MAKHAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Makhan Singh and Pappiappellants were tried by the learned Additional Sessions Judge, Sirsa on the charge of murder of Madan Lal in furtherance of their common intention. Ultimately the Trial Court found Makhan Singh appellant guilty of the charge under section 302 of the Indian Penal Code for the said murder while Pappiappellant was acquitted of the charge under section 302/34 of the Indian Penal Code holding that provisions of section 34 of the Indian Penal Code were not attracted in his case to make him vicariously liable for the acts of his coaccused Makhan Singh. He was found guilty under section 323 of the Indian Penal Code. Makhan Singh appellant was ordered to suffer rigorous imprisonment for life and to pay a fine of Rs. 30,000/- or in default of payment thereof to further suffer three years rigorous imprisonment. The entire amount of fine, if realised, wasT ordered to be released as compensation to Smt. Nirmia Davis widow of the deceased. Pappi appellant was awarded six months rigorous imprisonment and to pay a fine of Rs. 1000/- or in default of payment thereof to further suffer one month rigorous imprisonment for offence under section 323 of the Indian Penal Code. Feeling aggrieved against the above referred order of conviction and sentence of the Trial Court the appellants have come up in this appeal.Smt. Nirmla Devi complainant had also preferred Criminal Revisions No. 242 of 1992 for enhancement of sentence. Both these matters shall be disposed of by this judgment as they arise out of the same judgment of the Trial Court and rest upon the same evidence.

(2.) In brief, the facts of the prosecution case are that Madan Lal deceased was posted as Headmaster in the Government High School, Village Sangha in Punjab. He alongwith his wife Smt. Nirmla Devi (P.W. 1) used to reside in Ding Mandi in Haryana. On 6th August, 1990 Mst. Nirmla Devi had gone to her brother Poran Chand on the eve of raksha-bandhan ceremony while her husband Madan Lal had gone to the said school. The deceased joined her at about4.00 or 5.00 P.M. Thereafter both of them caught a fitter of Banwari Fauji from Bus Stand Ding Mor at 5.45 P.M. for going to Ding Mandi Two or three other passengers were also travelling in that fitter (an improvised vehicle). The said fitter had hardly covered a distance of four or five kill as towards Ding Mandi when Makhan and Pappi accused blocked their passage by parking their fitter in front of fitter of Banwari Fauji. They exchanged hot words with Banwari saying as to why he had availed of their turn in lifting the passengers. Madan Lal deceased intervened saying that they had only paid small amount of Rs. 4/- towards fare and the accused should not harass the passengers. Both the accused then got furious. Makhan Singh accused then dealt blow with iron rod on the forehead of Madan Lal while Pappi accused gave blows with chappa (dry branches of thorny bush tree). Madan Lal fell down unconscious Mst Nirmla Devi raised alarm upon which Banwari Fauji managed to slip away from the spot. Both the accused then placed Madan Lal injured in their fitter and Mst. Nirmla Devi also boarded the said finer and they then brought them to the clinic of Dr. Bhargav at Ding Mandi but the doctor was not available. Then they left the victim and Mst. Nirmla Devi at the said place and went away. In the meanwhile Chaman Lal, brother of the deceased, and Shiv Charan Dass, uncle of Smt. Nirmla Devi also arrived there and took the victim in a jeep to Civil Hospital, Sirsa, where the doctor declared him dead. Smt. Nirmla Devi then lost consciousness. The concerned doctor sent a message to the local police about the arrival of the dead body of Madan Lal, the local police in turn sent a message to the police of Police Station Ding, which was received by ASI Ishwar Singh P.W. 4 at 9.00 P.M. He then rushed to the Civil Hospital, Sirsa at 9.30 P.M. The dead body of Madan Lal lay in the mortuary. Mst. Nirmla Devi, Shiv Charan Dass, Chaman Lal and Pawan Kumar were present near the dead body. Mst. Nirmla Devi regained consciousness after about one hour. Chaman Lal and Shiv Charan Dass witnesses had pleaded ignorance about the facts of the case. The AS I recorded statement EX. P.A. of Mst. Nirmla Devi which was concluded at 12.30 A.M. and on its basis a case under section on 304/34 of the Indian Penal Code was got registered against the accused at Police Station Ding vide F.I.R. Ex. PA/i at 2.00 A.M. through A.S.I. Risal Singh. A.S.I. Ishwar Singh also drafted inquest report Ex. P.C. of the dead body of Madan Lal and entrusted it to Constables Rajinder Singh and Wazir Singh for autopsy. He also recorded the statements of Chaman Lal and Shiv Charan Dass witnesses. Thereafter he arrived at the spot at 7.30 A.M. on the next morning. He inspected the spot in the presence of Mst. Nirmla Devi and Shiv Charan Dass witnesses and prepared its visual site plan Ex. P.B. He failed to locate the accused despite search. Dr. Ajay Kumar Gupta (P.W. 6) conducted autopsy on the dead body of Madan Lal at Civil Hospital, Sirsa on 7th August, 1990 at 11.4S A.M. He found six abrasions on the dead body out of which five were located on different portions of the forehead and face while one abrasion located on the left fore-arm just below the elbow. On opening of the skull, there was both extra-dural as well as subdural haemotoma mainly towards right side pushing the brain towards (the left. Entra cerebral infusion of blood was seen on dissection of brain. All these injuries were found antemortem in nature and head injuries were found sufficient to cause death in the ordinary course of nature.Both the accused continued absconding till 6.30 P.M. of 9th August, 1990 when Balbir Singh, Sarpanch produced both the accused near the railway station before ASI Ishwar Singh. Makhan Singh produced iron rod Ex. P. 1 which was taken into possession vide memo Ex. P.G. Pappi accused also produced wooden chappa Ex. P. 2 which was also taken into possession. ASI Ishwar Singh also recorded statements of Some other witnesses and after completion of investigation both the accused were arraigned for trial on such like allegations.

(3.) Before the Trial Court in order to prove its above referred case the prosecution examined five witnesses including the tendering of formal evidence of Constable Rajinder Singh on affidavit Mst. Nirmla Devi supported the above referred version of the prosecution.