[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1071 OF 2009

SHER SINGH & ANR. …..APPELLANTS

VERSUS

STATE OF HARYANA .….RESPONDENT

WITH

CRIMINAL APPEAL NOs. 1294 OF 2009, 182-183 OF 2010

AND 97-98 of 2010.

J U D G M E N T

HARJIT SINGH BEDI, J.

1.This judgment will dispose of Criminal Appeal Nos. 1071

of 2009, 1294 of 2009, 182-183 of 2010 and 97-98 of 2010.

The facts have been taken from Criminal Appeal No.1071 of

2009.

2.At 6 a.m. on the 29

th

September 1991 Umed Singh

deceased accompanied by his wife Bimla PW-1 and son Raj

Kumar PW-6 had gone to their fields situated in village Kosli,

Police Station Jatusana, District Rewari, for harvesting the

bajra crop when

accused Balbir

Singh armed with a Kulhari, Mange Ram, Sher Singh and

Harish with lathis, Surender with a bankri, Rajesh and Smt.

Rajesh with a jailli each, and Des Raj empty handed came to

the spot. The accused raised a lalkara that they would teach

Umed Singh a lesson for having interfered in the purchase of

agricultural land and on saying so Balbir Singh gave a kulhari

blow on the left knee of Umed Singh, Des Raj grappled with

Umed Singh and felled him to the ground whereafter Sher

Singh gave a lathi blow on his chest and Mange Ram and

Harish also gave lathi blows on his person and Surender and

Smt. Rajesh gave blows with bankris on the back portion of

his hand and Rajesh gave a jailli blow lathiwise. Bimla and

Raj Kumar stepped forward to rescue Umed Singh and they

too were attacked by Surender who gave a bankri blow on

Bimla’s head and Smt. Rajesh administered another blow on

her head whereafter Mange Ram gave a lathi blow on the left

hand and Raju gave a jailli blow lathiwise on Bimla’s head. An

alarm raised by Bimla attracted many persons, including

Crl. Appeal No.1071/2009 etc.

2

Shakuntla,

Hoshiar, Raghu

Nath, Om Prakash, Siri Chand and Mahabir and when

Shakuntla intervened, Mange Ram dealt her a lathi blow on

the left knee. The accused then lifted Umed Singh and took

him to the tubewell belonging to Balbir Singh accused where

he was left bleeding. The accused then ran away from the

spot. Information about the occurrence was carried to the

village by Raj Kumar PW-6 on which Mansa, Braham and

Bhagat Singh reached the tubewell. They removed Umed

Singh, Bimla and Raj Kumar in an auto rickshaw to the

Primary Health Centre, Kosli. Dr. Ravinder Nath examined

Bimla at 7.30 am. on the same day and found three skin deep

lacerated wounds on the head, forearm and the web space

between the index and middle finger of the left hand and

several other injuries on the thighs as well. The doctor opined

that the injuries had been caused by a blunt weapon within

six hours. Raj Kumar too was examined by the said doctor

who found two superficial injuries on the right side of his head

and three on the right lower leg. Injury No.1 was put under

Crl. Appeal No.1071/2009 etc.

3

observation

while the other

was declared simple. In the opinion of the doctor, these

injuries had been caused within six hours. Umed Singh was

also examined and was found to have injuries of the

dimensions of 10 cm x 10 cm and 15 cm x 15 cm on the upper

arm and back, respectively. The doctor opined that all the

injuries had been caused by a blunt weapon within a duration

of six hours. Umed Singh, after receiving first aid at the

Primary Health Center, was referred to the Civil Hospital,

Rewari at about 10 a.m. while Bimla and Raj Kumar were

discharged. The Medical Officer also sent information to the

Police Post, Kosli about the arrival of the injured. ASI Balbir

Singh PW accordingly reached the Primary Health Center but

found that Umed Singh had already been removed to the Civil

Hospital, whereas Bimla and Raj Kumar had gone home after

being discharged, with the result that the ASI received no

information about the incident at that time. Umed Singh,

however, died in the Civil Hospital, Rewari at 1.10 p.m. on the

same day and information to this effect was received by Bimla

Crl. Appeal No.1071/2009 etc.

