SHER SINGH & ANR.versusSTATE OF HARYANA

                  [2010] 15 (ADDL.) S.C.R. 1228

A                     SHER SINGH & ANR.
                                 v.
                       STATE OF HARYANA
             (Criminal Appeal No. 1071 of 2009 Etc.)

                      DECEMBER 16, 2010
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

        PENAL CODE, 1860:
c
        ss. 3021149, 3231149 and 148 - Several persons
  attacking complainant party and causing death of one of them
  and injuries to two others - Conviction by trial court - High
  Court converting conviction uls 3021149 into s.304 (Part//)/
o 149 - HELD: High Court was influenced in its decision as the
  injuries were largely caused on non-vital part of the body -
  However, keeping in view the large number of injuries and
  multiple fractures and some injuries on vital parts as also the
  report of the doctor that the injuries were sufficient in the
E ordinary course of nature to cause the death, the intention of
  the accused to kill was evident - Pleas of alibi of two accused
  and shifting of the site of incident by prosecution not
  established - Judgment of High Court set aside and that of
  trial court restored - Evidence - Medical evidence.

F       Evidence:

        Several accused attacking complainant party and
  causing death of one of them - Plea of accused that injuries
  on one of the defence witnesses were not explained by
G prosecution - HELD: On facts, in spite of the suggestion on
  the day of incident, the X-Ray of the defence witness was
  taken after a month - Besides, the X-Ray film not being
  available, the doctor could not comment on duration of the
  injuries - There was no evidence to connect the injuries with
H                              1228
    SHER SINGH & ANR. v. STATE OF HARYANA               1229


the incident and, as such, prosecution was not called upon        A
to explain the injuries - Penal Code, 1860 - ss. 3021149, 3231
149 and 148.

     FIR - Delay in registration of - HELD: On facts, even
presuming that there was some delay, it looses all
                                                                  8
significance - Presence of the two injured witnesses, who were
the wife and the son of deceased, was admitted by the defence
- The place of incident, Primary Health Centre, the Civil
Hospital, and the Police Station, all were far from each other
- Besides, when the deceased is the husband and the eye-          C
witness is the wife, she would be overwhelmed and completely
distraught by the turn of events and if there is some delay in
recording her statement, that cannot be taken against
prosecution in any way - Penal Code, 1860 - ss.3021149,
3231149 and 148.
                                                                  D
     The appellants in Criminal Appeal Nos. 1071 of 2009
and 1294/2009, along with others, were prosecuted for
causing death of one 'US' and causing injuries to his wife
(PW-1) and son (PW-6). The case of the prosecution was
that on 29.9.1991, when the complainant party were                E
harvesting their 'Bajra crop', accused 'BS' and others
armed with 'axe', 'bankri', 'jailli' and 'lathis' reached there
at 6.00 A.M. and attacked 'US' exhorting that he had
interfered in the purchase of agricultural land. When PW•
1 and PW-6 tried to intervene, they were also attacked.           F
The accused then lifted 'US' to the tube well of accused
'BS' and leaving him there ran away. On coming to know
of the incident, some persons from the village reached
there and took the three injured to the Primary Health
Centre. PW-1 and PW-6 were discharged after their                 G
medical examination, but 'US' was referred to the Civil
Hospital where he succumbed to his injuries at 1.10 P.M.
the same day. Initially, a charge-sheet against accused
'BS' and his sons, 'MR', 'DR' and 'SR' was filed.
Subsequently, accused 'SS', 'RJ', 'HR' and Smt. 'R' were          H
    1230 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A also summoned u/s 319 CrPC. The stand of the accused
  was that there was a dispute between deceased 'US' and
  accused 'BS' because of sale of certain land, and at
  about 6.00 A.M. on the day of the incident when DW-9
  was working in her fields and accused 'DR' was
B ploughing the land, the complainant party armed with
  'kasis' and 'bankris' attacked DW-9 and accused 'DR'.
  Meanwhile new arrivals inflicted injuries on the
  complainant party in defence. Accused 'SS' and his son
  'HR' pleaded alibi. However, the trial court convicted and
c sentenced accused 'DR', 'MR', 'SR', 'SS' and 'HR' u/ss
  302/149, 323/149 and 148 IPC. Accused 'RJ' and Smt. 'R'
  were acquitted. On appeal, the High Court set aside the
  conviction u/s 302/149 IPC and convicted the accused u/
  s 304 (Part 11)/149 IPC with a sentence of 5 years RI and
  fine of Rs.50,000/- each, while maintaining the other
0
  sentences. Aggrieved, the convicts filed Crl. A. Nos. 1071/
  2009 and 1294/2009 whereas the State and the
  complainant filed the other appeals.

       It was contended for the accused-appellants that
E there was inordinate delay in registering the FIR, and the
  delay was utilized by the investigating agency to evolve
  a false story and change the site of the incident from the
  fields of accused 'BS' to that of the deceased; that the
  grievous injuries on the person of DW-9 were suppressed
F by the prosecution and, as such, the very genesis of the
  incident was under suspicion; and that there was no
  close relationship between the families of appellant 'SS'
  and 'BS' and the animosity, if any, existed was with the
  latter. Accused 'SS' and his son 'HR' further took a plea
G of alibi.

