As per case facts, a wireless message reported injured-Khajan Singh's admission to General Hospital Rewari on May 21, 2000, following an incident on May 20, 2000, where a dispute over ...
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Reserved on : 27.07.2026
CRA-892-DB-2005 (O&M)
Pronounced on : 07.09.2026
Uploaded on : 07.09.2026
Whether only operative part of the judgment is
pronounced or the full judgment is pronounced: operative part/full Judgment
Balwan Singh and others ...Appellant(s)
VERSUS
State of Haryana ...Respondent(s)
Reserved on : 27.07.2026
CRR-289-2006 (O&M)
Pronounced on : 07.09.2026
Uploaded on : 07.09.2026
Khajan Singh ...Petitioner(s)
VERSUS
Balwan Singh and others ...Respondent(s)
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
HON’BLE MRS. JUSTICE SUKHVINDER KAUR
Present :- Mr. R.S. Cheema, Sr. Advocate with
Mr. Ishan Khetarpal, Advocate,
Mr. Satish Sharma, Advocate,
Mr. Prince Bharol, Advocate,
for the appellants in CRA-892-DB-2005.
Mr. Kapil Aggarwal, Advocate,
for the petitioner in CRR-289-2006.
Mr. Rajat Gautam, Addl. AG Haryana.
*****
VINOD S. BHARDWAJ, J.
By a common judgment, CRA-892-DB-2005 titled as ‘Balwan
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CRR-289-2006 (O&M)
Singh and others Vs. State of Haryana’ as well as CRR-289-2006 titled as
‘Khajan Singh Vs. Balwan Singh and others’, against the judgment dated
22.11.2005 passed by Additional Sessions Judge, Rewari in Session Case
No.11 of 2000/2005 arising out of FIR bearing No. 84 dated 21.05.2000
registered under Sections 148/149/323/324/452/302 of the Indian Penal
Code, 1860 at Police Station Kosli, Rewari, are being decided.
Facts in Brief:
2. Briefly summarised, the facts of the present case are that a
wireless message regarding admission of injured-Khajan Singh and other
persons in General Hospital Rewari was received on 21.05.2000. Sub-
Inspector Harpal Singh accompanied by other police officials, rushed to the
hospital and after seeking the opinion of the attending doctor, recorded the
statement of injured-complainant/Khajan Singh. Khajan Singh alleged
therein that there is a well in their village in Nalawala Jungle and the said
well is jointly owned by him as well as the accused party. Both parties had
installed their different electric motors in the well and irrigate using their
different pipes. On 20.05.2000, they were working in their field and their
tubewell motor was running. At about 4.00 p.m., the electricity supply went
off and as a result, the tubewell motor got switched off. At that time,
accused Basti Ram, Dinesh and Ram Avtar (sons of accused-Balwan Singh)
brought an electric motor and pipes in a tractor and came to the well. They
installed the electric motor and their pipes in the well. After about half an
hour, the electricity supply was restored. There was however an electric
spark. Resultantly, the electric motor of the complainant stopped working.
Accused-Basti Ram, at the time of installation of his electric motor and
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pipes, had joined the electric wires of the electric motor in a faulty manner to
cause damage to the motor of the complainant. He noticed that the electric
wires he had separated were entangled, due to which spark happened and the
electric motor was burnt. The complainant narrated the entire incident to his
grandfather-Mool Chand. At about 8.30 p.m., when Balwan Singh arrived
there, Mool Chand complained about the said incident to him. The same
however infuriated Balwan Singh, who went back from the spot stating that
he would settle the dispute of the electric motor that day, while abusing the
complainant party.
3. After a short while, accused-Balwan Singh armed with an axe,
his son Basti Ram armed with jaily and his second son Ram Avtar armed
with Dantali arrived there. Accused- Balwan Singh dragged Mool Chand
from the verandah where he was sitting on a cot and threw him in the
common passage. Accused-Basti Ram inflicted a jaily blow on the right
thigh of Mool Chand and accused-Balwan Singh inflicted an axe blow on
the head of Mool Chand. Due to the impact of the said blow, Mool Chand
fell and became unconscious. In the meanwhile, the other accused namely
Dinesh, Rajesh, and Raj Kumar (sons of Balwan Singh) also arrived with
lathis in their hands. Accused-Raj Kumar inflicted 2-3 lathi blows on the
left arm of Mool Chand and accused-Rajesh inflicted a lathi blow on the left
eye of Mool Chand. When complainant/injured-Khajan Singh tried to rescue
his grandfather, accused-Dinesh inflicted a lathi blow on the right thumb and
head of the complainant and accused-Raj Kumar inflicted one lathi blow on
the calf of the left leg of the complainant. The fight attracted Vijay Kumar
and Jaibir, uncles of the complainant, to the place of occurrence and when
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they tried to save him, Jaibir received a Dantali blow on his left arm, left
wrist and head from accused-Ram Avtar, while accused-Rajesh inflicted a
lathi blow on the head of his uncle Jaibir. Accused-Balwan inflicted an axe
blow on the head of Vijay Kumar. The complainant party also inflicted
injuries to the accused in their self-defence.
4. Based on the aforesaid statements, the FIR was registered. All
the accused were apprehended and inquest proceedings were also conducted.
Statements of the witnesses were recorded under Section 161 Cr.P.C. and the
site plan of the place of occurrence was also got prepared. After completion
of all the other necessary formalities of the investigation, a final report under
Section 173 Cr.P.C was presented in the Court.
5. Since the offences were triable exclusively by the Court of
Sessions, the case was committed to the Court of Sessions vide order dated
03.08.2000 passed by the Additional Chief Judicial Magistrate, Rewari.
6. On finding that the accused were prima facie guilty for
commission of offences triable by the Court of Sessions, charges were
framed vide order dated 09.08.2000 to which the accused pleaded not guilty
and claimed trial.
7. To prove its case, the prosecution examined the following 13
witnesses:-
PW-1 Dr. Karan Singh.
PW-2 Inspector Tula Ram.
PW-3 Dr. P.D. Mehra.
PW-4 Complainant/injured-Khajan Singh.
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PW-5 Om Parkash (eye witness).
PW-6 HC Bhagat Singh.
PW-7 C. Kaidar.
PW-8 C. Dharampal.
PW-9 Injured-Jaibir.
PW-10 HC Ram Saran
PW-11 SI Harpal
PW-12 Inspector Vidyanand
PW-13 C. Kanwal Singh.
Prosecution witnesses Satish and Sheotaj were given up by the
Public Prosecutor as having been won over by the accused whereas Vijay
Kumar was given up as unnecessary. Thereafter the evidence of the
prosecution was closed by the Public Prosecutor.
8. On completion of prosecution evidence, the entire incriminating
evidence was put to the accused. They denied the allegations and claimed
that they were innocent and had been falsely implicated. In their defence,
the accused examined Jeet Ram as DW-1 and closed their evidence.
9. Upon consideration of the respective arguments and
examination of the testimonies as well as the evidence on record, the trial
Court held that the prosecution was able to prove its case against
accused/Balwan Singh and Basti Ram for offences under Sections 452, 302
read with Section 34 of the Indian Penal Code, 1860 and against the
remaining accused viz. Dinesh, Ram Avtar, Rajesh and Raj Kumar for the
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offences under Sections 452, 324/323 read with Section 34 of the Indian
Penal Code, 1860 and convicted them. They were sentenced as under:-
Accused Sections Sentence and
fine
In default
Balwan Singh Section 302 read
with Section 34
I.P.C.
Section 452
I.P.C.
Rigorous Life
Imprisonment
and fine of
Rs.2000/- each.
RI for a period of
1 year each
To further
undergo RI for a
period of 06
months each.
----
Basti Ram
Dinesh Sections 323,
324 read with
Section 34 I.P.C.
and Section 452
of the Indian
Penal Code,
1860.
RI for a period of
06 months under
Section 323 read
with Section 34
I.P.C.
AND
RI for a period of
01 year under
Section 324 read
with Section 34
I.P.C. and fine of
Rs.500/- each.
AND
RI for a period of
01 year each
under Section
452 I.P.C.
To further
undergo RI for a
period of two
months each.
Ram Avtar
Rajesh
Raj Kumar
10. Aggrieved thereof, the convicts have preferred CRA-892-DB-
2005 whereas CRR-289-2006 has been preferred by the complainant
impugning the judgment and seeking imposition of higher punishments upon
the convicted accused and also for conviction of remaining accused for
commission of offence under Section 302 read with 34 of the Indian Penal
Code, 1860 as well.
Arguments on behalf of the appellant-accused:.