4

in the village at

3.00 p.m. A

First Information Report was, accordingly, registered at Police

Station, Jatusana at 7.10 p.m. on the basis of Bimla’s

statement recorded by ASI Balbir Singh of Police Post, Kosli at

6 p.m. The Special Report was also delivered to the Illaqa

Magistrate at Rewari on the 30

th

September 1991 at 1.25 a.m.

ASI Balbir Singh also reached the hospital and conducted the

inquest proceedings and referred the dead body for a post-

mortem examination which was carried out by Dr. V.K.Jain,

PW-4 of the Civil Hospital, Rewari. In the opinion of the

Medical Officer, all the injuries were ante-mortem in nature

but he was unable to give any definite opinion about the

weapons used as nine of the injuries had been stitched up

whereas the remaining injuries were blunt weapon injuries.

During the course of the investigation, Sub-Inspector Jai

Narain PW-8 visited the place of incident (on the 30

th

September 1991) and picked up two pairs of chappals, a rapri

with a broken handle, a piece of rope and a blood stained

match box from the field of Umed Singh deceased or

Crl. Appeal No.1071/2009 etc.

5

nearabouts. The

Police Officer

then went to the field of Balbir Singh accused and picked up

blood stained earth from near his tubewell. He also prepared

the site plan relating to the incident in the field of Umed Singh

and the tubewell of Balbir Singh. Some of the accused

including Sher Singh were arrested on the October 2, 1991 by

Sub-Inspector Karan Singh PW-10 and on the interrogation of

accused, Balbir Singh, a kulhari was also recovered. On the

completion of the investigation, the police filed a charge-sheet

against Balbir Singh and his sons Mange Ram, Des Raj and

Surender whereas the other accused i.e. Sher Singh, Rajesh,

Harish and Smt. Rajesh were placed in column 2. These

accused were subsequently summoned by orders dated April

4, 1992 made on an application under Section 319 of the

Cr.P.C.

3.The prosecution in support of its case relied primarily on

the evidence of Bimla PW-2 and Raj Kumar PW-6, the two

injured witness, Dr. V.K.Jain, PW-4 who had conducted the

post-mortem on the dead body, ASI Balbir Singh PW-7, Sub-

Crl. Appeal No.1071/2009 etc.

6

Inspector Jai

Narain PW-8 and

Sub-Inspector Karan Singh PW-10. The prosecution case was

then put to the accused and they denied all the allegations

levelled against them and pleaded false implication as also a

counter version. Mange Ram stated that two years before the

occurrence, his father Balbir had purchased 2 acres of land

and had acquired rights as a co-sharer and on that basis he

had successfully pre-empted a sale in favour of Umed Singh

and that Umed Singh was, accordingly, upset with Balbir

Singh and that a fight had taken place on the 21

st

August

1991 and injuries had been inflicted on his brother Des Raj

accused. He further stated that at about 6 a.m. on the 29

th

September 1991 his mother Parvati DW-9 had been working in

their field whereas Des Raj accused was ploughing the land at

some distance when Umed Singh, Bimla and Raj Kumar

armed with Kasis and Bhankris had attacked Parvati and

caused injuries to her on which Des Raj had come running

and he too had been caused injuries by them whereafter

Pappu, Partap, Hoshiar and Raghbir had also arrived at that

Crl. Appeal No.1071/2009 etc.

7

place and Des

Raj and the new

arrivals had accordingly given injuries to the complainant

party in their defence. He further stated that Parvati had been

medico-legally examined on the same day at the Primary

Health Center, Kosli in the presence of the complainant party

and though the police too had been present at that time and a

request had been made by Parvati to record her statement, the

police had not done so and had colluded with the opposite

party and after the death of Umed Singh, had registered a

false case against them. Sher Singh and Harish, however,

pleaded an alibi and examined three witnesses Ravinder Singh

DW-1, Bhagwan Devi DW-2 and Shailender DW-9 to the effect

that they had been present in their house at 6 a.m. on the

29

th

September 1991 with Sher Singh taking tuitions ( and

Harish still asleep) which had been attended by Ravi, Ravinder

Singh, PW and Rajesh upto 8 a.m. and that Bhagwan Devi had

also come to take lassi during that period. Dr. Neel Kanth

Sharma DW-7, Radiologist, ESI Hospital, Faridabad was also

examined who deposed that he had performed an X-Ray on

Crl. Appeal No.1071/2009 etc.