        Disposing of the appeals, the Court

        HELD:

H       1.1 The delay in the lodging of the FIR, even
   SHER SINGH & ANR. v. STATE OF HARYANA            1231


presuming that there is indeed some delay, looses all A
significance, more particularly, as both PW-1 and PW-6
were injured and their presence has been admitted by
the defence. Though the incident had happened at 6.00
A.M. on 29.10.1991 in the village, the statement of PW-1
(the wife of the deceased), was recorded at 6.00 P.M. and s
on its basis the FIR was registered at 7.20 P.M. the same
day, and the special report also delivered to the lllaqa
Magistrate about 5 hours later. It is the admitted position
that the distance between the place of occurrence and
the Police Station was about 12 km., and the Police c
Station and the Civil Hospital were 25 km. apart. It has
come in the evidence that the ASI (PW7) on receiving the
information about the incident went to the Primary Health
Centre, but the victim had been removed to the City
hospital and when he reached there, the victim was
                                                             0
already dead and it was thereafter that he returned to the
village and recorded the statement of PW-1 at 6 p.m. on
the basis whereof the FIR was registered. It m,ust also be
borne in mind that in a case where the deceased is the
husband and the eye-witness is the wife, it is but natural E
that she should be overwhelmed and completely
distraught by the turn of events and if there is some delay
in the recording of her statement, that cannot be taken
against the prosecution in any way. [para 8) [1243-E-H;
1244-A-C] ·
                                                             F
     1.2 So far as the plea that the genesis and the site of
the incident had been changed is concerned, as per the
prosecution story the incident had happened in the field
of the deceased whereafter he was taken by the accused
to the tubewell of accused 'BS'. It is significant that the G
site plan Ext. PW prepared by the Sub-Inspector of Police
corresponds entirely with the site plan Ext. PG prepared
by the Patwari. The two site plans indicate that when the
deceased was dragged or lifted from print 'A' (field of
deceased and place .9f occurrence) t~ 'D' (field of H
    1232 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A accused 'BS'), several items which had been on his
  person had fallen en route and this is borne out by the
  recoveries of articles. The two site plans which were
  prepared almost contemporaneously and immediately
  after the incident, prove the case of the prosecution with
B regard to the site of the incident beyond any doubt. The
  observation of the High Court, therefore, that there
  appeared to be some confusion about the place of
  incident is completely misplaced. In that ·eventuality, also
  the possibility that a large number of persons had been
c involved in the incident, cannot be ruled out, as it would
  not have been possible for a few persons to have carried
  the deceased to a distance of 294 karams from point 'A'
  to 'D'. It must, therefore, be held that the circumstances
  indicate that all the appellants were, in fact, participants
0 in the murder. [para 10] [1246-A-H; 1247-A]
       1.3 As regards non-explanation of the injuries on the
  person of DW-9, it is significant to note that she was
  examined at 10.30 a.m. on 29.9.1991 and X-Ray was
  suggested, but she was subjected to an X-ray
E examination by DW7 on 28.10.1991 and it was at that
  stage that a fracture of the middle femur bone was
  detected. The doctor admitted that the X-ray film was not
  on the file of the case and was not traceable at that
  moment and without seeing the film, he could not
F comment as to the duration of the fracture. In the
  circumstances, the prosecution was not called upon to
  explain the injuries 011 DW-9 as there was no evidence
  to show that they could be connected with the incident.
  [para 9) [1244-G-H; 1245-A-D)
G
        Babu Ram & Ors. vs. State of Punjab 2008 (3) SCC 709-
    held inapplicable.

       1.4 It is true that the High Court has not dealt with the
    question of alibi and has neither referred to this aspect
H
    SHER SINGH & ANR. v. STATE OF HARYANA             1233


nor to the evidence of DWs-1, 2 and 8, who were A
examined to prove the alibi and unanimously stated that
'SS' had been taking tuitions and his son 'HR' too was
present in the house at that time. However, it appears that
this defence was an after thought as there was no
suggestion to the prosecution witnesses that 'SS' had s
been taking tuitions or that 'HR' was asleep in the house.
More significantly, 'SS', in his statement u/s 313 Cr.P.C.
did not take this plea and, in fact, the plea put up was that
one 'BD', who visited his house, was the witness of the
alibi. 'BD' was not produced as a witness. From the c
cross-examination of the defence witnesses, nothing
could be made out to suggest that 'SS' or his snn 'HR'
were present in the house. In any case, the place of
occurrence was about 2 km. away from the village and it
was, therefore, possible for them to have participated in
                                                              0
the crime and then rushed back to the village. It is,
therefore, held that there is no eviden=e to suggest
whatsoever or to create a doubt with regard to the
involvement of either 'SS' or his son 'HR' on the basis of
the alibi. [para 11) [1247-8-F]
                                                              E
     Binay Kumar Singh vs. State of Bihar 1996 (8) Suppl.
 SCR 225 = 997 (1) SCC 283 and Jayantibhai Bhenkarbhai
                                                =
vs. State of Gujarat 2002 (2) Suppl. SCR 255 2002 (8)
sec 165- held inapplicable.
                                                             F
     2. As regards the conviction, a perusal of the
impugned judgment indicates that the High Court was
influenced in its decision as the injuries on the deceased
had largely been caused on non-vital parts of the body
and, therefore, held that there was no intention to cause G
death and the accused were, thus, liable to be convicted
u/s 304 (Part II) IPC for culpable homicide not amounting
to murder. However, the evidence of the doctor, who
conducted the autopsy, indicates that 26 injuries in all
were found on the person of the deceased. Injury No.11
                                                           H
    1234 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.

