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2007 Supreme(P&H) 2184
2008(1) LAW HERALD (P&H) 504
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mahesh Grover
Crl.A.No.644-SB of 1996
Daya Ram
v.
State of Haryana
{Decided on 14/12/2007}
For the Appellants:Mr. K.S. Sidhu, Sr. Advocate with Mr. Vikrant Oberoi, Advocate.
For the Respondent:Ms. Shalini Attri, Asstt. Advocate General, Haryana.
IMPORTANT POINTS
Testimony of Complainant-Attempt to Murder-- The complainant trying to implicate more persons on account of his previous enmity, his testimony therefore becomes not entirely creditworthy.
Headnote:Right of private defence-Burden of Proof--Serious tussle over possession of the property was going on-Whether the complaint was aggressor or the accused-The prosecution has to remove that cloud of haze of allegations and counter allegations conclusively.
(A) Penal Code, 1860, Sections 307,323, 506, 148, 149 and 325 -Attempt to Murder--Right of Private defence-Grevious Hurt--Dispute regarding possession of property-Plea of self defence-Appellant 'D' admitted the occurrence and stated that he acted to defend his possession-Complainant was unarmed-He cannot escape the liability of causing more injuries-Appellant had acted in excess of his defence. (Para 25 and 26)
(B) Penal Code, 1860-Section 99--Right of private defence- Burden of Proof--Serious tussle over possession of the property was going on-Whether the complaint was aggressor or the accused-The prosecution has to remove that cloud of haze of allegations and counter allegations conclusively. (Para 16)
(C) Penal Code, 1860, Section 307- Attempt to Murder---Reduction in sentence-Occurrence had taken place on 24.10.1991-Appellant has been facing the brunt of the criminal proceedings since then--Appellant was aged 60/62 years at the time of occurrence-Sentence of the appellant reduced to that of already undergone provided he pays a compensation of Rs.25,000/- to be paid to the injured. (Para 28)
(D) Penal Code, 1860, Sections 307, 506 and 34- Attempt to Murder -Previous enmity between the parties-All the three accused were armed with iron rods-It is possible that the injuries were caused by one person only-All the three injuries were lacerated wound-Appellant 'D' admitted the occurrence and alleged to acted to defend his possession over the property-Conviction of appellant 'D' upheld-Other two appellants acquitted. Held; Interalia-The complainant trying to implicate more persons on account of his previous enmity, his testimony therefore becomes not entirely creditworthy. (Para 24)
(E) Evidence Act, 1872-Testimony of Complainant-Attempt to Murder-- The complainant trying to implicate more persons on account of his previous enmity, his testimony therefore becomes not entirely creditworthy.
Mahesh Grover, J.:-On 24.10.1991 at about 9.45 a.m., an incident is said to have occurred in which appellant Daya Ram and four other persons, namely, Jiya Lal, Rakesh Kumar alias Kaka, Vijay Kumar alias Kala and Dharamender Kumar alias Billa are said to have caused the following injuries to Surinder Kumar Chawla :-
1. Lacerated wound on the right side of the forehead 7 cm x 1 cm bone deep. Bleeding was present. Pupils were constricted bilaterally, sluggish reaction to light. Advised x-ray skull AP & lateral view.
2. Lacerated wound 1 cm. x .25 cm. over the upper part of the nose. Bleeding from the nose was present. Advised x-ray nasal bone AP and lateral.
3. Lacerated wound 1 cm. x .5 cm. over the right upper leg in the lower 1/3rd. Bleeding was present.
2. The cause for dispute related to the possession of some property of which Daya Ram and Jiya Lal were in possession. They had sought protection of their possession from the civil court as well.
3. The property belonged to one Ishar Dass of Delhi of which Rajinder Kumar Chawla, brother of the injured, was the power of attorney.
4. The possession was being hotly contested which resulted in bad blood between the parties. The FIR was lodged on 25.10.1991 at 10.40 a.m. by PW9 Virender Kumar Chawla, another brother of the injured.
5. The police, after completing the investigation, submitted a challan against all the five accused persons under the provisions of Sections 323, 506, 148, 149 and 325 of the Indian Penal Code. Subsequently, one of the injuries on the person of the injured was declared to be dangerous to life and the offence under Section 307 of the Indian Penal Code was added. The trial court charged them accordingly.
6. The prosecution examined 13 witnesses, which included the testimony of the injured Surinder Kumar Chawla as PW8 as also the medical testimony in the shape of PW1 Dr. Usha Rungta and PW13 Dr.Mrs.N.Sandhu.
7. All the accused persons in their defence pleaded false implication on account of the enmity which was existing regarding possession of some property. It was also pleaded that Daya Ram was in fact assaulted by injured Surinder Kumar Chawla and they in order to protect their possession and themselves had inflicted injuries on Surinder Kumar Chawla.
8. The trial court came to the conclusion that the appellants had committed the offence under sections 307 read with section 34 and 506 read with section 34 of the Indian Penal Code, but acquitted Vijay Kumar alias Kala and Dharamander alias Billa. The remaining three accused, namely Daya Ram, Jiya Lal and Rakesh Kumar alias Kaka were sentenced as under :-
“ U/S 307 read with Rigorous imprisonment for five years and to pay a fine of
Section 34 of the Indian Rs.500/- each. In default of payment of fine the defaulter(s)
Penal Code. to undergo further imprisonment for one year.
U/S 506read with Rigorous imprisonment for two years and to pay a fine of
Section 34 of the Indian Rs.200/- each. In default of payment of fine the defaulter(s)
Penal Code. to undergo further imprisonment for six months.”
9. Both the substantive sentences were ordered to run concurrently and the period of sentence already undergone during investigation and trial was ordered to be set off.
10. The present appeal is directed against the aforesaid order by which the appellants have been convicted and sentenced as aforesaid.
11. It was contended by the learned counsel for the appellants that Daya Ram has admitted that the incident had taken place but has pleaded that it was in self defence. The other two persons, namely Jiya Lal and Rakesh have been falsely implicated on account of the dispute which was concededly there on account of the possession of property. It was then contended that the case of Daya Ram appellant deserves to be dealt with leniency as concededly there was animosity between the parties and since the appellants were in possession of the property, it cannot be entirely ruled out that they had reacted to the aggression