8

the person of

Parvati DW-9 on

the 28

th

October, 1991 and the test had revealed a dislocation

of the right wrist and a fracture of the femur.

4.The trial court on a consideration of the evidence

particularly the statements of Bimla and Raj Kumar PW’s,

both injured, held that the incident had not happened in the

field of the accused, as alleged by Mange Ram but in the field

of Umed Singh and that he had, thereafter, been taken to

Balbir Singh’s tubewell. It was, further, observed that the

absence of drag marks on the body did not indicate that he

had not been dragged to that place. The court also held that

the delay in the lodging of the FIR had also been explained.

The court accordingly convicted and sentenced the accused

Des Raj, Mange Ram, Surender, Sher Singh and Harish to

rigorous imprisonment for life and to a fine of Rs.300/- each

for the offences under Section 302 read with Section 149 and

in default of payment of fine, to further undergo imprisonment

for a period of two months each, and under Section 323 read

with Section 149 IPC rigorous imprisonment to a period of two

Crl. Appeal No.1071/2009 etc.

9

months rigorous

imprisonment

and for a period of one year each under Section 148 IPC all the

substantive sentences to run concurrently. Rajesh son of Sher

Singh and Smt. Rajesh wife of Mange Ram who had been

summoned under Section 319 Cr.P.C. were, however,

acquitted. An appeal was thereafter taken by the accused to

the High Court.

The High Court vide its judgment dated 1

st

October 2008

partly allowed the appeal whereby the conviction and sentence

awarded under Section 302/149 was set aside and a

conviction under Section 304 Part II read with Section 149

with a sentence of 5 years rigorous imprisonment and a fine of

Rs.50,000/- each was substituted; the other parts of the

sentence being maintained. In arriving at its conclusions, the

High Court found that as the place of occurrence had been

shifted by the prosecution from the field of Balbir Singh to that

of Umed Singh and as there was no explanation for the

injuries to two members of the accused party it was difficult to

believe the prosecution story in totality. The Court then

Crl. Appeal No.1071/2009 etc.

10

observed that the

nature and

extent of the injuries received by the witnesses would help in

determining what had really transpired and by some

convoluted inferential process arrived at a conclusion which

was neither the story of the prosecution nor of the defence and

observed thus:

“The present case is one in which medical

evidence is of great importance. We say this

because there was delay in reporting the

matter to the police. The place of the

occurrence had been shifted. There was no

explanation of the injuries on two members of

the party of the accused. All of this made it

difficult to believe the prosecution version in

totality. It is not the duty of the court to try to

reconcile the version, borrow some features

from the prosecution case and add features

from the defence version to come up with a

common story. This is not the task which

either the trial court or the appellate court can

undertake. Criminal cases are decided on the

basis of the evidence led by the prosecution

because it is the duty of the prosecution to

establish the charges framed the accused. The

defence may only create gaps and holes in the

prosecution case in order to derive benefit,

either of outright acquittal or some

reduction/modification of the offence.

Therefore, we feel that the nature and

extent of the injuries received by the witnesses

would help us to determine what had really

transpired. Witnesses say that they were

Crl. Appeal No.1071/2009 etc.

11

attacked by

eight

accused

(seven men and one woman). The accused

were armed with weapons like kulhari, bankri

(sickle), lathis and jalli. At the trial five of the

accused were convicted, three of them were the

men with lathis and one was the man armed

with a sickle, the fifth appellant was empty

handed. We may add that if Balbir Singh had

been alive, he may have found it difficult to

secure an acquittal. Balbir Singh had been

armed with a kulhari during the occurrence

and must have swung it around to inflict

injuries. It is hard to accept that the empty-

handed man or the three men holding lathis

could have caused any of the lacerated

wounds found on the deceased. The deceased

received ten lacerated wounds as per MLR and

also had some contusions. Lacerated wounds

were sickle/kulhari blows received by the

deceased while the contusions were the lathi

blows.