A was a fracture of both bones of the right forearm. Injury
  No.16 was a fracture of both bones of the left leg in the
  upper third; and Injury No.18 was a fracture of the left
  foot. Injuries No.1, 13, 14 and 15 were caused on vital
  parts of the body. Further, a minute examination of the
s post-mortem report (Ext. PD) indicates that in addition,
  two other injuries which are not referred to in the
  statement of the doctor, are fractures of the 9th and 10th
  ribs on the right side and the liver too was found to be
  lacerated aloilg side the fractured ribs which also
c indicated heavy bleeding. A perusal of these injuries and
  the post-mortem report clearly reveals that the intention
  of the accused to cause death was evident and merely
  because most of the injuries were on the extremities
  would not be a reason to bring the case within s. 304 (Part
  II) IPC, more particularly, as the doctor had opined that
0
  they were sufficient to cause death in the ordinary course
  of nature. It appears that great damage had been caused
  as the fracture of the 9th and 10th ribs had damaged vital
  organs both in the abdominal and thoracic cavities.
  Therefore, the judgment of the High Court cannot be
E sustained in fact or in law. The judgment of the trial court
   is restored in all respects. [para 13-15) [1248-G-H; 1249-
   A; 1251-C-H; 1252-A-E]
                        Case Law Reference:
F
     1996 (8) Suppl. SCR 225       held inapplicable   para 6
     2002 (2) Suppl. SCR 255       held inapplicable   para 6
     2008 (3) sec 709             held inapplicable    para 6
G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1071 of 2009.
        From the Judgment and Order dated 01.10.2008 of the
    High Court of Punjab and Haryana at Chandigarh in Criminal
H   Appeal No. 225-08 of 1999.
    SHER SINGH & ANR. v. STATE OF HARYANA                   1235


                                WITH                                 A

Criminal Appeal No. 1294 of 2009.

Criminal Appeal No. 182-183 of 2010.

Criminal Appeal NO. 97-98 of 2010.                                   B
     R.S. Cheema, K.B. Sinha, Kawaljit Kochhar, Ashok K.
Sharr:na, Tarannum Cheema, Kusum Chaudhary, Spitti, Naresh
Bakshi, Ranbir Singh Yadav, P. Kakra, Eldho Varghese, Kamal
Mohan Gupta, Gaurav Teotla and Sanjeev Kumar for the                 C
appearing parties.

     The Judgment of the Court was delivered-by

     HARJIT SINGH BEDI, J. 1. This judgment will dispose
of Criminal Appeal Nos. 1071 of 2009, 1294 of 2009, 182-183          D
of 2010 and 97-98 of 2010. The facts have been taken from
Criminal Appeal No.1071 of 2009.

     2. At 6 a.m. on the 29th September 1991 ·Urned Singh
deceased accompanied by his wife Simla PW-1 and son Raj
Kumar PW-6 had gone to their fields situated in village Kosli,       E
Police Station Jatusana, District Rewari, for harvesting the bajra
crop when accused Balbir Singh armed with a Kulhari, Mange
Ram, Sher Singh and Harish with lathis, Surender with a bankri,
Rajesh and Smt. Rajesh with a jailli each, and Des Raj empty
handed came to the spot. The accused raised a lalkara that           F
they would teach Urned Singh a lesson for having interfered in
the purchase of agricultural land and on saying so Balbir Singh
gave a kulhari bloJ on the left knee of Urned Singh, Des Raj
                     1


grappled with Urned Singh and felled him to the ground
whereafter Sher Singh gave a lathi blow on his chest and             G
Mange Ram and Harish also gave lathi blows on his person
and Surender and Smt. Rajesh gave blows with bankris on the
back portion of his hand and Rajesh gave a jailli blow lathiwise.
Simla and Raj Kumar stepped forward to rescue Urned Singh
                                                                     H
    1236 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A and they too were attacked by Surender who gave a bankri
  blow on Simla's head and Smt. Rajesh administered another
  blow on her head whereafter Mange Ram gave a lathi blow on
  the left hand and Raju gave a jailli blow lathiwise on Simla's
  head. An alarm raised by Bimla attracted many persons,
B including Shakuntla, Hoshiar, Raghu Nath, Om Prakash, Siri
  Chand and Mahabir and when Shakuntla intervened, Mange
  Ram dealt her a lathi blow on the left knee. The accused then
  lifted Urned Singh and took him to the tubewell belonging to
  Bal:;lr Singh accused where he was left bleeding. The accused
c then ran away from the spot. Information about the occurrence
  was carried to the village by Raj Kumar PW-6 on which Mansa,
  Braham and Bhagat Singh reached the tubewell. They removed
  Urned Singh, Bimla and Raj Kumar in an auto rickshaw to the
  Primary Health Centre, Kosli. Dr. Ravinder Nath examined
  Bimla at 7.30 am. on the same day and found three skin deep
0
  lacerated wounds on the head, forearm and the web space
  between the index and middle finger of the left hand and
  several other injuries on the thighs as well. The doctor opined
  that the injuries had been caused by a blunt weapon within six
  hours. Raj Kumar too was examined by the said doctor who
E found two superficial injuries on the right side of his head and
  three on the right lower leg. Injury No.1 was put under
  observation while the other was declared simple. In the opinion
  of the doctor, these injuries had been caused within six hours.
  Urned Singh was also examined and was found to have injuries
F of the dimensions of 10cmx10 cm and 15cmx15 cm on the
  upper arm and back, respectively. The doctor opined that all
  the injuries had been caused by a blunt weapon within a duration
  of six hours. Urned Singh, after receiving first aid at the Primary
   Health Center, was referred to the Civil Hospital, Rewari at
G about 10 a.m. while Bimla and Raj Kumar were discharged.
  The Medical Officer also sent information to the Police Post,
   Kosli about the arrival of the injured. ASI Balbir Singh PW
  accordingly reached the Primary Health Center but found that
  Urned Singh had already been removed to the Civil Hospital,
H
     SHER SINGH & ANR. v. STATE OF HARYANA                   1237
             [HARJIT SINGH BEDI, J.]

