DHARAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE three appellants, namely, Dharam, Raj Singh and Raj Kumar, alongwith two others, Kitaba and Bijender, faced trial in Sessions case No. 135 of 1994 (Sonipat) for having committed offences under Sections 148, 302, 323 and 324/149 of the Indian Penal Code, 1860 (for short "IPC"). THE Trial Court found them guilty; convicted them for offences punishable under all the aforementioned Sections and sentenced them to suffer the following punishments: <FRM>JUDGEMENT_531_TLPRE0_2006Html1.htm</FRM> All the convicts preferred common appeal to the Punjab and Haryana High Court, but were unsuccessful. This appeal by special leave is brought by the three appellants before us against the order of the High Court.

(2.) THE appellants and the deceased are closely related. Appellant no.1, including the deceased - Partap Singh, were seven brothers, out of whom he and four others were from one mother and two from the other. THE case set up by the prosecution, in brief, was that on 16.7.1999 Amarjit (PW-8) son of the deceased made a statement before the S.H.O., Police Station Gohana to the effect that Partap Singh along with his four brothers from one mother were having a joint khewat. One of the brothers, namely, Haria was unmarried and was living with his father, who also used to cultivate the share of land belonging to Haria. However, his uncle, appellant no.1 and his sons, Raj Singh and Raj Kanwal (as per High Court Judgment), appellants no.2 and 3 respectively as well as Kitaba, his uncle and Bijender s/o Kitaba were holding a grudge against his father, the deceased, for not partitioning the land belonging to Haria. A day before the incident all of them had asked his father to divide the land of Haria, failing which he would not be allowed to see the sun of the next day. On 16.7.1999 at about 6.00 a.m., he alongwith his mother and father - the deceased, his uncles Jagdish and Raghbir had gone to the fields to fetch grass; all the aforementioned five persons came to the fields belonging to the deceased and his brothers and started erecting a boundary wall; when they were stopped from doing so, all the five went towards their tube well and came back with arms, namely, Phali and Farsas; Dharam raised a Lalkara to teach a lesson to the deceased's party for not permitting the raising of boundary, upon which Bijender gave a spear blow on the head of the deceased whereas Raj Singh gave second spear blow on the head of the deceased; when he and others intervened, Bijender hit him with a spear in the right arm. Raj Kumar and Dharam (as per the Trial Court Judgment) also gave spear blows on the head of the deceased, as a result whereof he fell down and when his uncle Raghbir intervened, Kitaba inflicted a Phali blow on the left side of his chest. In the meanwhile, crowd gathered at the spot and on seeing them all the five accused fled alongwith their respective weapons. THE deceased was brought to Civil Hospital, Gohana where he was declared brought dead. Dr. Rajesh Kumar, PW-12 conducted the post mortem on the dead body of the deceased and found the following injuries on his person:

(3.) MR. Jaspal Singh, learned senior counsel, appearing for the appellants has assailed the conviction of the appellants mainly on the ground that the plea of self defence raised by the appellants has not been considered in its correct perspective both by the Trial Court as well as the High Court. It is argued that in fact the High Court has altogether failed to consider this aspect of the matter. It is submitted that in the incident, in which the two parties clashed and there were allegations of assaults on each other, it was the duty of the prosecution to have explained the injuries sustained by the appellants, particularly appellant no. 1, who had six serious injuries on his person. It is urged that non-explanation of the injuries sustained by the members of the accused party shows that the prosecution has not come out with the truthful version of the incident and has suppressed the genesis of the crime. Learned counsel has drawn our attention to the evidence of PW-12, who had examined appellants No. 1 and 3 and other members of their party, to buttress the argument that the nature of injuries sustained by the appellants indicate that they had suffered injuries in exercise of right of private defence. In the alternative, learned senior counsel has contended that it being a case of sudden fight, the case falls within the ambit of sub-section (4) of Section 300 IPC and, therefore, at best offence under Section 304 part-I or II could be made out against the appellants.