It is also important to notice that no

blood was found from the spot where the

prosecution witnesses say the fight had

occurred. It was recovered at the spot near the

tubewell of the accused. The witnesses had

testified that after Umed Singh had been

attacked, he was dragged to the tubewell of the

accused. We are unable to say with certainty

the extent of injuries inflicted by the accused

at the first spot. We are also unable to

determine if the deceased had himself walked

to the tubewell of the accused or whether he

had been dragged, pushed or shoved from one

place to other. The story of dragging is lacking

corroboration and becomes hard to accept.

Therefore, if Umed Singh received most of the

injuries at the tubewell of the accused, the

Crl. Appeal No.1071/2009 etc.

12

prosecution

version

certainly

gets watered down, and the defence version

gains acceptability. However, we are not

convinced that the complainant party was the

aggressor.”

5.Four appeals in all have been filed in this Court against

the judgment of the High Court – two by the accused Sher

Singh & Anr. vs. State of Haryana (Criminal Appeal No.

1071/2009), and Des Raj vs. State of Haryana (Criminal

Appeal No. 1294/2009), two each by the State (Criminal

Appeal Nos. 97-98/2010 State of Haryana vs. Des Raj & Ors.)

and the complainant Bimla, Criminal Appeal Nos. 182-183 of

2010. In the appeals filed by the State of Haryana and by the

complainant, the prayer is that the conviction recorded by the

trial court under Section 302/149 of the IPC had been wrongly

set aside by the High Court and that the judgment of the trial

court should, accordingly, be restored. All the aforesaid

matters are being disposed of by this judgment.

6.Mr. R.S.Cheema, the learned senior counsel for the

appellants in Criminal Appeal No.1071 of 2009, has raised

several arguments during the course of hearing. He has first

Crl. Appeal No.1071/2009 etc.

13

pointed out that

the FIR had been

recorded after an inordinate delay and that this delay has

been utilized by the investigating agency to evolve a false story

and to change the site of the incident from the field of Balbir

Singh to the field of the deceased Umed Singh. It has also

been pleaded that the grievous injuries on the person of

Parvati DW-9 had been suppressed by the prosecution with

the result that the very genesis of the incident was under

suspicion. It has, further, been submitted that there was no

evidence to show any close relationship inter-se appellant Sher

Singh’s family and the family of Balbir Singh appellant and

that the animosity, if any, existed was with the latter, and that

Sher Singh who was a teacher by profession, had a cast iron

alibi. It has further been pointed out that the defence

evidence on this aspect rendered by DW-1, DW-2 and DW-8

had not even been alluded to by the High Court, and if an

accused was able to create a doubt about his presence by

giving a reasonable alibi, this would be sufficient to decide the

matter in his favour. Reliance for this submission has been

Crl. Appeal No.1071/2009 etc.

14

placed by Mr.

Cheema on

Binay Kumar Singh vs. State of Bihar 1997 (1) SCC 283 and

Jayantibhai Bhenkarbhai vs. State of Gujarat 2002 (8) SCC

165. Mr. Sinha, the learned senior counsel for the appellants

in Criminal Appeal No.1294/2009 has supplemented Mr.

Cheema’s arguments by submitting that Des Raj appellant is

alleged to have only caught hold of the deceased and as the

injuries on the person of Parvati had not been explained, the

very inception of the incident was in doubt. Reliance for this

argument has been placed on Babu Ram & Ors. vs. State of

Punjab 2008 (3) SCC 709.

7.The learned counsel for the State of Haryana and the

complainant have, however, controverted the above

submissions and have pointed out that the incident had

happened in the field of Umed Singh and after injuries had

been caused to him, his wife Bimla and son Rajesh, he had

then been picked up from his field and taken to the tube well

of Balbir Singh and that this aspect was clear from the site

plan prepared by the investigating officer and the Patwari. It

Crl. Appeal No.1071/2009 etc.

15

has also been

submitted that

there was no delay in the lodging of the FIR and that there was

no obligation on the prosecution, in the facts of the case, to

explain the injuries on Parvati DW-9 and that the trial court

had dealt with this aspect and the alibi pleaded in a cogent

manner. It has finally been submitted that the observations of

the High Court that the case fell within the ambit of Section

304 Part II of the IPC and not as a case of murder were

erroneous in the light of the medical and other evidence.