  whereas Simla and Raj Kumar had gone home after being                A
  discharged, with the result that the ASI received no information
   about the incident at that time. Urned Singh, however, died in
   the Civil Hospital, Rewari at 1.10 p.m. on the same day and
   information to this effect was received by Bimla in the village
   at 3.00 p.m. A First Information Report was, accordingly,           B
   registered at Police Station, Jatusana at 7.10 p.m. on the basis
   of Simla's statement recorded by ASI Balbir Singh of Police
   Post, Kosli at ·5 p.m. The Special Report was also delivered
   to the lllaqa Magistrate at Rewari on the 30th September 1991
   at 1.25 a.m. ASI Balbir Singh also reached the hospital and         c
   conducted the inquest proceedings and referred the dead body
 · for a post-mortem examination which was carried out by Dr.
   V.K.Jain, PW-4 of the Civil Hospital, Rewari. In the opinion of
   the Medical Officer, all the injuries were ante-mortem in nature
   but he was unable to give any definite opinion about the            D"
   weapons used as nine of the injuries had been stitched up
   whereas the remaining injuries were blunt weapon injuries.
   During the course of the investigation, Sub-Inspector Jai Narain
~ PW-8 visited the place of incident (on the 30th September
   1991) and picked up two pa;irs of chappals, a rapri with a
   broken handle, a piece of rope and a blood stained match box        E
   from the field of Urned Singh deceased or nearabouts. The
   Police Officer then went to the field of Balbir Singh accused
   and picked up blood stained earth from near his tubewell. He
   also prepared the site plan relating to the incident in the field
   of Urned Singh and the tubewell of Balbir Singh. Some of the        F
   accused including Sher Singh were arrested on the October
   2, 1991 by Sub-Inspector Karan Sirigh PW-10 and on the
   interrogation of accused, Balbir Singh, a kulhari was also
   recovered. On the completion of the investigation, the police
   filed a charge-sheet against Balbir Singh and his sons Mange        G
   Ram, Des Raj and Surender whereas the other accused i.e.
   Sher Singh, Rajesh, Harish and Smt. Rajesh were placed in
   column 2. These accused were subsequently summoned by
   orders dated April 4, 1992 made on an application under
   Section 319 of the Cr.P.C.                                          H
    1238 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A         3. The prosecution in SL!pport of its case relied primarily
    on the evidence of Bimla PW-2 and Raj Kumar PW-6, the two
    injured witness, Dr. V.K.Jain, PW-4 who had conducted the
    post-mortem on the dead body, ASI Balbir Singh PW-7, Sub-
    Inspector Jai Narain PW-8 and Sub-Inspector Karan Singh PW-
B   10. The prosecution case was then put to the accused and they
    denied all the allegations levelled against them and pleaded
    false implication as also a counter version. Mange Ram stated
    that two years before the occurrence, his father Balbir had
    purchased 2 acres of land and had acquired rights as a co-
C   sharer and on that basis he had successfully pre-empted a sale
    in favour of Urned Singh and that Urned Singh was,
    accordingly, upset with Balbir Singh and that a fight had taken
    place on the 21st August 1991 and injuries had been inflicted
    on his brother Des Raj accused. He further stated that at about
D   6 a.m. on the 29th September 1991 his mother Parvati DW-9
    had been working in their field whereas Des Raj accused was
    ploughing the land at some distance when Urned Singh, Bimla
    and Raj Kumar armed with Kasis and Bhankris had attacked
     Parvati and caused injuries to her on which Des Raj had come
     running and he too had been caused injuries by them
E   whereafter Pappu, Partap, Hoshiar and Raghbir had also
    arrived at that place and Des Raj and the new arrivals had
     accordingly given injuries to the complainant party in their
    defence. He further stated that Parvati had been medico-legally
    examined on the same day at the Primary Health Center, Kosli
F    in the presence of the complainant party and though the police
    too had been present at that time and a request had been
     made by Parvati to record her statement, the police had not
     done so and had colluded with the opposite party and after the
     death of Urned Singh, had registered a false case against them.
G    Sher Singh and Harish, however, pleaded an alibi and
     examined three witnesses Ravinder Singh DW-1, Bhagwan
     Devi DW-2 and Shailender DW-9 to the effect that they had
     been present in their house at 6 a.m. on the 29th September
     1991 with Sher Singh taking tuitions ( and Harish still asleep)
H
    SHER SINGH & ANR. v. STATE OF HARYANA                1239
            [HARJIT SINGH BEDI, J.]

which had been attended by Ravi, Ravinder Singh, PW and           A
Rajesh upto 8 a.m. and that Bhagwan Devi had also come to
take lassi during that period. Dr. Neel Kanth Sharma DW-7,
Radiologist, ESI Hospital, Faridabad was also examined who
deposed that he had performed an X-Ray on the person of
Parvati DW-9 on the 28th October, 1991 and the test had           B
revealed a dislocation of the right wrist and a fracture of the
femur.