11. Learned Senior counsel for the appellant contends that the
present case reflects a vexatious implication of all the family members. The
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complainant has chosen not to give a truthful account of the incident and has
instead resorted to making attributions of specific injuries. The incident has
thus been exaggerated not only in terms of the mode and manner but also in
terms of the implication and attribution to spread the net wide. A trait which
is common and widely abused.
12. Learned Senior Counsel for the appellants-accused has argued
that the crucial question which needs examination by this Court is as to
whether accused/Balwan Singh son of Chiranji Lal and Basti Ram son of
Balwan Singh are liable to be convicted for commission of offence under
Section 302 read with Section 34 of the Indian Penal Code, 1860 or it would
be falling in any of the exceptions. He further contends that the second issue
that arises for determination is as to whether the conviction of the
appellants/Dinesh, Ram Avtar and Rajesh (all sons of Balwan Singh) and
Raj Kumar son of Sultan Singh for commission of offence under Section
324/34 of the Indian Penal Code, 1860 is sustainable considering that no
grievous injury has been attributed to the aforesaid accused persons. The
third issue which needs determination is as to whether the conviction of the
accused/Basti Ram and Balwan Singh for offence under Section 452 of the
Indian Penal Code, 1860 is made out against the accused persons since the
place of occurrence has not been proved and determined.
13. He contends that the complainant side has not only suppressed
the genesis of the occurrence but also shifted the origin of the incident to the
residential house of Mool Chand, whereas no incident took place within the
precincts of the house of Mool Chand. It is argued that the evidence rather
indicates it to be a case of free fight. The injuries on the persons of Balwan
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Singh, Dinesh and Basti Ram have not been explained by the prosecution.
While Balwan Singh sustained one blunt injury, Dinesh sustained three blunt
injuries and Basti Ram also sustained two blunt injuries.
14. It is contended that the flaws in the case of the prosecution can
well be gauged from the fact that the motive attributed for commission of the
offence is alleged to be arising on account of burning of the electric motor
belonging to the complainant party. He contends that if the electric motor of
the complainant party sustained damage on account of a perceived faulty
connections/wire settings done by the accused-appellants, under such
circumstances, the motive would lie with the complainant party to open an
attack on the appellants instead of the appellants causing any injury. He
submits that no evidence has ever been led by the respondents to prove as to
whether the electric motor even sustained any damage in the aforesaid
alleged incident or not. Under the given circumstances, the motive has been
wrongly assumed against the appellants but the onus has not been discharged
by the prosecution.
15. It is submitted that the house of Mool Chand (since deceased) is
stated to be the starting point of the aggression by the prosecution and he
was allegedly dragged into the street where the injuries were inflicted. The
same is incorrect and the incident took place in the street itself. The
unscaled site plan Ex. PY and the scaled site plan Ex. PT have been prepared
as per the description given by the complainant party. Undisputedly, Nohra
of appellant-accused/Balwan Singh is situated right opposite to the house of
Mool Chand. It is submitted that the site plan does not demonstrate any
signs of any scuffle/drag having taken place from the house of Mool Chand
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to the street, hence, apart from a self serving statement, there is no evidence
to corroborate the same. It is thus contended that when the prosecution has
not been able to refer to any corroborative evidence to establish the
occurrence of the event at the place alleged, it cannot be a fact presumed.
The appellants having specifically disputed the place of occurrence, the
charge for offence under Section 452 of the Indian Penal Code, 1860 cannot
be deemed to have been proved by a mere oral testimony.
16. Adverting to the issue as to whether the appellants ought to be
convicted for offences under Section 302/34 of the Indian Penal Code, 1860
(against accused Balwan and Basti Ram) and as to whether the other accused
could be punished for offence under Section 324/34 of the Indian Penal
Code, 1860 or not, counsel draws attention of the Court to the injuries
sustained by the parties. Learned Senior counsel has handed over a chart
with the roles and injuries suffered by the victims, as per their respective
MLRs. The State counsel as well as the counsel for the complainant-
petitioner in CRR-289-2006 have admitted the chart to be correct. The roles
of the accused and injuries caused to the victims are tabulated as under:-
Name and weapon Role Seat and nature of
injuries
Balwan Singh
(Axe, Ex.P3)
a) Pulled/dragged Mool
Chand from verandah
to outside in the street.
b) Axe blow on the head
of deceased Mool
Chand.
c) Axe blow on the head
of Vijay Kumar.
No injuries
Lacerated wound on left
parietal region 7 x 1.5 x 4
cm (fatal- to Mool
Chand).
Incised wound on left
parietal region above left
ear 4 x 8 x 1.5 cm
(to Vijay Kumar).
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Dinesh
(Lathi Ex.P1)
a) Lathi blow on the right
hand of PW4 Khajan
Singh;
b) Lathi blow on the head
of Khazan Singh;
Swelling and blueness on
right thumb (to Khajan
Singh).
Lacerated wound left
parietal region 5 x 1.5 x 2
cm (to Khajan Singh).
Basti Ram
(Jaili Ex.P4)
Inflicted jaili blow on the
right thigh of deceased
Mool Chand.
Penetrating wound with
irregular margins on right
thigh lower 1/3rd 2 x 1 x
3 cm. (to deceased/Mool
Chand).
Ram Avtar
(Dantali Ex.P6)
2/3 blows on the left arm,
left hand and head of
Jaibir.
Contusion over left
forearm.
Contusion with swelling
left forearm proximal
below elbow 3 x 3 cm.
Lacerated wound - left
parieto-occipital region 2
x 2 x 1.5 cm.
Abrasion over left fronto-
parietal region 1 x 1 cm.
Rajesh
(Lathi Ex.P2)
a) Lathi blow on the left
eye of Mool Chand.
Left with blueness, eye
tissue bulging. Eye
swelling out with
bleeding (to Mool
Chand).
Diffuse blueness over
upper lid, lower lid and
on left
temporomandibular
region of face
Lacerated wound - left
parietooccipital region 2
x 2 x 1.5 cm (to Jaibir)
Both PWI (MLR) and PW3 (Autopsy) admitted that
injury on left eye of deceased could be by way of
impact of head injury
b) Lathi blow on the head
of Jaibir.
Rajkumar
(Wood Chiran Ex.P5)
a) 2/3 lathi blows on the
hands of Mool
Chand;
b) Lathi blow on the left
calf of Khazan Singh
Diffused swelling over
left wrist joint upto left
forearm (to Mool
Chand).
Contusion with redness
on popliteal region of left
leg 10 x 2 cm (to Khajan
Singh).
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17. It is further submitted that in view of the injuries as above, the
offence under Section 302 of the Indian Penal Code, 1860 is not made out.
He contends that even though Balwan Singh was stated to be armed with an
axe but only a solitary injury from the blunt side of the axe is attributed to
him to deceased/Mool Chand. There was no repeat injury caused to the
deceased by Balwan Singh. The second injury i.e. an incised wound on
Vijay Kumar is even though attributed to him but the said injury is simple.
Even otherwise, injured/Vijay Kumar did not step into the witness box. The
nature of injury and the manner it was caused dispel existence of any intent
to cause death or to cause an injury which was likely to cause death. It is
further argued that there has been no reflection of any attributes of cruelty
and no undue advantage has also been taken.
18. The trial Court having already held Balwan Singh and Basti
Ram liable for offence under Section 302 read with Section 34 of the Indian
Penal Code, 1860, accused/Balwan Singh is the only person who is
attributed the injury under Section 324 of the Indian Penal Code, 1860.
Hence, the remaining accused ought not to be held guilty for the offence
under Section 324 with the aid of Section 34 of the Indian Penal Code, 1860
and their conviction would, at best, fall for the offence under Section 323 of
the Indian Penal Code, 1860.
19. He contends that as per the MLR, 04 injuries were sustained by
deceased-Mool Chand. As per the opinion of the Doctor, the injury viz.
swelling of left eye with blueness around, was admitted in the cross-
examination, by the Doctor to have been caused as a result of the head injury
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viz. a lacerated wound on the left parietal region alongwith diffuse swelling
and underlying hematoma, attributed to Balwan. He contends that thus there
were only three injuries on the person of the deceased-Mool Chand. The
injury of penetrating wound with irregular margins caused by Basti Ram
with a jaili was found to be simple in nature. The next injury was again a
diffuse swelling over the left wrist joint, which too was later determined to
be a simple injury. The injury of swelling over the left wrist was opined by
the Doctor to have been caused as a result of a fall and it is not as a result of
any injury caused by any person.
20. It is further argued that even though appellant/Rajesh was
attributed a lathi blow on the left eye of Mool Chand, however, the Doctor’s
opinion demolishes the allegations entirely since there was no such injury on
the body of deceased. He contends that there are further discrepancies in the
allegations so far as injury attributed to Rajesh is concerned. While Khajan
Singh alleged in his statement Ex. PD that Rajesh inflicted a lathi blow on
the head of Vijay, i.e. uncle of the complainant, in his testimony as PW-4, he
stated that the injury was caused by Rajesh on the head of his uncle Jaibir.