8.We first deal with the argument with regard to the delay

in the lodging of the FIR. It is the admitted case that the

incident had happened at 6 a.m. on the 29

th

October 1991 in

village Kosli. Bimla’s statement Ex.PA had been recorded in

the village and on its basis the FIR had been registered at 7.20

p.m. on the same day and the special report also delivered to

the Illaqa Magistrate about 5 hours later. It is the admitted

position that the distance between Kosli and Jatusana i.e. the

place of occurrence and the police station was about 12 km.,

and Rewari and Jatusana were 25 km. apart. It is in evidence

Crl. Appeal No.1071/2009 etc.

16

that Umed Singh

had been

removed from the Primary Health Center to the Civil Hospital

and it was after he had died in the hospital that the FIR had

been recorded. It has also come in the evidence that ASI

Balbir Singh PW7 had received information about the incident

from the Primary Health Center and had gone to that place

and found that Umed Singh had been removed to the hospital

at Rewari on which he had followed him only to see that he

was already dead and it was thereafter that he had returned to

Kosli and recorded the statement of Bimla at 6 p.m. It must

also be borne in mind that in a case where the deceased is the

husband and the eye witness is the wife it is but natural that

she should be overwhelmed and completely distraught by the

turn of events and if there is some delay in the recording of

her statement that cannot be taken against the prosecution in

any way. Significantly, also the presence of Bimla and Raj

Kumar has been admitted by the defence. The defence

counsel in the course of the cross-examination put a counter

version in the following terms to Bimla:

Crl. Appeal No.1071/2009 etc.

17

“It is

incorrect

that

Ms.Parvati mother of Des Raj was harvesting

the crop in their field and her son Desh Raj was

ploughing the land at some distance and that I

and my husband and son armed with Khasi and

bankri went to her and caused injuries and Des

Raj came running on her alarm and then he too

was given injury. It is incorrect that Desh Raj,

Pappu and Raghbir gave us injuries in their self

defence.”

The delay in the lodging of the FIR, even presuming that there

is indeed some delay, looses all significance, more particularly

as both Bimla PW-2 and Raj Kumar PW-6 were injured.

9.Much emphasis has been placed by the learned counsel

on the fact that the injuries on the person of Parvati DW-9,

had not been explained. The basis for this argument is the

statement of DW4 Dr. Ravinder Nath, who had examined

Parvati at 10.30 a.m. on the 29

th

September 1991 and had

found three injuries on her person and had suggested that an

X-Ray be taken. Surprisingly, however, despite the fact that

Parvati had three painful injuries, and an X-ray had been

suggested by the doctor, Parvati was subjected to an X-ray

examination by DW7 Dr. N.K.Sharma of the ESI Hospital,

Crl. Appeal No.1071/2009 etc.

18

Faridabad on the

28

th

of October

1991 and it was at that stage that a fracture of the middle

femur bone had been detected. This doctor further stated that

the X-ray had been conducted on the directions of the Deputy

Commissioner, Rewari as well as the SHO, Jatusana, and the

Medical Officer, Primary Health Center, Kosli, but he admitted

that the X-ray film was not on the file of the case and was not

traceable at that moment and without seeing the film, he

could not comment as to the duration of the fracture. When

questioned about the delay in the X-ray examination, DW9

stated that she had made several complaints to the higher

authorities that the incident had not been properly recorded

by the police and that an X-ray was not being carried out.

When questioned further, she deposed that no copy of any

such application was with her. We are therefore of the opinion

that the prosecution was not called upon to explain the

injuries on Parvati as there was no evidence to show that they

could be connected with the incident. The judgments cited by

Crl. Appeal No.1071/2009 etc.

19

the learned

counsel are,

therefore, not relevant in the facts of the case.

