Arijit Pasayat, J. - (1.) LEAVE granted.
(2.) THESE three appeals relate to the Judgment of a Division Bench of the Punjab and Haryana High Court dealing with Criminal Appeal No. 366-SB of 1999, Criminal Appeal No. 557-DB A of 1999 and Criminal Revision No. 788 of 1999. The first Criminal appeal was filed by the present Appellants. The second criminal appeal was filed by the State of Haryana and the third, i.e. Criminal Revision Petition was filed by the Complainant Gulam Bashir. Background facts in a nutshell are as follows. Originally there were 11 accused persons and they were the Appellants in Criminal Appeal No. 366-SB of 1999. They were convicted for offences punishable under Sections 148, 302 Part II read with Sections 149, 325 read with Sections 149, 324 read with Sections 149 and 323 read with Section 149 of the Indian Penal Code, 1860 (in short the "IPC"). They were convicted in the following manner: JUDGEMENT_1937_UJ4_2009Html1.htm
(3.) STATE of Haryana also filed the appeal dissatisfied with the acquittal of all the accused for the main charge of Section 302 read with Section 149 IPC. Complainant also filed the separate Revision Petition with similar prayer and for grant of compensation. Background facts, as projected by the prosecution during trial, are essentially as follows: The instant case was registered on the basis of statement Exh. P.A. of Gulam Rasool Complainant. His real brother Habib is described hereinafter, as deceased in this case, who according to the allegations on 1st August, 1988 had gone to the school building in the village for filing nomination papers for election of Sarpanch. Complainant Gulam Rasool was accompanying him. Habib was to contest the election of Sarpanch. At about 11 a.m. when they came out of the said school building, accused Samey Singh and Dharam Singh armed with Pharsa each and remaining accused present there had lathies in their hands. When Complainant and Habib came out of the school, Samey Singh accused gave a lalkara saying that they should be killed (in village parlance, it is stated, "Inhe Maar Lo"). Thereafter, Samey Singh accused gave Pharsa blow on the head of Gulam Rasool and Siri Kishan gave a lathi blow on the head of Habib. Accused Sohrab also gave a lathi blow on the back of Gulam Rasool touching his neck. Accused Mamman also gave a lathi blow on his back. It, is then alleged that when Jan Mohammad son of Sultan, Suleman and another Jan Mohammad son of Shakurmal reached there on hearing the noise and tried to intervene in order to rescue the Complainant party, accused Indraj and Kanwar Singh gave lathi blows to Habib who was already lying down. The blow inflicted by Kanwar Singh hit the waist of Habib whereas lathi blow given by accused Indraj hit him on his back. Dharam Singh, Dalip Singh, Indraj and Kanwar Singh accused had hit Jan Mohamniad son of Shakurmal on right side of head, right forearm, right hand, right shoulder and the right arm. Jan Mohammad son of Sultan, Gulam Rasool, his brother Habib, Jan Mohammad son of Shakurmal and Shakurmal had sustained inuries in this occurrence and they were removed to hospital. A ruqa was sent to Police Station Tauru, from where Om Parkash, SI, SHO (P.W. 11) reached the hospital and recorded statement Exh. PA of Gulam Rasool, on the basis of which formal FIR Exh. PA/2 was recorded. Gulam Rasool and Habib were referred to General Hospital, Gurgaon and from there to Safdarjang Hospital, New Delhi, where Habib succumbed to the injuries on 2nd August, 1988. Initially, the case was registered under Sections 148, 149, 324, 323, 506 IPC and after the death of Habib Section 302 IPC was added. During the investigation the accused persons were arrested on different dates and weapons of offence were recovered from them, which were taken into possession. After the completion of the investigation, all the accused were challaned. It is worth mentioning here that since Siri Kishan accused was serving in Indian Army, proceedings were initiated against him after obtaining sanction from the concerned Commanding Officer. This was the reason that a supplementary challan was filed qua him and ultimately all the accused were tried together. Charge under Sections 148, 302, 323, 325, 324 and 323 read with Section 149 IPC were framed against all the 11 accused. The prosecution in order to substantiate its case examined Gulam Rasool, Complainant as P.W. 1 who had given the detailed description of the entire occurrence as already narrated by him in his initial statement Exh. PA. P.W. 2 is Suleman son of Jayudin the other injured witness. He also corroborated the testimony of Gulam Rasool on all material aspects describing the specific role of each of the accused. P.W. 3 is Mul Chand Punia, the Draftsman had prepared the scaled Plan Exh. PB of the place of occurrence. P.W. 4 is Ram Chander who while posted as Sub Inspector in Police Station City Gurgaon had moved an application on 2nd August, 1988 for obtaining the medical opinion on Habib injured with respect to his fitness to make statement. Dr. S.P. Singh (P.W. 5) who was posted in the General Hospital, Gurgaon, on 1st August, 1988 examined Hubib Suleman, Gulam Rasool, Jan Mohammad son of Sultan and Jan Mohammad son of Shakur Mal. The said witness also was cross examined to show that on 3rd August, 1988 he had examined accused Prasadi Lal under the Court Orders and found some injuries. Dr. B.B. Aggarwal (P.W. 6} had radiologically examined Jan Mohammad son of Shakur Mal, Suleman and found one fracture one injury each. Dr. S.K. Verma (P.W. 10) had conducted autopsy on the dead body of Habib. The plea taken by the accused, as is evident from their statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the "Code"), was of false implication. However, accused Prasadi Lal stated that a large crowd had collected at the spot at the time of occurrence and many persons out of the crowd had started throwing stones on the Complainant party as a result of which they had received injuries. He had further stated that the accused had been falsely implicated on account of party fraction in the village. Seven witnesses were examined to further the defence version. The Trial Court, as noted above, on consideration of the evidence found the accused persons guilty and convicted and sentenced them. Primary stand of the accused persons before the High Court in the appeal filed by them was that Indraj had not filed nomination papers at the time of occurrence and the finding of the Trial Court that Indraj had already filed nomination is not correct. It was also pointed out that the ocular testimony stands falsified by the medical evidence and in any event the case being one of free fight at the most each accused can be fastened with individual liability taking into consideration the specific role or part attributed to each of the accused. In any event Sections 148 and 149 had no application. It is pointed out that Accused No. 1 was serving in the army and had been falsely implicated. In the revision filed before the High Court, the Complainant adopted the stand of the State and also in addition prayed for compensation. By the impugned Judgment the High Court disposed of the Criminal appeal and the Revision dismissing each one of them.;