     4. The trial court on a consideration of the evidence
particularly the statements of Bimia and Raj Kumar PW's, both
injured, held that the incident had not happened in the field of C
the accused, as alleged by Mange Ram but in the field of Urned
Singh and that he had, thereafter, been taken to Balbir Singh's
tubewell. It was, further, observed that the absence of drag
marks on the body did not indicate that he had not been
dragged to that place. The court also held that the delay in the D
lodging of the FIR had also been explained. The court
accordingly convicted and sentenced the accused Des Raj,
Mange Ram, Surender, Sher Singh and Harish to rigorous
imprisonment for life and to a fine of Rs.300/- each for the
offences under Section 302 read with Section 149 and in E
default of payment of fine, to further undergo imprisonment for
a period of two months each, and under Section 323 read with
Section 149 IPC rigorous imprisonment to a period of two
months rigorous imprisonment and for a period of one year
each under Section 148 IPC all the substantive sentences to F
run concurrently. Rajesh son of Sher Singh and Smt. Rajesh wife
of Mange Ram who had been summoned under Section 319
Cr.P.C. were, however, acquitted. An appeal was thereafter
taken by the accused to the High Court.
                                                                  G
     The High Court vide its judgment dated 1st October 2008
partly allowed the appeal whereby the conviction and sentence
awarded under Section 302/149 was set aside and a
conviction under Section 304 Part II read with Section 149 with
a sentence of 5 years rigorous imprisonment and a fine of
                                                                  H
    1240 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A Rs.50,000/- each was substituted; the other parts of the
  sentence being maintained. In arriving at its conclusions, the
  High Court found that as the place of occurrence had been
  shifted by the prosecution from the field of Balbir Singh to that
  of Urned Singh and as there was no explanation for the injuries
B to two members of the accused party it was difficult to believe
  the prosecution story in totality. The Court then observed that
  the nature and extent of the injuries received by the witnesses
  would help in determining wtiat had really transpired and by
  some convoluted inferential process arrived at a conclusion
c which was neither the story of the prosecution nor of the
  defence and observed thus:

                "The present case is one in which medical evidence
        is of great importance. We say this because there was
        delay in reporting the matter to the police. The place of the
D       occurrence had been shifted. There was no explanation of
        the injuries on two members of the party of the accused.
        All of this made it difficult to believe the prosecution version
        in totality. It is not the duty of the court to try to reconcile
        the version, borrow some features from the prosecution
E       case and add features from the defence version to come
        up with a common story. This is not the task which either
        the trial court or the appellate court can undertake. Criminal
        cases are decided on the basis of the evidence led by the
        prosecution because it is the duty of the prosecution to
F       e6tablish the charges framed the accused. The defence
        may only create gaps and holes in the prosecution case
        in order to derive benefit, either of outright acquittal or
        some reduction/modification of the offence.

G             Therefore, we feel that the nature and extent of the
        injuries received by the witnesses would help us to
        dstermine what had really transpired. Witnesses say that
        they were attacked by eight accused (seven men and one
        woman). The accused were armed with weapons like
        kulhari, bankri (sickle), lathis and jalli. At the trial five of the
H
    SHER SINGH & ANR. v. STATE OF HARYANA                    1241
            [HARJIT SINGH BEDI, J.]

    accused were convicted, three of them were the men with            A
    lathis and one was the man armed with a sickle, the fifth
    appellant was empty handed. We may add that if Balbir
    Singh had been alive, he may have found it difficult to
    secure an acquittal. Balbir Singh had been armed with a
    kulhari during the occurrence and must have swung it               B
    around to inflict injuries. It is hard to accept that the empty-
    handed man or the three men holding lathis could have
    caused any of the lacerated wounds found on the
    deceased. The deceased received ten lacerated wounds
    as per MLR and also had some contusions. Lacerated                 c
    wounds were sickle/kulhari blows received by the
    deceased while the contusions were the lathi blows.

           It is also important to notice that no blood was found
    from the spot where the prosecution witnesses say the fight
    had occurred. It was recovered at the spot near the                D
    tubewell of the accused. The witnesses had testified that
    after Urned Singh had been attacked, he was dragged to
    the tubewell of the accused. We are unable to say with
    certainty the extent of injuries inflicted by the accused at
    the first spot. We are also unable to determine if the             E
    deceased had himself walked to the tubewell of the
    accused or whether he had been dragged, pushed or
    shoved from one place to other. The story of dragging is
    lacking corroboration and becomes hard to accept.
    Therefore, if Urned Singh received most of the injuries at         F
    the tubeweli of the accused, the prosecution version
    certainly gets watered down, and the defence version
    gains acceptability. However, we are not convinced that
    the complainant party was the aggressor."
                                                                       G
     5. Four appeals in all have been filed in this Court against
the judgment of the High Court - two by the accused Sher
Singh & Anr. vs. State of Haryana (Criminal Appeal No. 1071/
2009), and Des Raj vs. State of Haryana (Criminal Appeal No.
1294/2009), two each by the State (Criminal Appeal Nos. 97-            u.
    1242 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A 98/2010 State of Haryana vs. Des Raj & Ors.) and the
  complainant Simla, Criminal Appeal Nos. 182-183 of 2010. In
  the appeals filed by the State of Haryana and by the
  complainant, the prayer is that the conviction recorded by the
  trial court under Section 302/149 of the IPC had been wrongly
B set aside by the High Court and that the judgment of the trial
  court should, accordingly, be restored. All the aforesaid matters
  are being disposed of by this judgment.

