping for its correction and disgusted over her matrimonial prospects, therefore, it would be expedient and in the fitness of things if the accused is directed to compensate the injured sumitra. consequently, we direct the accused nanu ram to pay a sum of rs.1,00,000/- for the injury caused to her, on account of compensation along with interest @ 10% per annum from the date of incident.

Judgment:

A.N. Jindal, J.

Accused-appellants Sahab Ram, Nanu Ram, Kanshi Ram and Dholu Ram sons of Dungar, residents of village Tibbi, Fatehabad were prosecuted under Sections 302/307/34 IPC and 25/27 Arms Act, for causing death of Balraj son of Jag Ram and attempting to cause death of Sumitra daughter of Kanshi Ram. Consequently, they were convicted vide judgment dated 18.12.2001 passed by the learned Additional Sessions Judge, Fatehabad and sentenced as under :-

Sahab Ram

U/s 302 IPC: Rigorous imprisonment for life and to pay fine of Rs.10,000/-.

Nanu Ram, Kanshi Ram and Dholu Ram

U/s 302/34 IPC: Rigorous imprisonment for life and to pay fine of Rs.10,000/- each

Sahab Ram and Nanu Ram

U/s 25 Arms Act: Rigorous imprisonment for two years and to pay fine of Rs.5000/- each.

The allegations in nutshell are that on 15.11.1996, at about 5.30 PM, the complainant Jag Ram (herein referred as, 'the complainant') was returning from his field at Dabarwala for his house. Balraj son of the complainant was going to the shop situated in the main chowk of the village for purchasing 'Biri' and when he was passing in front of the house of Kalu alias Umrav Singh and was near the house of Aad Ram, all the accused, who were ambushing behind the heap of bricks, came out. Kanshi Ram was having his licenced gun. On seeing Balraj, Kanshi Ram exhorted that he be not allowed to go scot free. At this, Dholu Ram caught Balraj, but he managed to get himself free from his clutches and tried to flee towards the street of Harijans. Nanu Ram came in front of Balraj and laid him on the ground, however, Balraj tried to crawl towards the house of Kalu Ram. Sahab Ram, took out pistol from his dub and fired a shot which hit at his (Balraj) back. Nanu Ram also fired at Balraj, but it missed and hit Sumitra minor daughter of Kanshi Ram on her left eye. Kanshi Ram pointed his gun towards the complainant, but in the meantime, Diwan Chand grand-son of the complainant, and Ram Murti came at the spot and raised alarm. At this, all the four accused fled away from the spot along with their respective weapons. Kanshi Ram took her daughter Sumitra to the Civil Hospital, Bhuna.

The motive behind the occurrence is that about 1 months prior to the occurrence, the accused Sahab Ram had inflicted knife injury to Bhuri Devi wife of the complainant for which a case under Sections 324/325 IPC was registered. The accused Sahab Ram and his brothers were putting pressure upon the complainant for a compromise but on refusal, Sahab Ram and his brothers felt annoyed with them.

On the basis of the aforesaid statement Ex.P4 made by Jagram before SI/SHO Baljit Singh, FIR Ex.P5 was registered. The Investigating Officer reached the spot and prepared the inquest report Ex.P6/A, sent the dead body of Balraj to General Hospital, Fatehabad for postmortem examination. He also took blood stained earth, a torn piece of cloth, a pair of chappals belonging to the deceased Balraj, a pair of shoes (Juti) belonging to the accused Sahab Ram, woollen chadar belonging to the deceased, another woollen chadar belonging to the accused Nanu Ram and a woollen blanket belonging to accused Dholu Ram, which were lying at the spot, into possession vide recovery memos Ex.P17, Ex.P24, Ex.P22, Ex.P20, Ex.P19, Ex.P26 and Ex.P28 respectively. He also prepared rough site plan Ex.P44 of the place of occurrence. Thereafter, he went to the Civil Hospital, Fatehabad for recording statement of Sumitra where she was reported to have been referred to the General Hospital, Hisar and thereafter she was referred to PGI, Rohtak. On 19.11.1996, Investigating Officer SI Baljit Singh visited Medical College and Hospital, Rohtak for recording statement of Sumitra, but she was declared unfit to make the statement. However, her statement was recorded on 22.11.1996 by ASI Madan Lal who also took the bullet which was taken out from her eye, into possession vide memo Ex.P58.