10.It has also been submitted in the light of the findings

recorded by the High Court that the genesis and site of the

incident had been changed as the High Court too had not

accepted that the incident had happened in the field of Umed

Singh and that if the matter was to be carried to its logical

conclusion, the conviction of the appellants could not be

justified. It has been emphasized that the prosecution story

that Umed Singh had been dragged from his field to the

tubewell of Balbir Singh had no basis in the evidence as there

were no drag marks on the body or on the ground indicating

that the body had indeed been dragged from one place to the

other. It bears reiteration that as per the prosecution story

the incident had happened in the field of Umed Singh

whereafter he had been shifted to the tubewell of Balbir Singh

and subsequently taken to the Primary Health Centre. Sub-

Inspector Jai Narain PW8 visited the site of occurrence on the

30

th

September 1991 and took into possession two pairs of

Crl. Appeal No.1071/2009 etc.

20

chappals Ex.P3

and P4, one rapri

with a broken handle, one danti, one piece of rope and one

blood stained match box lying on the path by the side of the

occurrence which would be relevant as the complainant party

was harvesting the bajra crop. He had, thereafter, examined

the place surrounding the tubewell and recovered blood

stained earth from that place in the presence of Bhagat Singh,

Sarpanch. It is perhaps even more significant that in the site

plan PW prepared by this Police Officer, the prosecution story

is clearly spelt out. Mark A in the site plan is the place where

the injuries are alleged to have been caused to Umed Singh,

his wife Bimla and to Raj Kumar and also the place from

where two pairs of chappals, a broken bankri and a danti had

been picked up. Mark B is the place where the rope was lying

and the distance from Mark A to Mark B is 14 karams. Mark

C in the site plan is the place where the blood stained match

box had been picked up and the distance between Mark A and

C is 17 karams and Mark D is the place from where blood

stained earth had been picked up from the field of Balbir

Crl. Appeal No.1071/2009 etc.

21

Singh and the

distance from

Mark A to Mark D is 294 karams. (Note: One karam is about 5

feet) It is significant that the site plan Ex.PW prepared by the

police officer corresponds entirely with the site plan Ex.PG

prepared by the Patwari. The two site plans indicate that

when Umed Singh was dragged or lifted from Mark A to Mark

D, several items which had been on his person had fallen en

route and this is borne out by the recoveries noted above. To

our mind, the plans which were prepared almost

contemporaneously to the incident, prove the case of the

prosecution with regard to the site of the incident beyond any

doubt. The observation of the High Court, therefore, that

there appeared to be some confusion about the place of

incident is completely misplaced. In that eventuality, also the

possibility that a large number of persons had been involved in

the incident, cannot be ruled out, as it would not have been

possible for a few persons to have carried Umed Singh to a

distance 294 karams from point A to D. It must, therefore, be

held that the circumstances indicate that all the appellants

Crl. Appeal No.1071/2009 etc.

22

were in fact

participants in

the murder.

11.It is true that the High Court has not dealt with the

question of alibi and has not referred to this aspect or to the

evidence of DWs-1, 2 and 8. We have, however, examined the

evidence of these witnesses in the light of the other evidence

and find that the alibi cannot be accepted. PW-10, the I.O.

admitted that Sher Singh had, at the very initial stage, pleaded

an alibi and that he had investigated this plea. The defence

also produced the three witnesses aforementioned to prove the

alibi and they unanimously stated that Sher Singh had been

taking tuitions and his son Harish, too, was present in the

house at that time. However, it appears that this defence was

an after thought as there was no suggestion to the prosecution

witnesses that Sher Singh had been taking tuitions or that

Harish was asleep in the house. More significantly, however,

Sher Singh, in his statement under Section 313 of the Cr.P.C.

did not take this plea and in fact the plea put up was that one

Bhagwan Devi had visited his house to get some lassi and was

Crl. Appeal No.1071/2009 etc.

23

the witness of

the alibi.

Bhagwan Devi was not produced as a witness. We also see

from the cross-examination of the defence witnesses that there

is nothing to suggest that Sher Singh or his son Harish were

present in the house. In any case we find that the place of

occurrence was about 2 km. away from the village and it was,

therefore, possible for them to have participated in the crime

and then rushed back to the village. We are, therefore, of the

opinion that there is no evidence to suggest whatsoever or to

create a doubt with regard to the involvement of either Sher

Singh or his son Harish on the basis of the alibi. The

judgments cited by Mr. Cheema on this aspect, therefore, have

no applicability.

