VASUDEV Vs. THE STATE OF HARYANA

JUDGEMENT

(1.) AT 6.05 A.M. on August 16-1-88 Surinder Singh injured eye-witness of the occurrence taking place at 5.00 P.M. on August 15, 1988 reported to ST Ami Lal in Civil Hospital, Narnaul, "I am a resident of village Surana and read in Ten+ Two class in a school at Narnaul. Yesterday, at about 5.00 P.M. I was coming back from the next well after ploughing the field by a tractor. Ahead of me Pawan son of Lila Ram was coming to the village on his tractor. When we reached near the Govt. Primary School Pawan suddenly applied brakes of his tractor and stopped the same. I also applied brakes my tractor but inspite of my best efforts my tractor slightly struck - against the tractor of Pawan. Then Pawan got down from his tractor and came near my tractor. Immediately after reaching there he started calling bad names to me in the name of mother and sister and he pulled me down from the tractor as a result of which I received injuries on my mouth, hand and neck. When I raised a raula, my uncles (father's younger brothers) Hukam Singh, Mahabir Singh and my grand father Budh Ram came there and from the other side, Gian Singh son of Lila Ram, Bhola Ram and Mukesh sons of Duli Chand and Vasu Dev son of Ramji Lal, residents of the village armed with lathis came there. When my uncles Mahabir and Hukam Singh were rescuing me from Pawan, Gian Parkash said, "it is an opportunity, Mahabir should not be escaped." Immediately after saying so, Gian Parkash gave a lathi blow on the head of my uncle, (father's younger brother) Mahabir. He gave another lathi blow thrustwise on the right eye. of my uncle Mahabir and gave another blow with lathi on the chest of Mahabir. After receiving the said injuries, my uncle (father's younger brother) Mahabir fell down on the ground. While, he was lying fallen, Pawan gave a lathi blow on his right thumb. Then Vasu Dev s/o Ramji Lal took out a rod from the tractor and gave its blow on the right thigh of my uncle (father's younger brother) Mahabir. Thereafter Bhola Ram s/o Duli Chand gave 5-6 lathi blows to my uncle Hukam Singh which, hit on his head and the left hand. Then Mukesh gave three lathi blows to my uncle chach)a Hukam Singh which hit on his left shoulder and the chest. When my grandfather Budh Ram tried to separate us, Pawan Kumar and Gian Parkash caught hold of him and Mukesh and Vasu Dev caused him injuries with lathis and rod which hit on his chest, abdomen, hip joint, hands and the (legs) (torn). He also received injuries on his neck. As we raised a raula of "Bachao Bachao" (save. save), Vijay Singh son of Dhanu Ram, Lala Ram son of Panna Ram, Ahir by caste, residents of the village, who were sitting in the Khatod nearby and were witnessing the occurrence, came there while run and rescued us from the assailants; otherwise they would have caused more injuries to us.

(2.) ON being charged with the commission of offences under Sections 148, 302/149, 325/149 and 323/149 of the Indian Penal Code, all the five accused pleaded 'not guilty' thereto and claimed to be tried. Vide its impugned judgment dated June 6, 1989 learned trial court held all the five accused guilty of the offence with which they stood charged Vide its sentening order dated June 15, 1989 learned trial court gave-to three accused named Bhola, Mukesh and Pawan Kumar; who were less than 21 years of age on the date of occurrence, the benefit of seven years detention in Borstal institute in terms of Punjab Borstal Act. Remaining two accused in Gian Parkash and Vasudev were awarded imprisonment for life for their conviction under Section 302 read with Section 149 of the Indian Penal Code and fined Rs. 1000/- each. In default of payment of fine each one of them was ordered to undergo rigorous imprisonment for a further period of six months. For their conviction under Section 148 of the Indian Penal Code each one of the two accused aforesaid was awarded rigorous imprisonment for a period of one year. In respect of the conviction under Section 325, 149 of the Indian Penal Code each one of the two accused aforesaid Was sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs. 500/- each. In default of payment of fine each one of them was ordered to undergo individually rigorous imprisonment for a period of three months. They were awarded rigorous imprisonment each for a period of one year under Section 323/149 Indian Penal Code. Feeling aggrieved therefrom all the five convicted accused have jointly filed Criminal Appeal No. 259-DB of 1989. in this Court. The State of Haryana has filed Cri. Appeal No. 272-DB/90 for enhancement of sentence awarded to the three accused dealt with under the Punjab Borstal Act. Surinder Singh of the complainant party has filed Criminal Revision No. 1082 of 1989 for enhancement of sentence and claiming compensation for death of Mahabir and injuries to the other injured. Since the two Criminal- appeals as also criminal revisions, all the three, arise out of the same impugned judgment of the learned trial court and involve common questions- of law and fact for determination, these have been heard and are being disposed of together.

(3.) WITH reference to the observations made in Thulia Kali v. State of Tamil Nadu, AIR 1973 Supreme Court 501 it has been contended on, behalf of the appellants that FIR recorded at 6.05 A.M. - on August 16, 1988 in respect of the occurrence allegedly taking place at 5.00 P.M. on August 15, 1988 should not be relied upon because the delay resulted in embellishments which are a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the-delay in the lodging of the first information report should be satisfactorily explained. Since the delay in lodging the FIR was held by the learned trial court in its impugned judgment to have been duly explained, the argument obviously loses all merit and the observations made in the authority cited get duly complied with. The relevant observations made by the learned trial court in this regard read, Now, condition of Mahabir and Budh Rain was serious. That being so, first anxiety of the injured was to provide medical aid to them. Even other wise, this is not the case that at that time investigating officer knew the injured or somebody had properly disclosed their identity to him. Again investigating officer had sought opinion of the doctor vide Ex PK if Mahabir was fit to make statement at 10.00 P.M. but he was not found fit to make statement. Investigating Officer also sought opinion of the doctor vide Ex. PF if Surinder, Budh Ram and Hukam Chand were fit to make statement. On it, the doctor opined vide Ex PF/1 that Surender Singh and Budh Ram were unfit to make statement whereas Hukam Chand was not admitted in the hospital. Investigating Officer had sought opinion at 10-30 P. M. Again on 16-8-1988 at 4.00 A M., Ami Lal, Sub Inspector sought opinion of the doctor if Mahabir, Surinder and Budh Rain were fit to make statement. On it, doctor vide Ex. PL/1 opined that Surinder was fit to make statement and Mahabir and Budh Ram had been referred to Medical College and Hospital, Rohtak. This opinion was given on application submitted at 4.00 AM on 15.6.88. Statement of Surender Singh was recorded at 5.40 AM. It is argued that atleast Hukam Chand had not been admitted in the hospital which means that he was quite fit and so, his statement should have been recorded. Now, deposition of PW10 Surender Singh shows that as condition of Mahabir and Budh Ram, became serious, they were referred to Medical College and Hospital, Rohtak and Hukam Chand and Vijay Singh accompanied them but Hukam Chand got down at Mahendergarh. It is argued that there was no male member to look after the children and ladies and so, Hukam Chand got down and went to the village to look after them. Learned defence counsel argues that if anxiety of the injured was to look after Mahabir, then Hukam Chand should have got down and gone back to look after children and not ladies. There seeme to be no force in this contention. Accused had run away with their, respective weapons. If one male member was sent back to look after children, and ladies, no exception can be taken to it." In this view of the matter delay in lodging the FIR gets duly explained.