On the same day, the Investigating Officer received secret information that accused Kanshi Ram and Dholu had gone to village Ghotru, at which he reached village Ghotru and arrested Kanshi Ram and Dholu. Accused Kanshi Ram suffered a disclosure statement Ex.P46, pursuant to which he got recovered double barrel gun, three live cartridges and licence of the gun which were taken into possession vide recovery memo Ex.P52.

On 20.11.1996, the Investigating Officer arrested the accused Nanu Ram from near the bus stand of village Tibbi. On his personal search. 315 bore country made pistol was recovered from the right dub of the pyjama and a live cartridge was also recovered from the right side of the pocket of his shirt. The sketch of the pistol Ex.P36 was prepared and thereafter the same along with the live cartridge were taken into possession vide memo Ex.P38. Accused Nanu Ram could not produce any licence for keeping the pistol and the cartridge in his possession, as such the Investigating Officer sent ruqa Ex.P55 to the police station, on the basis of which formal FIR Ex.P56 under Section 25 Arms was registered against him.

On 23.11.1996, on receipt of secret information, the Investigating Officer again went to village Tibbi and arrested the accused Sahab Ram from his cotton field. He also suffered disclosure statement Ex.P39 pursuant to which he got recovered pistol, two live cartridges and one empty cartridge in his house in a room wrapped in some cloth, from the disclosed place, the same were also taken into possession vide recovery memo Ex.P41. Investigating Officer also sent ruqa Ex.P59 to the police station on the basis of which a separate FIR Ex.P60 under the Arms Act was registered against him. It is pertinent to mention here that separate challans for the offence punishable under Section 25 of Arms Act were filed against the accused Sahab Ram and Nanu Ram which were tried by the court along with the main case

The accused were charged under Sections 302/307/34 IPC, and also under Section 25 of the Arms Act, to which they pleaded not guilty and claimed trial.

During trial, the prosecution examined Dr. P.L. Jindal (PW1) who has radiologically examined dead body of Balraj and proved x-ray report Ex.P1 and skiagram Ex.P2. C. Radhey Sham (PW2) Draftsman has proved the scaled site plan Ex.P3. Sunder Lal (PW3) has proved the arms licence issued to Kanshi Ram for his gun on 1.6.1993. ASI Shiv Kumar (PW4) has proved the FIR Ex.P5. C. Rohtash (PW5) has stated that he delivered the special report Ex.P5 to the learned Illaqa Magistrate on 15.11.1996 at 10.50 PM. HC Ram Mehar (PW6) has proved the photo copy of the FIR No.224 dated 7.11.1996 Ex.P7. He has also deposed regarding deposit of the case property with him and sending the same to the Forensic Science Laboratory. He has also tendered his affidavit Ex.P8. C. Harai Parkash (PW7) has also proved his affidavit Ex.P9 in evidence. Dr. R.C. Goyal (PW8) has proved ruqa Ex.P4/A sent to the Station House Officer, Police Station Bhuna regarding the arrival of the injured Sumitra to Civil Hospital, Bhuna.

Dr. D.L. Bansal Medical Officer, General Hospital Fatehabad (PW9) had conducted postmortem examination on the dead body of Balraj and found the following injuries on his person :-

“1. A lacerated wound oval in shape with inverted margins of the size of 2 cms x 1 cms situated on posterior side 12 cms away from the mid line on the right side just below the angle of scapula on the right side. Corresponding hole was present in the shirt. On probing the wound, it was going upward medically and coming out through another wound.

2. A lacerated wound oval in shape with everted margins 3 cms x 2 cms on right side of sterno clavicular end, half cm above the end and 1 cm lateral to mid line. Corresponding hole was present in the shirt. On dissection the thoracic cavity was found full of blood. Fracture of fourth, fifth and sixth ribs were found on the right side, anteriorly and fracture of external end of clavicle on right side. Upper part of right lung was found lacerated.

3. An abrasion 3 cms x 1 cm, 2 cms below the right eye on dissection infiltration of blood was found in the underlying tissues.”

He has also proved the copy of the postmortem report Ex.P7/A and diagram showing seats of injuries Ex.P8/A. He has further deposed that the cause of death, in his opinion was haemorrhage and shock due to fire arm injury which was ante mortem in nature and sufficient to cause death in ordinary course of nature.