A similar deposition has also been made by PW-5/Om Parkash son of Prem
Singh, to the effect that the aforesaid injury on the head had been caused to
Jaibir by Rajesh. The said injury again was found to be simple.
21. Similarly, accused/Raj Kumar is alleged to have inflicted lathi
blows on the left arm of Mool Chand; however, there is no corresponding
injury on the arms of Mool Chand and the sole injury on the wrist was
opined by the Doctor to exist as a result of the fall. Hence, the complainant
party has deliberated on the allegation to match with the injuries noticed
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during the inquest proceedings, and thereafter, specific roles were attributed
to implicate the appellants-accused herein.
22. Counsel further contends that there was no premeditation. The
incident in question happened at the spur of the moment and lasted for
nearly 4-5 minutes, as is evident from the testimony of PW-5/Om Parkash.
Hence, there was no occasion for premeditation. The occurrence took place
on 20.05.2000 around 8.00 p.m. in the residential area of village Lukhi and
the houses were adjacent. Assuming that the aforesaid communication by
Mool Chand to Balwan Singh became the trigger event and the latter rushed
back to his house to come back armed with an axe to give a blow, there was
no occasion for a prior meeting of minds on the part of the accused persons.
23. It is also argued that all sons of Balwan Singh have been
implicated in the present case and roles have been attributed to them so as to
rope in the entire family. He submits that the verbal spat took place between
Mool Chand and Balwan Singh and irrespective of who triggered the event,
the accused party came to the spot and on coming to know of the same, the
complainant party also came to the spot. A free fight thus ensued. In such
circumstances, existence of a common intention would not be made out.
The individuals could at best be held accountable and liable for the
respective attribution against them.
24. Learned Senior counsel contends that in an event of accepting
the plea that there is every likelihood of a free fight between the parties and
there were no signs of any party having taken any undue advantage or
having acted with cruelty, it would fall in exceptions to Section 300 of the
Indian Penal Code, 1860. He submits further that there is only one fatal
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injury on the person of the deceased-Mool Chand and there is no repetition
of any injury and even the other persons sustained simple injuries but for a
lacerated wound on the person of Vijay. Besides, even the appellants-
accused party also sustained grievous injuries which are on the vital parts.
Balwan Singh sustained a lacerated wound horizontal wise in the midline
region of the head 4 x .2 x 2 cm in size, while Dinesh sustained swelling on
the left hand dorsum with abrasion of 1 x 1 cm on the back of the thumb
(swelling size 10 x 1 cm). Dinesh also suffered a contusion with redness on
the upper third of the left forearm (7 x 5 cm in size), along with abrasion of
3 x 5 cm in size on the left side of the back in the lumbar region. Basti Ram
had sustained contusion with redness of 7 x 5 cm in size externally placed on
the left arm and swelling with abrasion on skull in the right parietal region of
1 x 5 cm in size along with fresh bleeding. It is contended that the injuries
on the appellants were not only on the vital parts but would also give rise to
an exercise of right of private defence. It cannot be said, in the facts of the
present case, that the appellant-accused were in any manner more
advantageously placed. Since the houses of both the parties were opposite to
each other, family members may have joined in the dispute, at that point in
time without any premeditation either to separate the parties or to save by
counter attack.
25. It is further argued that since the injury in question is stated to
have been caused by the blunt side and there was no repetition of injuries
which shows that there was no intent to cause murder and that merely
because the blow proved to be fatal resulting in death, the liability for
commission of offence under Section 302 of the Indian Penal Code, 1860
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ought not to be fastened.
26. Counsel further contends that the deceased was nearly 68 years
of age at the time of the incident in question and the case would be at best
punishable under Section 304-II of the Indian Penal Code, 1860 and not
even under Section 304-I of the Indian Penal Code, 1860. It is contended
that there was neither any intention of causing death nor intention of causing
any injury as is likely to cause death, hence, Section 304-I of the Indian
Penal Code, 1860 would not be attracted and instead Section 304 (Part II) of
the Indian Penal Code, 1860 would be attracted at best, considering that the
accused were required to be aware and to have knowledge that a forceful
injury on an elderly person may lead to death.
27. He further contends that, as a matter of fact, on account of the
perceived grievance that the motor had burnt as a result of acts/omission on
the part of the appellants, hence, the complainant party had itself made a
forcible entry into the Nohra of the appellants-accused and caused injuries to
them. The investigating agency however chose not to collect evidence from
the spot and collected the evidence only from the common street. He further
contends that it is also evident from the undisputed facts that there was no
enmity between the parties and that for the last more than 15 years, they
were living amicably and without any dispute.
Arguments by the respondent(s):
28. Responding to the arguments, counsel for the respondents
contend that the prosecution witnesses have given a consistent and elaborate
account of the incident and the manner in which it took place. The accused
persons, aggrieved of the complaint lodged by deceased-Mool Chand about
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their electric motor having been burnt as a result of the acts/omissions on the
part of the accused, got infuriated and rushed back to his house and came
back accompanied by other assailants, duly armed with axe, lathis, Dantali
and jailies. Balwan Singh, along with others, pulled Mool Chand, who was
sitting on his cot in the verandah, to the street and started giving
indiscriminate beatings, including a fatal injury that was caused on the head
of the deceased. The fact that they were armed with weapons and came to
the spot shows that they shared a common intention. He contends that there
is no necessity of any premeditation and that a common intention can be
formed even at the spot. Since their act reflects unison, all the accused are
liable to be convicted for commission of offence under Section 302 read
with Section 34 of the Indian Penal Code, 1860.
29. It is also contended that the ocular version is duly corroborated
by the medical evidence which has been established on record, hence, there
is no reason as to why any benefit ought to be extended to the other accused,
who have been convicted only for commission of offence under Section 324
read with Section 34 of the Indian Penal Code, 1860. Rather, their
conviction should also be recorded for commission for offence under
Section 302 read with Section 34 of the Indian Penal Code, 1860.
30. It is also contended that there is no cross version of the incident
and it is not the case set up by the appellants herein that the complainant
party entered into the Nohra and caused any injury to them after entering
into their Nohra. In case they had any such complaint, there was no
impediment on them to file any complaint to the authorities or before the
Court of law. It is submitted that since they were the aggressors, they cannot
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CRR-289-2006 (O&M)
claim any benefit by trying to bring the case under exception four of Section
300 of the Indian Penal Code, 1860 and claim it to be a case of free fight.
31. Going by the fact that such a large number of persons have
received injuries on the side of the complainant party, merely because some
injuries have also been received by the accused herein would not dent the
case of the prosecution to extend any such benefit as claimed.
32. It is further contended by the learned State counsel that the
weapons used in the commission of the offence had been recovered at the
disclosure of the respective accused and they were found blood stained. He
contends that merely because there was a delay in forensic examination of
the stains resulting in disintegration of material, the same should not inure
any benefit to the appellants herein. It is submitted that the injuries on the
person of appellants were simple in nature, hence, it is apparent that the
appellants have taken an undue advantage of the numbers and acted cruelly
by inflicting multiple injuries on the victim party.
33. It is further submitted that the aspect of common intention can
be gauged from the fact that after the initial incident that took place near the
tube-well, they came back to their house and then opened an attack, which
shows that there was a common intention and premeditation between the
parties. Since Balwan Singh went to the house, on being apprised of the
incident by Mool Chand (since deceased), and on his return he was
accompanied by Basti Ram and Ram Avtar, the element of common
intention and pre-meditation stands revealed.
34. In rebuttal, learned Senior counsel for the appellant-accused
contends that it would be incorrect to suggest that no action was taken, as a
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matter of fact, DW-1 Jeet Ram had filed a private complaint against the
appellant-accused; however, the outcome of the aforesaid complaint has not
come forth on record.
35. No other argument has been advanced by any of the parties.
36. We have heard the learned counsel for the respective parties
and have gone through the documents appended with the instant cases.
Consideration and conclusions:
37. The questions which are required to be determined are as to
whether the offence took place in the manner as alleged, whether there was
an element of common intention between the parties rendering all of them
liable to be punished for the offence resulting in death of Mool Chand. It is
also required to be determined as to whether any exception to Section 300 of
the Indian Penal Code, 1860 is attracted and if so, what would be the offence
and liability of the accused.
38. Thus, it would become crucial for the Court to examine
evidence and ascertain the role of individuals, the place of occurrence and
their liabilities.