12.We now come to the State appeal as well as the appeal

filed by the complainant with regard to the nature of the

offence. The High Court has relied upon several judgments of

this Court to hold that as most of the injuries were superficial

and on non vital parts of the body, there was no intention to

cause death, and the accused were, thus, liable to be

Crl. Appeal No.1071/2009 etc.

24

convicted under

Section 304 Part

II of the IPC for culpable homicide not amounting to murder.

The reasons given by the High Court are reproduced herein

below:

“We are of the view that the conviction of

the accused under Section 302 read with

Section 149 IPC cannot be sustained. The act

of the appellants was done without any

intention to cause death or to cause such

bodily injury as was likely to cause death. Des

Raj was empty handed,Mange Ram,Sher Singh

and Harish were armed with lathis. Only

Surender was armed with a bankri. The spread

nature and extent of injuries on the deceased

also support our view that the appellants had

committed manslaughter and not murder.

They are guilty under Section 304 Part II read

with Section 149 IPC. The conviction of the

appellants is converted from under Section

302 read with Section 149 IPC to one under

Section 304 Part II read with Section 149 IPC.

Their sentence is reduced from life

imprisonment to five years rigorous

imprisonment and fine of Rs.50,000/- each (in

default a further period of one year rigorous

imprisonment). The conviction of the

appellants for the other offences and sentences

awarded by the learned Sessions Judge are

upheld. These sentences shall run

concurrently. Fine if recovered, shall be paid

to the heirs of Umed Singh deceased. The

appellants are on bail, they shall be taken into

custody forthwith to under remaining part of

their sentence.”

Crl. Appeal No.1071/2009 etc.

25

13.The learned

counsel for the State of Haryana and the learned counsel for

the complainant have serious objection to the observations

made by the High Court on this score. We notice that the

High Court was influenced in its decision as the injuries had

largely been caused on non vital parts of the body. We have,

however, carefully examined the medical evidence. PW-4 Dr.

V.K.Jain who performed the post-mortem on the dead body on

the 30

th

September 1991 found the following injuries on the

person of the deceased:

“1.Brownish bruise of size 20 cm x 2 cm over left side

of chest in upper part, above the left

nipple,horizontally traced.

2. Brownish contusion of size 7 cm x 1.5 cm with

abrasion of size 2 cm x 1 cm over left upper arms in

lower 1/3

rd

.

3. Abrasion of size 3 cm x 1 cm over posterior aspect of

left upper arm in lower 1/3

rd

.

4. Diffused swelling over the posterior aspect of left

fore arm in middle 1/3

rd

with abrasion of size 8 cm x

1.5 cm over the swelling.

5. Abrasion of size 5 cm x 1 cm over posterolateral

aspect of left forearm 4 cm away from injury No.4.

6.Switched wound of x 3 cm length over base of a

middle finger of left hand over posterior aspect with

swelling around.

Crl. Appeal No.1071/2009 etc.

26

7.

Multiple

mark of

small abrasion over the posterior aspect of left hand at

the base of middle, ring and little finger.

8. Brownish contusion of size 10 cm x 2 cm over

postero lateral aspect of right upper arm in lower half.

9. Brownish contusion of size 12 cm x 2 cm over

postero lateral aspect of right upper arm in lower

1/3

rd

, 5 cm below the injury No.8.

10. Switched wound of size 4 cm over posteromedical

aspect of left forearm in middle 1/3 with swelling

around.

11. Brownish contusion of size 10 cm x 2 cm over

posterior aspect of right forearm in lower 1/3

rd

, with

abrasion of 3 cm x 1 cm over the swelling. There is

fracture of both bones of right forearm.

12.Switched wound of size 1 cm x 0.5 cm over base of

right index finger with swelling around.

13. Brownish contusion of size 12 cm x 2 cm over

back of chest of left scapular region.

14 Brownish contusion of size 15 cm x 2 cm over back

of chest in right scapular region.

15. There is multiple marks of brownish contusion of

different sizes over whole of back below the scapular

region down to the lumbosaeral region also on the

posterolateral aspect of back. One bruise is crossing

the other soit is not possible to count all and describe

separately.