Jag Ram (PW10) is the complainant. C. Baldev Raj (PW11) had handed over the parcel containing belongings of the deceased to the Investigating Officer and proved the recovery memo Ex.P9/A. He has also proved the copy of the FIR No.224 Ex.P7. UGC Jai Kishan (PW12) is a formal witness and tendered into evidence his affidavit Ex.P10. Dr. Dadich, Medical Officer General Hospital, Fatehabad has medico-legally examined Sumitra daughter of Kanshi Ram and found the following injuries on her person :-

“1. A lacerated wound size 4 cms x 2 cms on the middle end of left eye extending up to fore-head. Bleeding was present. Left eye was swollen upper eye lid and medeal canthus of eye was also lacerated.”

He has also proved the copy of the MLR ex.P11. C. Ran Singh (PW14) is the formal witness. He has tendered his affidavit Ex.P13. Dr. Ranjna Sharma, City Hospital, Palwal (PW15) has treated the injured Sumitra at Medical College and Hospital, Rohtak. He has placed on record the bed head ticket Ex.P14 and operation notes Ex.P15. Sumitra (PW16) is the injured witness. Ram Murti (PW17) is one of the eye witnesses of the occurrence. Ram Sarup (PW18) is the witness to the recovery of articles from the spot. Sanjeev Kumar (PW19) is the photographer and he has proved the photographs Ex.P30 to Ex.P32 and negatives thereof Ex.P33 to Ex.P35.

Partap Singh (PW20), a member Panchayat is the witness to the recovery of the country made pistol of .315 bore from the possession of the accused Nanu Ram along with live cartridge of the same bore. Gopal (PW21) is the witness to the recovery of country made pistol, two live cartridges and one fired cartridge from the possession of the accused Sahab Ram. SI Baljeet Singh (PW22) is the Investigating Officer of the case. ASI Madan Lal (PW23) has proved the statement of Sumitra recorded by him at Medical College and Hospital, Rohtak.

When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Sahab Ram accused further explained as under :-

On 15.11.1996, Balraj armed with pistol, Ram Sarup and Hoshiar Singh armed with lathi and gandasi intercepted me at about 4.00 p.m. in the street and they caused injuries to me. I struggled with Balraj and in that process, the pistol of Balraj fell down. Ram Sarup and Hoshiar Singh continued causing injuries to me and in order to save myself I lifted the pistol of Balraj which was lying on the ground and fired a shot which hit Balraj who was attempting to hit me with a brick. Nanu, Kanshi and Dholu Ram were not present at that time. I have been falsely implicated in this case.

The remaining accused pleaded their false implication in the case and that they were not present at the spot.

In defence, they examined Dr.. B.L. Bagri (DW1), who medicolegally examined Sahab Ram on 16.11.1996 and observed the following injuries on his person :-

“1. A lacerated wound 3 cms x cm was on the anterior aspect of inter parietal region slight swelling was present which was tender to touch and obliquely placed. X-ray was advised and referred to the Surgeon.

2. Incised wound 3 x 1 cms was on the posterior aspect and just above the left elbow. Swelling around was present which was tender to touch. Bleeding was present and obliquely placed. X-ray was advised and referred to the Ortho Surgeon. Corresponding tear was present on the shirt.

3. Incised wound 6 x 2 cms was just above the left inguinal region. Depth was not measured. Muscles were seen which were tender to touch and obliquely placed. X-ray was advised and referred to the Surgeon. Corresponding tear were present on the underwear and pyjama.

4. Lacerated wound 3/4th x cm was on the lateral and lower 1/3rd of right thigh and also there was linear abrasion of 2 cms in continuation of the wound on the upper part. Margins were inverted. Bleeding was present and tender to touch. X-ray was advised and referred to the Ortho Surgeon. Corresponding tear were present on the pyjama.”

He has also proved the copy of the MLR Ex.DX, bed head ticket Ex.DX/1. He has further deposed that on receipt of x-ray report, fracture of humerous left was found which was grievous in nature.

The trial resulted into conviction.

Arguments heard. Record perused.

The prime contention raised by the learned counsel for the appellants is that Nanu Ram, Dholu Ram and Kanshi Ram were not present at the time of occurrence and the occurrence took place between Sahab Ram on one side and the deceased Balraj, Ram Sarup and Hoshiar Singh on the other side. According to the accused, the complainant party intercepted him and caused him injuries, he struggled with Balraj and in that process pistol of Balraj had fallen down, whereupon, he lifted the pistol of Balraj Singh and fired a shot at him in his private defence when the latter had tried to hit him with a brick.