39. Undisputedly, deceased/Mool Chand was nearly 70 years of age
and had suffered an injury on a vital part of his body consequent whereto he
died. Injuries were also sustained by other victims, viz. Vijay Kumar, Jaibir
and Khajan Singh. It also remains undisputed that Vijay Kumar did not step
into the witness box; however, his medico-legal report stands proved and as
per the deposition of witnesses, Vijay Kumar suffered an incised wound on
the left parietal region, above the left ear was attributed to Balwan Singh,
with an Axe. The other two witnesses, viz. Jaibir and Khajan Singh had also
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sustained injuries. The medical evidence, however, clearly establishes that
all other injuries except for the injury on the parietal region of deceased-
Mool Chand were simple in nature. The injury attracting Section 324 of the
Indian Penal Code, 1860, caused to Vijay is also attributed to Balwan Singh.
40. It also remains undisputed that PW-1/Dr. Karan Singh had also
examined the appellants and he had reported that Balwan Singh suffered a
lacerated wound in the midline region, while Dinesh and Basti Ram sons of
Balwan Singh, had also sustained injuries. Balwan Singh had alleged that
the injury was caused to him by Vijay Kumar by giving a jaili blow on the
head, while Khajan Singh had given a lathi blow on the back of Dinesh and
Jaibir also gave a lathi blow on the left hand of Dinesh. The injuries caused
to Basti Ram son of Balwan Singh were alleged to have been given by Jaibir
and Suresh. A table depicting said injuries is extracted as under:-
Name of the
appellant-accused.
Injuries suffered MLR proved by PW-
1/Dr. Karan Singh,
MO, GH, Rewari
Injury attributed/
defence version as
per Section 313
Cr.P.C.
Balwan Singh s/o
Chiranji Lal (A1)
1 lacerated
wound in the
midline region
measuring 4 x
0.2 x 2 c.m.
Blunt in nature,
probable
duration - 6
hours. Adv. X-
Ray
Ex DA.
Examined at
12:45 a.m. on
21.05.2000
Vijay gave a jaili
blow on the head of
Balwan Singh.
Dinesh s/o Balwan
Singh (A2)
Left hand
dorsum,
abrasion of 1 x
1 c.m. on back
of thumb
Contusion with
redness on Left
forearm upper
1/3rd.
Ex DB.
Examined at
12:45 a.m. on
21.05.2000
Khazan Singh gave
a lathi blow on the
back of Dinesh.
Jaibir gave a lathi
blow on the left
hand of Dinesh
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measuring 7 x 5
c.m.
Abrasion of 3 x
0.5 c.m. on left
side of the back
of lumbar
region, redness
present.
All injuries
blunt in nature,
probable
duration 6
hours.
Basti Ram s/o
Balwan Singh (A3)
Contusion with
redness 7 x 5
c.m. on left
arm, externally
placed.
Swelling with
abrasion in
right parietal
region
measuring 1 x
0.5 c.m., Fresh
Bleeding
present.
Injuries
simple/blunt in
nature,
probable
duration- 6
hours.
Ex DC
Examined at
12:45 a.m. on
21.05.2000
Jaibir and Suresh
gave lathi blows to
Basti Ram on his
left arm and head
41. Besides, the ocular site plan (Ex. PY) as well as the scaled site
plan (Ex. PT) fairly establishes that the house of the accused persons and the
house of the complainant party are opposite to each other.
42. As per the sequence of facts, the attribution of the prosecution
is that the appellants-accused/Basti Ram, Dinesh and Ram Avtar had
brought an electric motor for installation in the joint well located in the
fields of village near Nalawala Jungle and that while doing so, they
entangled the wires thereby resulting in a spark and consequently damaging
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the motor of Mool Chand, i.e. the complainant party. As per the case of the
prosecution, the same became the bone of contention, which led to the
sequence of events in the form of reproach given by deceased/Mool Chand
to accused/Balwan Singh. An infuriated Balwan Singh rushed inside his
Nohra announcing to finally settle the dispute and came back armed with a
weapon (Axe) along with Basti Ram and allegedly pulled Mool Chand from
the verandah where he was sitting on a cot and threw him in the common
passage. While the fatal injury on the head is attributed to Balwan Singh,
with the reverse side of the axe held by him, the penetrating wound with
irregular margins on the right thigh of the deceased has been attributed to
Basti Ram. It is on account of hearing of commotion that the other accused
persons viz. Ram Avtar, Dinesh, Rajesh and Raj Kumar were attracted to
the place of occurrence. Undisputedly, the fatal blow had already been
given to deceased/Mool Chand, by then. Even the members of complainant
party had reached at the spot and what seemingly ensued was that both the
parties inflicted injuries to each other. The prosecution has however been
dismissive of the injuries caused on the persons of the accused/appellants
and has offered no explanation for the same however the existence of the
said injuries stand proved from the testimony of Dr. Karan Singh (PW-1).
43. Even though the prosecution has failed to establish the
existence of the prime cause as there is no evidence on record to establish
any damage to the electric motor owned by the complainant party,
however, even a perception of a loss, though not verified, might yet give
rise to a harsh exchange of words between the parties.
44. The appellants-accused have also taken a specific plea of
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defence in the statement recorded under Section 313 Cr.P.C. that the
complainant party laboured under a perceived belief that damage to their
electric motor had been caused as a result of intentional mischief
committed by Basti Ram. Hence, the motive lay with them to cause injuries
on the person of Balwan Singh, Basti Ram and Dinesh, who instead acted
in their right of private defence. They entered the Nohra of the appellants
and caused injuries to them. The said defence version has although not
been proved by the defence and only a private complaint was filed by them
against the complainant party but the status thereof has not been made
available. Additionally, even though there is no evidence on record as
would show that any application had even been moved by the appellant-
accused persons for trying the aforesaid complaint as a cross version along
with the present FIR, however, a failure to prove a defence taken by the
accused in their statements recorded under Section 313 Cr.P.C. does not
mean that the version of the prosecution is deemed to be proved by
inference. The burden to prove its case is yet to be discharged by the
prosecution.
45. Since there is a charge for offence under Section 452 of the
Indian Penal Code, 1860, hence, it is necessary to conclusively determine
the same. For determining the said offence, it would be apposite to refer to
the relevant statutory provisions. The same reads thus:-
“441. Criminal trespass.—
Whoever enters into or upon property in the possession of
another with intent to commit an offence or to intimidate, insult
or annoy any person in possession of such property, or having
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lawfully entered into or upon such property, unlawfully remains
there with intent thereby to intimidate, insult or annoy any such
person, or with intent to commit an offence, is said to commit
“criminal trespass”.
442. House trespass.-
Whoever commits criminal trespass by entering into or
remaining in any building, tent or vessel used as a human
dwelling or any building used as a place for worship, or as a
place for the custody of property, is said to commit “house-
trespass”.
Explanation.—The introduction of any part of the criminal
trespasser’s body is entering sufficient to constitute house-
trespass.
452. House-trespass after preparation for hurt, assault or
wrongful restraint.—
Whoever commits house-trespass, having made preparation for
causing hurt to any person or for assaulting any person, or for
wrongfully restraining any person, or for putting any person in
fear of hurt, or of assault, or of wrongful restraint, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to
fine.”
46. It is thus evident from the above that to establish an offence of
house trespass, there has to be an entry into or upon property in possession
of another with an intent to commit an offence against the person in
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possession of the property. The spot inspection thus assumes vital
significance. While even though preparation of site plan is not a statutory
requirement but as per the official instructions, office memorandums and
handbook for investigating officials, a spot inspection ought to be prepared
by the Investigatign Officer. A spot inspection, to the extent as prepared by
the Investigating Officer on the instructions of the complainant or any other
third party is in the nature of a hearsay evidence and in terms of provisions
of Section 60 of the Indian Evidence Act, 1872, the person on whoses’
instructions the site plan is prepared is to be examined, in support thereof.
47. The same is however a relevant fact as per Section 9 of the
Indian Evidence Act, 1872. The said provisions reads thus:-
“9. Facts necessary to explain or introduce relevant facts.
Facts necessary to explain or introduce a fact in issue or
relevant fact, or which support or rebut an inference suggested
by a fact in issue or relevant fact, or which establish the identity
of any thing or person whose identity is relevant, or fix the time
or place at which any fact in issue or relevant fact happened, or
which show the relation of parties by whom any such fact was
transacted, are relevant in so far as they are necessary for that
purpose.
60. Oral evidence must be direct.
Oral evidence must, in all cases, whatever, be direct; that is to
say,
-If it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it;
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If it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any sense or in
any other manner, it must be the evidence of a witness who says
he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the person who holds
that opinion on those grounds :
Provided that the opinions of experts expressed in any treatise
commonly offered for sale, and the grounds on which such
opinions are held, may be proved by the production of such
treatises if the author is dead or cannot be found, or has
become incapable of giving evidence, or cannot be called as a
witness without an amount of delay or expense which the Court
regards as unreasonable.