         6. Mr. R.S.Cheema, the learned senior counsel for the
C   appellants in Criminal Appeal No.1071 of 2009, has raised
    several arguments during the course of hearing. He has first
    pointed out that the FIR had been recorded after an inordinate
    delay and that this delay has been utilized by the investigating
    agency to evolve a false story and to change the site of the
    incident from the field of Balbir Singh to the field of the
D   deceased Urned Singh. It has also been pleaded that the
    grievous injuries on the person of Parvati DW-9 had been
    suppressed by the prosecution with the result that the very
    genesis of the incident was under suspicion. It has, further,
    been submitted that there was no evidence to show any close
E   relationship inter-se appellant Sher Singh's family and the
    family of Balbir Singh appellant and that the animosity, if any,
    existed was with the latter, and that Sher Singh who was a
    teacher by profession, had a cast iron alibi. It has further been
    pointed out that the defence evidence on this aspect rendered
F   by DW-1, DW-2 and DW-8 had not even been alluded to by
    the High Court, and if an accused was able to create a doubt
    about his presence by giving a reasonable alibi, this would be
    sufficient to decide the matter in his favour. Reliance for this
    submission has been placed by Mr. Cheema on Binay Kumar
G   Singh vs. State of Bihar 1997 (1) SCC 283 and Jayantibhai
    Bhenkarb/1ai vs. State of Gujarat 2002 (8) SCC 165. Mr.
    Sinha, the learned senior counsel for the appellants in Criminal
    Appeal No.1294/2009 has supplemented Mr. Cheema's
    arguments by submitting that Des Raj appellant is alleged to
H   have only caught hold of the deceased and as the injuries on
    SHER SINGH & ANR. v. STATE OF HARYANA                  1243
            [HARJIT SINGH BEDI, J.]

the person of Parvati had not been explained, the very inception A
of the incident was in doubt. Reliance for this argument has
been placed on Babu Ram & Ors. vs. State of Punjab 2008
(3) sec 709.

      7. The learned counsel for the State of Haryana and the 8
complainant have, however, controverted the above
submissions and have pointed out that the incident had
happened in the field of Urned Singh and after injuries had been
caused to him, his wife Bimla and son Rajesh, he had then been
picked up from his field and taken to the tube well of Balbir C
Singh and that this aspect was clear from the site plan prepared
by the investigating officer and the Patwari. It has also been
submitted that there was no delay in the lodging of the FIR and
that there was no obligation on the prosecution, in the facts of
the case, to explain the injuries on Parvati DW-9 and that the
trial court had dealt with this aspect and the alibi pleaded in a D
cogent manner. It has finally been submitted that the
observations of the High Court that the case fell within the ambit
of Section 304 Part .11 of the IPC and not as a case of murder
were erroneous in th'e light of the medical and other evidence.
                                                                     E
      8. We first deal with the argument with regard to the delay
in the lodging of the FIR. It is the admitted case that the incident
had happ~ened at 6 a.m. on the 29th October 1991 in village
Kosli. Simla's statement Ex.PA had been recorded in the
village and on its basis the FIR had been registered at 7.20 F
p.m. on the same day and the special report also delivered to
the lllaqa Magistrate about 5 hours later. It is the admitted
position that the distance between Kosli and Jatusana i.e. the
place of occurrence and the police station was about 12 km.,
and Rewari and Jatusana were 25 km. apart. It is in evidence G
that Urned Singh had been removed from the Primary Health
Center to the Civil Hospital and it was after he had died in the
hospital that the FIR had been recorded. It has also come in
the evidence that ASI Balbir Singh PW7 had received
information about the incident from the Primary Health CE:!nter H
    1244 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A   and had gone to that place and found that Urned Singh had
    been removed to the hospital at Rewari on which he had
    followed him only to see that he was already dead and it was
    thereafter that he had returned to Kosli and recorded the
    statement of Simla at 6 p.m. It must also be borne in mind that
s   in a case where the deceased is the husband and the eye
    witness is the wife it is but natural that she should be
    overwhelmed and completely distraught by the turn of events
    and if there is some delay in the recording of her statement that
    cannot be taken against the prosecution in any way.
c   Significantly, also the presence of Simla and Raj Kumar has
    been admitted by the defence. The defence counsel in the
    course of the cross-examination put a counter version in the
    following terms to Simla:

              "It is incorrect that Ms.Parvati mother of Des Raj was
D        harvesting the crop in their field and her son Desh Raj was
         ploughing the land at some distance and that I and my
         husband and son armed with Khasi and bankri went to her
         and caused injuries and Des Raj came running on her
         alarm and then he too was given injury. It is incorrect that
E        Desh Raj, Pappu and Raghbir gave us injuries in their self
         defence."