Now the question arises, “whether Kanshi Ram, Nanu Ram and Dholu Ram were present at the spot?”

In order to establish their presence, besides the testimony of Jagaraj (PW10) and Ram Murti (PW17), we have also the evidence of Sumitra, a child witness, who had appeared as PW-16. All of them have consistently stated that all the accused were hiding themselves behind the heap of bricks and laying ambush. They were armed with weapons and on seeing the deceased Balraj, they came out from behind the heap. Though, Kanshi Ram, who was also holding a fire arm did not fire a shot, yet, he gave a lalkara instigating the other accused to attack, whereupon, the accused Dholu Ram caught hold of Balraj. Sahab Ram fired a shot at Balraj, whereas, Nanu Ram had also fired which could not hit Balraj, but hit Sumitra in her left eye. Barring some minor discrepancies in the statements of the witnesses, they are quite consistent with regard to time, place and the manner in which the occurrence took place. Though, there is discrepancy in the manner of gripping the deceased by the accused Dholu Ram, yet this minor discrepancy is not sufficient to discredit or impeach his testimony as well as the testimony of other witnesses, because Ram Murti (PW7) and Jagraj (PW10) have consistently stated that Dholu Ram had caught hold of Balraj. It has also come in evidence that when Balraj after getting himself free from Dholu Ram tried to escape, then he was obstructed by Nanu Ram and laid Balraj on the ground and thereafter he was fired by the accused Sahab Ram by taking out pistol from his dub. The story as set up by the prosecution does not smack of any exaggeration as there is strong motive inviting the accused to cause injuries to Balraj. It has also come in evidence that few months prior to the occurrence, Sahab Ram had caused injuries to Bhuri Devi wife of Jag Ram regarding which, a case was registered against Sahab Ram. The accused party wanted the case to be compromised but they failed in their aim. They developed annoyance against the complainant party. The FIR with regard to the registration of the case against Sahab Ram on 7.10.1996 has been proved on the record. As such, the argument that the motive is missing in the case is devoid of any merit.

As regards the argument with regard to doubtful presence of the witnesses at the spot, it may be observed that the presence of Sumitra at the spot cannot be doubted as she is sufferer of the fire shot by Nanu Ram. She has no reason to depose against him and it is not proved that she suffered injury on her left eye in some other occurrence. Moreover, the occurrence has not been disputed. As regards the presence of Jag Ram (PW10) he has categorically stated that at the time of occurrence he was coming from his fields Dabarwala towards his house and was at a distance of 3-4 killas from the chowk where the occurrence had taken place. Jag Ram (PW10) has given minute details of the occurrence which find corroboration from Ram Murti (PW17). Ram Murti (PW17) has stated that he had crossed Balraj and he reached the place of occurrence on hearing his cries. Mere fact that he did not intervene to save Balraj is no ground to deny his presence at the spot. The courage and the conduct of the persons to react to an incident varies from man to man and the circumstances in which the occurrence took place. The accused were fully armed and could also react to the action of Ram Murti if he had taken side of the deceased. The mere fact that he was not associated by the Investigating Officer at the time of inquest also is not sufficient circumstance to doubt his presence at the spot. Since the inquest proceedings were held by the Investigating Officer during night time and he had reached the place of occurrence after the arrival of the police at the spot, therefore, inquest proceedings might have been completed before his arrival at the place of occurrence.

Sumitra (PW16) being a child and competent witness to disclose about the event which took place in her presence has been able to face cross-examination and her testimony also stands corroborated by the medical evidence. In her oral testimony, she has stated that on hearing cries as soon as she came out from her house, she saw Balraj lying on the ground near the house of Kalu. Nanu Ram armed with pistol, Kanshi Ram armed with gun, Dholu Ram empty handed and Sahab Ram armed with pistol were present at the place of occurrence. Nanu Ram fired a shot from his pistol towards Balraj, but it hit on her left eye.

The FIR in this case is prompt one. The occurrence had taken place at 5.30 PM on 15.11.1996. The complainant must have taken some time to take stock of the situation, took the injured to the hospital and to take care of the deceased. The statement of the complainant is alleged to have been recorded and completed at 9.30 PM, on the basis of which FIR Ex.P5 was registered at 9:50 PM. According to C. Rohtash (PW5), he had delivered the special report Ex.P5 to the Illaqa Magistrate at 10.50 PM. Though the special report mentions the time of its arrival at 1.30 AM on 16.11.1996, but it depends upon, as to if the Magistrate was at home at the time when C.Rohtash (PW5) reached the residence of the Illaqa Magistrate. It appears that Illaqa Magistrate mentioned the time when he was actually received the report from the inmates of the house. Consequently, from the aforesaid evidence led by the prosecution, we are of the consistent opinion that all the accused were present at the spot and participated in the commission of the Crime.