16. There is diffused swelling over the left leg in upper

½ at and below the knee joint. There is abrasion mark

of size 6 cm x 1 cm over the swelling. Both bones of

left leg are fracture in upper third.

17. There is stitched wound of 3 cm length over left leg

in upper 1/3

rd

.

18. Diffused swelling over the anterior aspect of left

foot fracture of 3

rd

and 4

th

…………….bone s.

19. Stitched wound of size 3 cm in length over medical

aspect of left foot.

Crl. Appeal No.1071/2009 etc.

27

20.

Stitched

wound of

size 1.5 cm over base of nail bud of left great toe.

21. Reddish abrasion of 7 cm x 1 cm chin of right leg

in upper half.

22. There is stitched wound of 4 cm length 3 cm

lateral to the injury No.21.

23. There is diffused swelling over right leg in lower

half with brownish contusion over the sizes 7 cm x 2

cm.

24. There is stitched wound of size 7 cm in length one

chin of right leg in lower 1/3

rd

.

25. Stitched of size 5 cm in length over medical aspect

of right foot.

26. Brownish contusion of size 12 cm x 2 cm over

lateral aspect of right thigh.

14.26 injuries in all were found on the person of the

deceased. Injury No.11 was a fracture of both bones of the

right forearm. Injury No.16 was a fracture of both bones of

the left leg in the upper third and Injury No.18 was a fracture

of the left foot. We also see that Injuries No.1, 13, 14 and 15

were caused on vital parts of the body. We have also minutely

examined the post-mortem report Ex.PD. In addition to the

above fractures, two other injuries were detected thereon

which are not referred to in the statement of the Doctor.

These are a fracture of the 9

th

and 10

th

ribs on the right side

which had lacerated the underlying liver and when the

Crl. Appeal No.1071/2009 etc.

28

abdomen had

been opened 200

ml. of blood had been found in the peritoneal cavity and a

hepatic haematoma with another 400 ml. of blood had been

seen in the retroperitoneal cavity and the liver too was found

to be lacerated along side the fractured ribs which also

indicated heavy bleeding. The doctor also opined that the

injuries were sufficient to cause death in the ordinary course

of nature.

15.A perusal of these injuries and the post-mortem report

clearly reveal that the intention of the accused was evident

and that was to cause death and merely because most of the

injuries were on the extremities would not be a reason to bring

the case within Section 304 Part II of the IPC more particularly

as the doctor had opined that they were sufficient to cause

death in the ordinary course of nature. It appears that great

damage had been caused as the fracture of the 9

th

and 10

th

ribs had damaged vital organs both in the abdominal and

thoracic cavities. The judgments relied upon by the Division

Bench to hold that the case would fall within Section 304 Part

Crl. Appeal No.1071/2009 etc.

29

II are on their

peculiar facts. It

is true, that as per the statement of the two eye witnesses,

some of the accused were armed with cutting weapons and

there are no incised injuries on the person of the deceased.

The post-mortem report, however, says that no opinion could

be given with regard to the weapons used for injury Nos. 6, 10,

12, 17 to 20, 22, 24 and 25 as the said injuries had been

stitched up at the time when Umed Singh was still alive. The

post-mortem Doctor, however, testified that all the other

injuries were blunt weapon injuries. It has also come in

evidence that some of the cutting weapons had been used from

the wrong side as well. We are, therefore, of the opinion that

the judgment of the High Court cannot be sustained in fact or

in law. Criminal Appeal Nos. 1071/2009 and 1294/2009 Sher

Singh vs. State of Haryana and Des Raj vs. State of Haryana

are, accordingly, dismissed whereas Criminal Appeal Nos. 97-

98/2010 and 182-183/2010 are allowed. Ipso-facto the

judgment of the trial court is restored in all respects. The

appeals are disposed of as above.

Crl. Appeal No.1071/2009 etc.

30

……………………………. .J.

(HARJIT SINGH BEDI)

……………………………. .J.

(CHANDRAMAULI KR. PRASAD)

DECEMBER 16, 2010

NEW DELHI.

Crl. Appeal No.1071/2009 etc.

31