Provided also that, if oral evidence refers to the existence or
condition of any material thing other than a document, the
Court may, if it thinks fit, require the production of such
material thing for its inspection.”
48. However, the markings shown by the Investigating Officer,
based upon his own observation, can be confronted from the Investigating
Officer as the same is a part of the investigation.
49. Despite the preparation of site plan not being mandatory, yet, it
is a vital relevant evidence as it provides a near visual map of the crime
scene to help the investigating agency as well as the Court to understand
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how the event may have occurred. A site plan shows not only the physical
lay out and topography of the place of incident but also maps the location of
the accused, victims, witnesses and maps the location of vital clues such as
bloodstains, cartridge case, shot marks etc. It thus helps a Court to evaluate
the evidence and testimonies in the case without a site visit. It also may
expose the flaws in the investigation and identity the discrepancies in the
deposition of witnesses. It involves not only scanning of the crime scene but
also search and secure the evidence, while preparing a detailed sketch of the
crime scene.
50. In the afore-referred rules of prudence, the evidence is being
evaluated to ascertain whether there was any trespass into the house to cause
injury or not.
51. The case set up by the prosecution is that the incident in
question took place at around 8.00 p.m. to 8.30 p.m. when the victim/Mool
Chand was sitting on a cot and he expressed his grouse to Balwan Singh.
The ocular site plan Ex. PY and the scaled site plan Ex. PT have been
perused. It is even though stated that the deceased was sitting on a cot;
however, the site plans do not show the presence of any cot in the
verandah. Further, the site plans also do not reflect the presence of any of
the belongings of the deceased/Mool Chand at ‘Mark-A’, i.e. the place
where he was sitting on cot before being dragged into the common passage.
Needless to mention that 8.00 p.m. to 8.30 p.m. in the year 2000 was yet a
time in rural areas when people would be calling it a day and retiring to
their beds. Given that it was the month of May, the elderly people often
sleep out in the verandah but despite the same, no other belongings of the
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deceased have been indicated in the site plan, such as his clothes or slippers
etc. It has also not been indicated in the site plan as to whether the
verandah was pucca or had a kucha base. There are no drag marks of any
nature whatsoever. Besides, it would only be natural in the event of
forceful dragging a person, that his belongings such as shoes/slippers
would slip away. No such scatter or litter is however reflected in the site
plan. The verandah in question is also not depicted to be surrounded by any
boundary so as to be seen within the compound walls and rather is more of
an open area towards the street. The aforesaid missing features in the site
plan thus create a doubt as to whether any person could have entered the
household. Seemingly, some sort of verbal spat may have taken place
between the deceased and Balwan Singh before an enraged Balwan Singh
entered his house to come back armed with an Axe and accompanied by
Basti Ram armed with jaili and allegedly also by Ram Avtar (both armed
with dantali) sons of Balwan Singh. It is very likely that all members of
the family from both the sides would have overheard the verbal spat and
exchange of expletives that ensued between Balwan Singh and
deceased/Mool Chand. The aforesaid exchange of expletives seemingly
took place in the common passage itself and that is why there were no
traces of any scuffle or struggle in the alleged verandah. What is further
noticeable is that even though the house of Balwan Singh is opposite the
house of Mool Chand and the door of the house/Nohra of Balwan Singh
has an opening opposite where Mood Chand was stated to be sitting. The
injuries are allegedly shown to have been caused about 30 feet away from
the door. It is very unlikely that in an event which lasted over a total
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duration of 4-5 minutes, accused/Balwan Singh not only dragged Mool
Chand to a distance of 30 feet but also opened attack. It is also worthwhile
to point out that allegation of dragging out of Mool Chand is only against
Balwan Singh who was himself a 60 year old man around that time. The
incident is rather at a much shorter distance from the plot of Khajan Singh
and may be at a distance of about 5/7 feet approx. There is no description
of any electric bulbs or source of light. Khajan Singh himself does not
show the place where he was, when the incident took place. Once his own
place is not depicted, it becomes suspect as to whether he actually was
present at the time when the occurrence triggered. He thus must have come
later, to the spot. Demarcation thus given by him becomes incomplete and
inadequate. The probability of the incident having taken place at the time
when Mool Chand may be going from plot to the house thus becomes more
probable. The incident in question, in all likelihood, thus took place in the
common passage.
52. The same now leads this Court to examine the possibility of
existence of a common intention.
53. The position in law, to bring home the charge of common
intention, has been examined by the Hon’ble Supreme Court in the matter
of ‘Janak Singh and another Vs. State of Uttar Pradesh’, reported as
(2004) 11 SCC 385, wherein it was held that to bring home the charge of
common intention, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was a plan or meeting of minds of all the accused
persons to commit the offence for which they are charged. Mere presence at the
scene of occurrence is not per se proof of the crime being committed in
pursuance of a common intention. The prosecution is ordained to establish
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that all the accused persons carried the same intention at the time of
committing the offence or at any time during the commission of the
offence.
54. Even during the incident, there does not seem to be any actual
or circumstantial evidence on the basis whereof any meeting of minds
between all the assailants could be assumed. The law cuts out a distinction
between a common intention and a similar intention. Thus, even if there
are several persons who simultaneously attack a man, each having the same
intention i.e. to kill the man. Even though each may cause a separate fatal
blow, yet, each one is responsible for his own act as it may still fall short of
causing blow with a common intention, where the outcome is shared and
desired in unison and with prior meeting of minds. The distinction seems
fine, but it is real and any disregard to the distinction may result in
miscarriage of justice. The action in concert thus become the key point to
determine common intention. Reference and reliance in this regard may
also be placed on the judgment in the case of ‘Chaman and another Vs.
State of Uttaranchal’ reported as AIR 2009 S.C. 1036.
55. The evidence adduced by the prosecution also does not
indicate any exhortation or verbal exchange between the parties as could
have been assumed to lead to formation of common intention. The
sequence of the events and the short duration for which the entire episode
took place leaves no room for formation of a prior meeting of mind or to
even assume that the injuries were caused in concert. Rather, the tilt is in
favour of an assumption that other accused were attracted to the spot on
seeing the fight that had ensued and that the fine distinction between the
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participation being preventive or offensive ceased to exist. It is rather
indicative that there was no formation of any common intention by
accused/Ram Avtar, Rajesh, Dinesh with other accused persons.
56. At this stage, it would be significant to refer to the statement
of complainant-Khajan Singh who appeared as PW-4 and is seemingly the
first witness to the incident. The attribution of exhortation against
accused/Balwan Singh was that he entered his Nohra saying that he would
settle the dispute of the electric motor that day and came back armed with
an axe along with his sons Basti Ram (armed with jaili) and Ram Avtar
(armed with dantali). However, there is no evidence on record that
corresponds to any injury that could have been caused with a dantali,
which is a multi-pronged agricultural instrument, on the person of the
deceased. Instead, Ram Avtar is stated to have caused injury to Jaibir on
his left arm and wrist; he thus did not cause any injury to the
deceased/Mool Chand. The above allegation against Ram Avtar has to be
appreciated in the context that as per the case of complainant/Khajan
Singh, after the blow injuries had been exchanged between the parties, he
raised an alarm bachao-bachao, whereupon his uncles/Vijay Kumar and
Jaibir came to the spot to their rescue. Ram Avtar is alleged to have caused
injuries to Jaibir. It seems unlikely that if Ram Avtar had been amongst the
first persons to arrive at the place of incident, he would not have caused
any injury to the persons who were otherwise present at the spot and would
have caused injury only to Jaibir, who came to the spot at a later point in
time. The sequence thus leads to an inference that Ram Avtar actually did
not accompany Balwan Singh and Basti Ram at the first juncture and came
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to the spot later in point in time.
57. In the above circumstances, we are of the opinion that no
common intention was shared between Ram Avtar, Dinesh, Rajesh, and Raj
Kumar with accused-appellant/Balwan Singh and Basti Ram. Hence, while
affirming the judgment of the trial Court to the extent whereby the above-
said accused persons viz. Ram Avtar, Rajesh, Raj Kumar and Dinesh have
been acquitted of the offence of homicide, we are of the opinion that the
said accused could not also have been held liable for offence under Section
324 read with Section 34 of the Indian Penal Code, 1860 for the incised
injury caused upon the person of Vijay Kumar by Balwan Singh. They are
thus liable only for commission of offence under Section 323 of the Indian
Penal Code, 1860.