The other argument is that Nanu Ram never caused any bullet injury to Sumitra (PW16) and it is a made up story. Actually, he was not present at the spot. In this regard it may be observed that Sumitra (PW10) had suffered injury on her eye which is reproduced as under :-

“1. A lacerated wound size 4 cms x 2 cms on the middle end of left eye extending up to fore-head. Bleeding was present. Left eye was swollen upper eye lid and medeal canthus of eye was also lacerated.”

On examination of the injury, it was found to be bullet injury. Dr. Ranjana Sharma, who treated Sumitra (PW16) while appearing in the witness box as PW-15 disclosed that she had taken out a hard metallic object from the wound i.e. left eye of Sumitra. This bullet was sent to the Forensic Science Laboratory in a sealed parcel along with pistol of .315 bore recovered from Nanu Ram, whereupon the Ballistic Expert vide his report Ex.P66 observed that bullet taken out of the body of Sumitra marked as BC/1 and pistol recovered from Nanu Ram marked as W/1 when compared, then it was found that bullet marked BC/1 has been fired from country made pistol marked as W/1 and not from any other fire arm even of the same make or bore/caliber. Thus, this scientific evidence corroborates the prosecution version and also the ocular version of Sumitra that Nanu Ram had fired a shot which hit in her eye. It is also pertinent to mention here that though the accused have tried to explain the injuries caused to Balraj in a scuffle, yet, they have not explained the injury suffered by Sumitra which also goes a long way to prove the offence against the accused.

The other contention as advanced by the learned counsel for the appellants is that the prosecution has failed to prove the manner of occurrence. Actually, the occurrence did not take place as stated by the prosecution. In this regard we again need to discuss the testimony of Jag Ram (PW10) who disclosed that Balraj was in standing condition when he suffered injuries. The injuries found on the person of Balraj were not possible if he was in a standing condition. It was further argued that there are contradictions in the statements of both the witnesses, namely, Jag Ram (PW10) and Ram Murti (PW17) on that point. Though the prosecution has not set up any case regarding any struggle between the accused and the deceased, but a piece of cloth was recovered from the spot at a distance of 120 meters, therefore, the story of the prosecution dashes to the ground.

Having considered the aforesaid contentions, we do not countenance the same. The witnesses are neither expected nor required to give photographic version of the occurrence. The prosecution is categorical in its version to the effect that Balraj was waylaid by the accused persons and Dholu Ram had caught hold of him. However, when Balraj after getting himself free from Dholu Ram and tried to run away towards the house of Kalu Ram, the accused Nanu Ram intercepted and laid him on the ground. Thereafter, Sahab Ram had fired a shot killing him at the spot. So, these circumstances clearly make out the manner in which the occurrence had taken place. It is not a case where the occurrence had taken place when the victim was in a stationary stage but he suffered injuries at the time when he tried to run away after getting himself free from the grip of Dholu Ram. Thus, the deceased was in moving condition; some time he laid on the ground that some times, he tried to rush therefore, he must have suffered the injury in that process and in such situation, it would be difficult to say that he was in standing condition when he suffered the injury. It would also be pertinent to mention here that during scuffle between the accused and the victim, in a bid to escape, the shirt of the accused Sahab Ram might have been torn, therefore, recovery of torn piece of shirt cannot be made a ground to discard the consistent statements of the eye witnesses.