    The delay in the lodging of the FIR, even presuming that there
    is indeed some delay, looses all significance, more particularly
F   as both Simla PW-2 and Raj Kumar PW-6 were injured.

         9. Much emphasis has been placed by the learned
    counsel on the fact that the injuries on the person of Parvati
    DW-9, had not been explained. The basis for this argument is
    the statement of DW4 Dr. Ravinder Nath, who had examined
G   Parvati at 10.30 a.m. on the 29th September 1991 and had
    found three injuries on her person and had suggested that an
    X-Ray be taken. Surprisingly, however, despite the fact that
    Parvati had three painful injuries, and an X-ray had been
    suggested by the doctor, Parvati was subjected to an X-ray
H
      SHER SINGH & ANR. v. STATE OF HARYANA                   1245
              [HARJIT SINGH BEDI, J.]

 examination by DW7 Dr. N.K.Sharma of the ESI Hospital,                A
 Faridabad on the 28th of October 1991 and it was at that stage
 that a fracture of the middle femur bone had been detected.
 This doctor further stated that the X-ray had been conducted
 on the directions of the Deputy Commissioner, Rewari as well
 as the SHO, Jatusana, and the Medical Officer, Primary Health         B
 Center, Kosli, but he admitted that the X-ray film was not on
 the file of the case and was not traceable at that moment and
 wifhout seeing the film, he could not commenras to the duration
 of the fracture. When questioned about the delay in the X-ray
 examination, DW9 stated that she had made several                     c
 complaints to the higher authorities that the incident had not
 been properly recorded by the police and that an X-ray was not
 being carried out. When questioned further, she _deposed that
 no copy of any such application was with her. We are therefore
 of the opinion that the prosecution was not called upon to            D
 explain the injuries on Parvati as there was 1;10 evidence to show
 that they could be connected with the incident. The judgments
 cited by the learned counsel are, therefore, not relevant in the
 facts of the case.

         10. It has also been submitted in the light of the findings   E
  recorded by the High Court that the genesis and site of the
  incident had been changed as the High Court too had not
  accepted that the incident had happened in the field of Urned
  Singh and that if the matter was to be carried to its logical
  conclusion, the conviction of the appellants could not be            F
  justified. It has been emphasized that the prosecution story that
  Urned Singh had been dragged from his field to the tubewell
  of Balbir Singh had no basis in the evidence as there were no
  drag marks on the body or on the ground indicating that the
  body had indeed been dragged from one place to the other. It         G
  bears reiteration that as per the prosecution story the incident
  had happened in the field of Urned Singh whereafter he had
  been shifted to the tubewell of Balbir Singh and subsequently
  taken to the Primary Health Centre. Sub-Inspector Jai Narain
, PW8 visited the site of occurrence on the 30th September 1991        H
    1246 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A and took into possession two pairs of chappals Ex.P3 and P4,
  one rapri with a broken handle, one danti, one piece of rope
  and one blood stained match box lying on the path by the side
  of the occurrence which would be relevant as the complainant
  party was harvesting the bajra crop. He had, thereafter,
8 examined the place surrounding the tubewell and recovered
  blood stained earth from that place in the presence of Bhagat
  Singh, Sarpanch. It is perhaps even more significant that in the
  site plan PW prepared by this Police Officer, the prosecution
  story is clearly spelt out. Mark A in the site plan is the place
c where the injuries are alleged to have been caused to Urned
  Singh, his wife Simla and to Raj Kumar and also the place from
  where two pairs of chappals, a broken bankri and a danti had
  been picked up. Mark 8 is the place where the rope was lying
  and the distance from Mark A to Mark 8 is 14 karams. Mark
0 C in the site plan is the place where the blood stained match
  box had been picked up and the distance between Mark A and
  C is 17 karams and Mark D is the place from where blood
  stained earth had been picked up from the field of Balbir Singh
  and the distance from Mark A to Mark D is 294 karams. (Note:
E One karam is about 5 feet) It is significant that the site plan
  Ex.PW prepared by the police officer corresponds entirely with
  the site plan Ex.PG prepared by the Patwari. The two site plans
  indicate that when Urned Singh was dragged or lifted from Mark
  A to Mark 0, several items which had been on his person had
  fallen en route and this is borne out by the recoveries noted
F above. To our mind, the plans which were prepared almost
  contemporaneously to the incident, prove the case of the
  prosecution with regard to the site of the incident beyond any
  doubt. The observation of the High Court, therefore, that there
  appeared to be some confusion about the place of incident is
G completely misplaced. In that eventuality, also the possibility that
  a large number of persons had been involved in the incident,
  cannot be ruled out, as it would not have been possible for a
  few persons to have carried Urned Singh to a distance 294
  karams from point A to D. It must, therefore, be held that the
H
    SHER SINGH & ANR. v. STATE OF HARYANA                   1247
            [HARJIT SINGH BEDI, J.]

circumstances indicate tha,t all the appellants were in fact         A
participants in the murder.