58. The issue which now requires determination of this Court is as
to whether the accused are liable for offences under Section 302 of the
Indian Penal Code, 1860 or they are liable for the offence of culpable
homicide not amounting to murder. Before proceeding further on the said
aspect, it would be essential to refer to Section 300 of the Indian Penal
Code, 1860, which defines murder:-
“300. Murder.—
Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the
intention of causing death, or—
(Secondly)— If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or—
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(Thirdly)— If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause
death, or—
(Fourthly)— If the person committing the act knows that it is
so imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in
consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that
a blow is likely to cause his death, strikes him with the
intention of causing bodily injury. Z dies in consequence of the
blow. A is guilty of murder, although the blow might not have
been sufficient in the ordinary course of nature to cause the
death of a person in a sound state of health. But if A, not
knowing that Z is labouring under any disease, gives him such
a blow as would not in the ordinary course of nature kill a
person in a sound state of health, here A, although he may
intend to cause bodily injury, is not guilty of murder, if he did
not intend to cause death, or such bodily injury as in the
ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound
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sufficient to cause the death of a man in the ordinary course of
nature. Z dies in consequence. Here, A is guilty of murder,
although he may not have intended to cause Z’s death.
(d) A without any excuse fires a loaded cannon into a crowd
of persons and kills one of them. A is guilty of murder,
although he may not have had a premeditated design to kill
any particular individual.
Exception 1.— When culpable homicide is not murder.—
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by
mistake or accident. The above exception is subject to the
following provisos:—
(First)— That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.
(Secondly)— That the provocation is not given by anything
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
(Thirdly)— That the provocation is not given by anything
done in the lawful exercise of the right of private defence.
Explanation.— Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact.
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Illustrations
(a) A, under the influence of passion excited by a
provocation given by Z, intentionally kills. Y, Z’s child.
This is murder, in as much as the provocation was not
given by the child, and the death of the child was not
caused by accident or misfortune in doing an act caused by
the provocation.
(b) Y gives grave and sudden provocation to A. A, on
this provocation, fires a pistol at Y, neither intending nor
knowing himself to be likely to kill Z, who is near him, but
out of sight. A kills Z. Here A has not committed murder,
but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to
sudden and violent passion by the arrest, and kills Z. This
is murder, in as much as the provocation was given by a
thing done by a public servant in the exercise of his
powers.
(d) A appears as witness before Z, a Magistrate, Z
says that he does not believe a word of A’s deposition, and
that A has perjured himself. A is moved to sudden passion
by these words, and kills Z. This is murder.
(e) A attempts to pull Z’s nose, Z, in the exercise of
the right of private defence, lays hold of A to prevent him
from doing so. A is moved to sudden and violent passion in
consequence, and kills Z. This is murder, in as much as the
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provocation was given by a thing done in the exercise of
the right of private defence.
(f) Z strikes B. B is by this provocation excited to
violent rage. A, a bystander, intending to take advantage of
B’s rage, and to cause him to kill Z, puts a knife into B’s
hand for that purpose. B kills Z with the knife. Here B may
have committed only culpable homi-cide, but A is guilty of
murder.
Exception 2.— Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of private
defence of person or property, exceeds the power given to
him by law and causes the death of the person against
whom he is exercising such right of defence without
premeditation, and without any intention of doing more
harm than is necessary for the purpose of such defence.
Illustration
Z attempts to horsewhip A, not in such a manner as to
cause grievous hurt to A. A draws out a pistol. Z persists in
the assault. A believing in good faith that he can by no
other means prevent himself from being horsewhipped,
shoots Z dead. A has not committed murder, but only
culpable homicide.
Exception 3.— Culpable homicide is not murder if the
offender, being a public servant or aiding a public servant
acting for the advancement of public justice, exceeds the
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powers given to him by law, and causes death by doing an
act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose death
is caused.
Exception 4.— Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner.
Explanation.— It is immaterial in such cases which party
offers the provocation or commits the first assault.
Exception 5.— Culpable homicide is not murder when the
person whose death is caused, being above the age of
eighteen years, suffers death or takes the risk of death with
his own consent.
Illustration
A, by instigation, voluntarily causes, Z, a person under
eighteen years of age to commit suicide. Here, on account of
Z’s youth, he was incapable of giving consent to his own
death; A has therefore abetted murder.”
59. Exception 4 to Section 300 of the Indian Penal Code, 1860
prescribes that where culpable homicide is committed without premeditation
in a sudden fight, in the heat of passion upon a sudden quarrel and without
the offender having taken undue advantage or acted in a cruel or unusual
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manner, the culpable homicide would not amount to murder. The
explanation thereto makes the concept clear when it explains that in such an
eventuality it is immaterial as to which party offers the provocation or
commits the first assault. A bare reading of the provision suggests that when
culpable homicide is not premeditated but committed in a heat of passion
and on a sudden quarrel, the element of who gave the provocation or who
committed the first assault pales into insignificance. There are thus no
aggressors or defenders. The concept of a free fight inherently presupposes
a sudden turn of events and a continued state of rage or passion, arising in
the course of a sudden quarrel. The turn of events as relied upon by the
prosecution asserts that the fight broke out between the parties on a reproach
by Mool Chand (since deceased). There were thus no prior signs of any
unrest or commotion between the parties even though they are housed
opposite to each other. This Court could not go behind the rationality
behind the conduct of the parties but noticeably the suppressed aggression or
feelings were brought out when the complaint was lodged by Mool Chand.
Still, soaring passion consequent upon the sudden quarrel led to a sudden
fight. The usage of the word “sudden fight” follows “a sudden quarrel”.
The evidence of the prosecution in the present case follows the aforesaid
sequence where the quarrel took place before the fight commenced.
60. The expression ‘quarrel’ has been defined in Black’s Law
Dictionary, 8
th
Edition (South Asian Edition) to mean “an altercation or
angry dispute; an exchange of recriminations, taunts, threats or
accusation between the parties to archaic. a complaint; a legal action”.
Invariably, the quarrel commenced as a result of accusation by Mool Chand
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and is not attributable to an act of Balwan Singh. Thus, there was an
element of suddenness insofar as the reaction of Balwan Singh and other
accused is concerned. It was an impromptu reaction and the chain reaction
which followed when the incident reached to a proportion where it was not
anticipated or desired.
61. The legislature, being cognizant of erratic conduct or behaviour
by the parties, under such circumstances, thus conceived the explanation,
where it recorded that in an event of free fight, it would be immaterial as to
which party offered the provocation and which party was the aggressor. It
goes on the presumption that both the parties are equally responsible for
aggravating the circumstances and that individual roles and attribution or
provocation or aggression become thinly demarcated lines, as each party
offers some provocation or aggression in its own way.
62. The legislature has however put a caveat and defence of free
fight, i.e. that a party should not have taken undue advantage or acted in a
cruel or unusual manner to avail such benefit. The facts of the case show
that there is one injury each attributed to the deceased/Mool Chand by
Balwan Singh and Basti Ram. There is no repeat injury caused by them on
the person of the deceased. In fact, Basti Ram did not cause any other injury
to any other person as well. The manner in which the injury was caused
cannot be said to be brutal or cruel. Besides, it is also evident that there
were injuries sustained by Balwan Singh on his head and even the other
accused sustained injuries. Thus, both sides did wield the weapons and it
may not be severally assumed that any undue or unbecoming advantage had
been drawn by the assailants.