As regards the plea of private defence as set out by Sahab Ram in his statement under Section 313 Cr.P.C. as well as the plea which was suggested to the witnesses, we, on examination of the entire evidence, are hesitant to accept such plea. This defence plea stands falsified from the fire arm injuries suffered by Balraj as well as suffered by Sahab Ram. According to Dr. D.L. Bansal (PW9) and copy of the postmortem report Exc.P7/A, it has come out that the entry wound on the person of Balraj deceased was of the size of 2 cms x 1 cms and the exit wound was 3 cms x 2 cms. This injury is revealed to be a bullet injury whereas the injury No.4 on the person of Sahab Ram which is projected by him to have been suffered at the spot is opined to be fire arm injury by Dr. B.L. Bagri (DW1). It is definite that this injury is measuring cms x cms on the lateral and lower 1/3rd of the right thigh and there is also linear abrasion of the size of 2 cms. From the size of the injury, it is impossible to form an opinion that such injury could be caused with a bullet of .315 bore pistol with which injury was caused to the deceased. It is not the case of the defence that Balraj was having a pistol of .12 bore. Had the fire arm injury been caused to Sahab Ram in the same transaction, then he must have suffered the bullet injury of the same size which Balraj had suffered. Even otherwise, on critical examination of the injury suffered by Sahab Ram as well as the duration of the injuries, the same cannot be said to have been suffered by him during the same transaction. Sahab Ram reached the General Hospital, Hisar after about 12 hours of the suffering of the injuries. The doctor disclosed in his report Ex. DX that bleeding was present in injuries No.2 and 4 which is alleged to be a fire arm injury. The bleeding is bound to stop from such injuries after few hours and as such the injury cannot be said to have been suffered by him at the time of occurrence. Dr. B.L. Bagri (DW1) had admitted during cross-examination that such type of injuries were possible just one hour prior to the examination of the injured. Thus, this admission by Dr. B.L. Bagri (DW1) creates doubt about the time and duration of the injury suffered by the accused Sahab Ram. Even otherwise, since there was neither exit wound of bullet on the person of Sahab Ram nor it is established that bullets or pellets were found in the body of Sahab Ram, therefore, it also creates doubt if injury No.4 was the result of fire arm.

While examining the case from another angle, the defence version as set up by the accused is that after the complainant party caused him injuries, and Balraj was bent upon to give him a brick blow, then he fired with the pistol which Balraj was holding and it had fallen down. However, there is neither any evidence nor it is mentioned in the defence plea that pistol taken by the accused Sahab Ram belonged to Balraj. Moreover, if the story is believed, then Sahab Ram must have reloaded the pistol before firing the same at Balraj. But, according to the defence version Ram Sarup and Hoshiar Singh were causing injuries to Sahab Ram and in such a situation, Ram Sarup and Hoshiar Singh, who were holding sticks in their hands, would not have allowed Sahab Ram to reload the pistol.

Another serious circumstance which belies the defence vesion is that according to Dr. B.L. Bagri (DW1), the accused Sahab Ram had suffered fracture of humerous left, therefore, in such a situation, he having suffered fracture to his hand, it was not possible for him to reload the pisto-land attack Balraj after he suffered such serious injury, rather it appears that Sahab Ram had caused injuries to Balraj but in order to make a false defence, he later on fabricated the injuries and went to the doctor of his choice and convenience at Hisara while ignoring the doctors nearest to his village.

Consequently, we are not hesitant to hold that the plea of right of private defence, as set up by the accused is not available to them, rather from the entire evidence as set out by the prosecution, all the four accused, with a view to take vengeance on registration of the case against Sahab Ram, armed with deadly weapons, in furtherance of their common intention ambushed behind the heap of bricks and they appeared they appeared at the scene as soon as Balraj reached near them. Kanshi Ram raised lalkara and thereafter Dholu Ram caught hold of Balraj, when he tried to run away, then he was intercepted by the accused Nanu Ram and was laid down on the ground and thereafter when he tried to flee after coming out of the grip of Nanu Ram, Sahab Ram had fired a shot at Balraj. Nanu Ram also took out pistol from his dub and fired at him, but the bullet missed him and hit Simitra minor in her left eye. The defence set up by the accused appears to have been concocted later on.

As regards quantum of sentence, it may be observed that as a result of diabolic act of the accused, an young girl of 9 years lost her eye and Balraj was killed at the spot, therefore, we do not deem it expedient to take a lenient view in the matter.

Resultantly, finding no merit in the appeal, the same is dismissed.

Before parting with the judgment, it may be observed that the ruthless attack made by the accused Nanu Ram, by way of firing, which hit in the left eye of Sumitra, a minor child, rendering her blind by one eye, has made rest of her life as hell and their parents harping for its correction and disgusted over her matrimonial prospects, therefore, it would be expedient and in the fitness of things if the accused is directed to compensate the injured Sumitra.

Consequently, we direct the accused Nanu Ram to pay a sum of Rs.1,00,000/- for the injury caused to her, on account of compensation along with interest @ 10% per annum from the date of incident.