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63. Further, the deposition of Khajan Singh/complainant and
injured witness specifically is that initially only Balwan Singh and Basti
Ram had come armed with weapons. Balwan Singh gave an axe blow from
its reverse side on the head of deceased/Mool Chand, followed by a jaili
blow on his thighs by Basti Ram. The fatal injuries were thus already
caused by the time the other accused were attracted to the spot. There was
thus no intention on the part of the other accused persons to cause any
injury to deceased/Mool Chand or to cause his death. Although an attempt
was made by the prosecution to allege that a lathi blow had been given on
the left eye by Rajesh and 2/3 lathi blows were given on the left arm of
Mool Chand by accused/Raj Kumar, however, the medical evidence of
deceased dispels the said allegations while the injury over the left eye
attributed to Rajesh with a lathi was opined by the Doctor to be as an effect
of the blunt injury caused on the head, the swelling in the wrist joint of the
forearm attributed to Raj Kumar was opined by the Doctor to be as a result
of fall. Seemingly, the assignment of the aforesaid injuries to the
appellant-accused persons is based upon the ocular injuries recorded by the
investigating officer at the time of conducting inquest proceedings. The
version, however, lost its support when the medical evidence was proved;
thus, the entire account of the incident, as given by the prosecution, cannot
be accepted without a careful scrutiny and appreciation of the evidence. In
an event where the prosecution evidence shows that it may not be reflective
of the true genesis of the occurrence and there is a possibility of
manipulation of facts and attribution of injuries to implicate all members of
the family, it would be prudent for a Court of law to examine the evidence
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in totality before it is held credible and reliable to return a finding of
conviction. It however transpires that the injuries caused on the head of
Vijay Kumar by Balwan Singh were inflicted after the other accused
reached at the spot. In the said circumstances, it cannot be said that
accused/Dinesh, Rajesh, Ram Avtar or Raj Kumar shared an intention to
commit murder of Mool Chand (since deceased). The injuries having
already been caused much before the other accused were attracted to the
spot, hence, the vicarious liability with the aid of Section 34 of the Indian
Penal Code, 1860 and assuming a common intention cannot be drawn. At
this juncture, it would also be apposite to keep in mind that the entire
incident, i.e. from the complaint espoused by Mool Chand to the break out
of brawl and injuries sustained by both the parties, lasted for a period of
4/5 minutes. Thus, the sequence of events was fast-paced, and the event
took a turn in a fit of rage instead of a premeditated act. The prosecution
has made an attempt to invoke Section 34 of the Indian Penal Code, 1860
and the existence of a common intention by relating it to the incident of the
burning of the motor that took place during the day; however, the
explanation put forth does not appear satisfactory. Firstly, the complainant
party was the party which nurtured a grouse on account of a perception of
loss to the electric motor consequent upon a perceived intentional mischief
on the part of Basti Ram. Hence, there was otherwise no motive for the
appellant-accused to open an attack. Hence, the reference to the incident of
burning of the motor becoming the basis for forming a common intention
does not appear to be reasonable. Assuming for the sake of argument that
the said aspect is examined to test its possibility, if the appellants actually
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perceived a grudge for the said reason, there would be no occasion for
them to be out in the street empty-handed and instead, they would have
come to the spot fully armed. It is the case of the prosecution that Balwan
Singh entered the house to fetch the weapons after a verbal spat had
already taken place between deceased-Mool Chand and Balwan Singh.
Thus, till the time that a grievance was raised with Balwan Singh about the
alleged intentional mischief of Basti Ram, seemingly nothing untoward had
occurred between the parties and that the disharmony was triggered on
account of attribution of mischief to Basti Ram by deceased/Mool Chand
before Balwan Singh. The said circumstances rather probablise the case of
a free fight instead of a pre-meditated assault with an intent to cause death.
64. Hence, the defence has been able to bring home some evidence
to probablize an eventuality of free fight and thus bringing the case within
exception 4 of Section 300 of the Indian Penal Code, 1860. We are thus of
the opinion that the judgment of the trial Court convicting the appellants viz.
Balwan Singh and Basti Ram for offence under Section 302 read with
Section 34 of the Indian Penal Code, 1860 is misplaced and does not take
into consideration the circumstances as aforesaid. Hence, their conviction
for commission of offence under Section 302 read with Section 34 of the
Indian Penal Code, 1860 is set aside.
65. The same leads to the next pertinent question as to whether
appellants, viz. Balwan Singh and Basti Ram would be liable to be convicted
for offence under Section 304-I or 304-II read with Section 34 of the Indian
Penal Code, 1860, which read thus:-
“304. Punishment for culpable homicide not amounting to
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murder.—
Whoever commits culpable homicide not amounting to murder
shall be punished with imprisonment for life, or imprisonment
of either description for a term which may extend to ten years,
and shall also be liable to fine, if the act by which the death is
caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death,
or with imprisonment of either description for a term which
may extend to ten years, or with fine, or with both, if the act is
done with the knowledge that it is likely to cause death, but
without any intention to cause death, or to cause such bodily
injury as is likely to cause death.”
66. It is evident from the above that Section 304-I of the Indian
Penal Code, 1860 gets attracted when the act by which the death is caused is
done with the intention of causing death or of causing such bodily injury as
is likely to cause death. Undisputedly, when Balwan Singh is alleged to
have gone to his Nohra to get weapons, there was no exhortation of any
elimination or death. Besides, only one injury was caused on the vital part
of the deceased, while the second injury, i.e. the irregular wound on the
thighs with a jaili was found to be simple in nature.
67. Despite being armed with a sharp-edged weapon, Balwan Singh
did not cause injury from the sharp side; the same is indicative of an
underlying sub-conscious intent of not causing death or causing any injury
as was likely to cause death. The aforesaid intent draws further support
from the subsequent conduct reflecting exercise of restraint by the above two
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assailants to repeat any injury on the person of the deceased. Thus, even
though the injury No.1 may have proved fatal, however, the intent is to be
gathered from the totality of circumstances which, in this case, not point to a
crystallised intent to cause death or to cause injury sufficient to cause death.
Thus, the ingredients for invoking Section 304-I of the Indian Penal Code,
1860 would not be made out.
68. At the same time, it has to be kept in mind that the houses of
the deceased as well as the accused persons were facing each other and they
are amongst the same collaterals sharing a common well. They are thus
deemed to be in full knowledge of the age as well as the health conditions of
Mool Chand. While the intent to cause an injury sufficient to cause death
may not have existed, however, it is expected of every prudent person to be
aware and to be in the knowledge that if any injury is caused on the vital
part, viz. the head of a person who is of nearly 70 years, the same is likely to
prove fatal. There is nothing available on record on the basis whereof it may
be assumed that the cognitive faculties of the assailants were not developed
to a stage where existence of such knowledge could be obviated. Thus,
accused/Balwan Singh and Basti Ram are held liable for commission of
offence punishable under Section 304-II of the Indian Penal Code, 1860.
69. The case having been examined and it being noticed that there
is a strong likelihood of a free fight instead of a concerted assault to commit
murder, the case would not be punishable for offence under Section 302 of
the Indian Penal Code, 1860 and instead be punishable under Section 304
(Part-II) of the Indian Penal Code, 1860. The Hon’ble Supreme Court
examined cases based on certain similar facts and it too set aside the
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judgment of conviction under Section 302 of the Indian Penal Code, 1860
and sentenced under Section 304 (Part-II) of the Indian Penal Code, 1860.
70. Reference and reliance in this regard is placed on the judgment
in the matter of ‘Chamru Budhwa Vs. State of Madhya Pradesh.’, reported
as AIR 1954 SC 652. Relevant extract thereof reads thus:-
“
4. It appears that the Appellant did not plead any exception
mentioned in
Section 300 of the Indian Penal Code. The
circumstances however as found by the Courts below were that there
was a severe exchange of abuses between the parties preceding the
incident, that during the abuse the tempo rose and both the parties
came out of their respective houses in anger and that in the course of
the quarrel the Appellant dealt the fatal blow on the head of the
deceased with his lathi. Even though the circumstances were such as
not to bring the case within Exception 1 to
Section 300 of the Indian
Penal Code it appears that the crime was committed without
premeditation in a sudden fight in the heat of passion upon a sudden
quarrel and without the appellant's having taken undue advantage
or acted in a cruel or unusual manner thus bringing the case within
Exception 4 thereto with the result that the offence committed was
culpable homicide not amounting to murder. The Appellant therefore
could not be convicted of having committed an offence under
Section
302
of the Indian Penal Code.
5. It now remains to consider whether the offence which he
committed falls within the first part or the second part of
Section
304
of the Indian Penal Code. When the fatal injury was inflicted by
the Appellant on the head of the deceased by only one blow given in
the manner alleged by the prosecution it could as well be that the act
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by which death was caused was not done with the intention of
causing death or of causing such bodily injury as is likely to cause
death. The act appears to have been done with the knowledge that it
was likely to cause death, but without any intention to cause death or
to cause such bodily injury as is likely to cause death within the
meaning of Part II of
Section 304 of the Indian Penal Code.”
71. Further, reliance is also placed on the judgment in the matter of
‘Lalji and others Vs. The State of U.P.’, reported as (1974) 3 SCC 295.
Relevant extract reads thus:
“10. In appeal before us Mr. Nuruddin on behalf of the
appellants has argued that the present is not a case wherein
the accused party can be said to be members of the unlawful
assembly or wherein the injuries caused by Lalji to Pancham
can be said to have been caused in prosecution of the common
object of the accused-appellants. Although Mr. Rana on behalf
of the State has controverted the above contention, we find
considerable force in the same. The trial court has found that
Mahabir accused had been using water from the well near his
hut-for irrigation purposes and that he along with Ram Naresh
was repairing the old water channel on the ridge when the
party of the complainant came there and stopped Mahabir and
Ram Naresh from further repairing the water channel. The
other accused who were present in the hut nearby, at a
distance of 15 or 20 paces from the ridge, then came there.
There was remonstrance and counter remonstrance which
resulted in a fight. The trial court has also found that there
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was no premeditation on the part of Lalji or any other accused
to cause Pancham's death and that the fight was a sudden
affair and was the result of heated passion. In the
circumstances, in our opinion it cannot be said that the
appellants who were present in front of their hut formed an
unlawful assembly. An assembly of five or more persons is
designated an unlawful assembly if the common object of the
persons composing that assembly is to do any of the acts
mentioned in the five clauses of Section 141 Indian Penal
Code. According to the explanation to that section, an
assembly which was not unlawful when it assembled may
subsequently become an unlawful assembly. The facts found by
the trial court and the High Court and the circumstances of
the case do not show that the appellants formed a common
object to do any of the acts mentioned in the five clauses of
Section 141. Reference has been made to clause (4) of Section
141, according to which an as" seemly of five or more persons
would be unlawful if the common object of the persons
composing that assembly is to enforce any right or supposed
right by means of criminal force or show of criminal force.
This clause cannot be of much avail because it cannot be said
that the common object of the appellants was to enforce any
right or supposed right by means of criminal force or show of
criminal force. As mentioned earlier, no party attacked the
members of the opposite party at the commencement of the
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occurrence. There was only at that stage remonstrance and
counter :remonstrance. Someone then started the fight and,
according to the trial court, it could not definitely be
determined as to which of the two parties struck the first blow.
The circumstances of the case show that lathis were then wield
by the appellants other than Lalji, not with a view to enforce
any right or supposed right in respect if the water channel but
because of the fact that a fight had started and the
complainant's party was found by be armed. As there was no
premeditation and the occurrence was a sudden affair, each of
the appellants, in our opinion' should be held to be liable for
his individual act and not vicariously liable for the acts of
others.
11. Lalji gave the spear blow in the abdomen of Pancham His
conviction should, therefore, be maintained for the offence
under Section 304Part I Indian Penal Code. The sentence of
rigorous imprisonment for a period of ten years awarded to
Lalji for the injury caused to Pancham cannot be held to be
excessive. As regards the other appellants, we find that they
caused simple hurt with their lathis. There is no doubt that one
grievous injury was caused to Bhaggan with blunt weapon, but
On the material on record it cannot be said as to who caused
the said injury. We would accordingly maintain the conviction
of Mahabir, Nar Singh, Paras Nath and Ram Naresh for the
offence under Section 323 Indian Penal Code. The conviction
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CRR-289-2006 (O&M)
of Lalji for offences other than that under Section :304 Part I,
and of the other four appellants for the offences other than
that under Section 323 Indian Penal Code is set aside. Lalji is
sentenced to undergo rigorous imprisonment for a period of
ten years for the offence under Section 304 Part I. As regards
the other four appellants who have been convicted under
Section 323 Indian Penal Code, their sentence of
imprisonment is reduced to the period already undergone.”
72. Reliance is also placed on the judgment of the case of
‘Surender Vs. U.T. Chandigarh’, reported as (1989) 2 SCC 217. Relevant
extract reads thus:
“7. To invoke this exception four requirements must be
satisfied, namely, (i) it was a sudden fight; (ii) there was no
premeditation; (iii) the act was done in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted
in a cruel manner. The cause of the quarrel is not relevant nor
is it relevant who offered the provocation or started the assault.
The number of wounds caused during the occurrence is not a
decisive factor but what is important is that the occurrence
must have been sudden and unpremeditated and the offender
must have acted in a fit of anger. Of course, the offender must
not have taken any undue advantage or acted in a cruel
manner. Where, on a sudden quarrel, a person in the heat of the
moment picks up a weapon which is handy and causes injuries,
one of which proves fatal, he would be entitled to the benefit of
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this exception provided he has not acted cruelly. In the present
case, the deceased and PW 2 had entered the room occupied by
Sikander Lal and his family members and had demanded vacant
possession of the kitchen. When they found that the appellant
was disinclined to handover possession of the kitchen, PW 2
quarreled and uttered filthy abuses in the presence of the
appellant's sister. On the appellant asking him to desist he
threatened to lock up the kitchen by removing the utensils, etc.,
and that led to a heated argument between the appellant on the
one side and PW 2 and his deceased brother on the other. In
the course of this heated argument it is the appellant's case that
PW 2 took out a knife from his pant pocket. This part of the
appellant's case seems to be probable having regard to the
antecedents of PW 2. It is on record that PW 2 was convicted at
Narnaul on two occasions under Section 411, IPC and his name
was registered as a bad character at the local police station. It
was presumably because of this reason that he had shifted from
Narnaul to Chandigarh a couple of years back and had started
to live in the premises rented by PW 4. When the appellant
found that PW 2 had taken out a pen knife from his pocket he
went into the adjoining kitchen and returned with a knife. From
the simple injury caused to PW 2 it would appear that PW 2
was not an easy target. That is why the learned Sessions Judge
rejected the case that Amrit Lal had held PW 2 to facilitate an
attack on him by the appellant. It further seems that thereafter a
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scuffle must have ensued on Nitya Nand intervening to help his
brother PW 2 in which two minor injuries were suffered by the
deceased on the left arm before the fatal blow was inflicted on
the left flank at the level of the 5th rib about 2" below the
nipple- It may incidentally be mentioned that the Trial Court
came to the conclusion that the injury found on the neck of PW
2 was a self-inflicted wound and had therefore acquitted the
appellant of the charge under Section 307, IPC, against which
no appeal was carried. We have, however, proceeded to
examine this matter on the premise that PW 2 sustained the
injury in the course of the incident. From the above facts, it
clearly emerges that after PW 2 and his deceased brother
entered the room of the appellant and uttered filthy abuses in
the presence of the latter's sister, tempers ran high and on PW
2 taking out a pen knife the appellant picked up the knife from
the kitchen, ran towards PW 2 and inflicted a simple injury on
his neck. It would be reasonable to inter that the deceased must
have intervened on the side of his brother PW 2 and in the
course of the scuffle he received injuries, one of which proved
fatal. Taking an overall view of the incident we are inclined to
think that the appellant was entitled to the benefit of the
exception relied upon. The High Court refused to grant him that
benefit on the ground that he had acted in a cruel manner but
we do not think that merely because three injuries were caused
to the deceased it could be said that he had acted in a cruel and
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unusual manner. Under these circumstances, we think it proper
to convict the accused under Section 304, Part I, IPC and direct
him to suffer rigorous imprisonment for 7 years.”
73. Having held so, the question which next falls for our
consideration is the sentence to be awarded to the convicts. The facts of the
case and the evidence available on record show that there are no criminal
antecedents between the parties and that even after the occurrence in the
year 2000, the accused persons have not indulged in any other crime or
offence. They have faced the agony of a criminal trial for a period of nearly
26 years and there have been no further skirmishes or untoward incidents
between the parties, although residing opposite to each other in the same
village. The evidence on record thus reflects that the accused happened to
have committed a crime in the heat of passion and have not displayed
criminal tendencies. Hence, while acquitting the accused persons of
offences under Section 452 of the Indian Penal Code, 1860, we are of the
view that ‘Ram Avtar, Dinesh, Rajesh and Raj Kumar’ cannot be held
liable for commission of offence under Section 324 read with Section 34 of
the Indian Penal Code, 1860. They are thus acquitted of the said charge and
they are convicted for commission of offence only under Section 323 of the
Indian Penal Code, 1860. The sentence awarded to them for a period of 06
months for commission of the offence under Section 323 of the Indian Penal
Code, 1860 is modified to the period already undergone.
74. Accused/Balwan Singh and Basti Ram are convicted for
commission of offence under Section 304-II read with Section 34 of the
Indian Penal Code, 1860 and they are sentenced to undergo rigorous
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imprisonment for a period of 07 years and to pay a fine of Rs.10,000/- each.
In default thereof, they shall further undergo rigorous imprisonment for a
period of 04 months. Accused/Balwan Singh is also sentenced to undergo
rigorous imprisonment for a period of 01 year for commission of offence
under Section 324 of the Indian Penal Code, 1860 and to pay a fine of
Rs.2,000/-, in default thereof to further undergo rigorous imprisonment for a
period of 02 months. The sentence awarded shall run concurrently.
75. In light of the foregoing conclusions, CRR-289-2006 titled as
‘Khajan Singh vs. Balwan Singh and others’ is held to be bereft of merits
and is accordingly dismissed.
76. CRA-892-DB-2005 titled as ‘Balwan Singh and others Vs.
State of Haryana’, preferred against the judgment dated 22.11.2005 passed
by Additional Sessions Judge, Rewari in Session Case No.11 of 2000/2005
arising out of FIR bearing No. 84 dated 21.05.2000 registered under
Sections 148/149/323/324/452/302 of the Indian Penal Code, 1860 at Police
Station Kosli, Rewari, is partly allowed.
(VINOD S. BHARDWAJ)
JUDGE
(SUKHVINDER KAUR)
07.09.2026 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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