      11. It is true that the High Court has not dealt with the
question of alibi and has not referred to this aspect or to the
evidence of DWs-1, 2 and 8. We have, however, examined the
                                                                    8
evidence of these witnesses in the light of the other evidence
and find that the alibi cannot be accepted. PW-10, the 1.0.
ad(rlitted that Sher Singh had, at the very initial stage, pleaded·
an alibi and that he had investigated this plea. The defence
also _produced the three witnesses aforementioned to prove the
alibi and they unanimously stated that Sher Singh had been C
taking tuitions and his son Harish, too, was present in the house
at that time. However, it appears that this defence was an after
thought as there was no suggestion to the prosecution
witnesses that Sher Singh had been taking tuitions or that
Harish was asleep in the house. More significantly, however, D
Sher Singh, in his statement under Section 313 of the Cr.P.C.
did not take this plea and in fact the plea put up was that one
Bhagwan Devi had visited his house to get some lassi and was
the witness of the alibi. Bhagwan Devi was not produced as a
witness. We also see from the cross-examination of the E
defence witnesses that there is nothing to suggest that Sher
Singh or his son Harish were present in the house. In any case
we find that the place of occurrence was about 2 km. away
from the village and it was, therefore, possible for them to have
participated in the crime and then rushed back to the village. F
We are, therefore, of the opinion that there is no evidence to
suggest whatsoever or to create a doubt with regard to the
involvement of either Sher Singh or his son Harish on the basis
of the alibi. The judgments cited by Mr. Cheema on this aspect,
therefore, have no applicability.                                   G

      12. We now come to the State appeal as well as the appeal
filed by the complainant with regard to the nature of the offence.
The High Court has relied upon several judgments of this Court
to hold that as most of the injuries were superficial and on non
                                                                     H
    1248 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   vital parts of the body, there was no intention to cause death,
    and the accused were, thus, liable to be convicted under
    Section 304 Part II of the IPC for culpable homicide not
    ameunting to murder. The reasons given by the High Court are
    reproduc~d herein below:
B
               "We are of the view that the conviction of the accused
        under Section 302 read with Section 149 IPC cannot be
        sustained. The act of the appellants was done without any
        intention to cause death or to cause such bodily injury as
        was likely to cause death. Des Raj was empty
c       handed.Mange Ram.Sher Singh and Harish were armed
        with lathis. Only Surender was armed with a bankri. The
        spread nature and extent of injuries on the deceased also
        support our view that the appellants had committed
        manslaughter and not murder. They are guilty under
D       Section 304 Part II read with Section 149 IPC. The
        conviction of the appellants is converted from under
        Section 302 read with Section 149 IPC to one under
        Section 304 Part II read with Section 149 IPC. Their
        sentence is reduced from life imprisonment to five years
E       rigorous imprisonment and fine of Rs.50,000/- each (in
        default a further period of one year rigorous
        imprisonment). The conviction of the appellants for the
        other offences and sentences awarded by the learned
        Sessions Judge are upheld. These sentences shall run
F       concurrently. Fine if recovered, shall be paid to the heirs
        of Urned Singh deceased. The appellants are on bail, they
        shall be taken into custody forthwith to under remaining
        part of their sentence."

G         13. The learned counsel for the State of Haryana and the
    learned counsel for the complainant have serious objection to
    the observations made by the High Court on this score. We
    notice that the High Court was influenced in its decision as the
    injuries had largely been caused on non vital parts of the body.
    We have, however, carefully examined the medical evidence.
H
   SHER SINGH & ANR. v. STATE OF HARYANA                     1249
           [HARJIT SINGH BEDI, J.]

PW-4 Dr. V.K.Jain who performed the post-mortem on the                A
dead body on the 30th September 1991 found the following
injuries on the person of the deceased:

    "1-.Brownish bruise of size 20 cm x 2 cm over left side of
    chest in upper part, above the left nipple.horizontally traced.   B

    2. Brownish contusion of size 7 cm x 1.5 cm with abrasion
    of size 2 cm x 1 cm over left upper arms in lower 1/3rd.

    3. Abrasion of size 3 cm x 1 cm over posterior aspect of
    left upper arm in lower 1/3rd.                           C

    4. Diffused swelling over the posterior aspect of left fore
    arm in middle 1/3rd with abrasion of size 8 cm x 1.5 cm
    over the swelling.

    5. Abrasion of size 5 cm x 1 cm over posterolateral aspect        D
    of left forearm 4 cm away from injury No.4.

    6.Switched wound of x 3 cm length over base of a middle
    finger of left hand over posterior aspect with swelling
    around.                                                           E

    7. Multiple mark of small abrasion over the posterior aspect
    of left hand at the base of middle, ring and little finger.

    8. Brownish contusion of size 10 cm x 2 cm over postero
    lateral aspect of right upper arm in lower half.                  F

    9. Brownish contusion of size 12 cm x 2 cm over postero
    lateral aspect of right upper arm in lower 1/3rd, 5 cm below
    the injury No.8.

    10. Switched wound of size 4 cm over posteromedical G
    aspect of left forearm in middle 1/3 with swelling around.

    11. Brownish contusion of size 10 cm x 2 cm over posterior
    aspect of right forearm in lower 1/3rd, with abrasion of 3
    cm x 1 cm over the swelling. There is fracture of both bones      H
    1250 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A      of right forearm.

       12.Switched wound of size 1 cm x 0.5 cm over base of
       right index finger with swelling around.

       13. Brownish contusion of size 12 cm x 2 cm over back of
B      chest of left scapular region.

       14 Brownish contusion of size 15 cm x 2 cm over back of
       chest ;:i right scapular region.

       15. There is multiple marks of brownish contusion of
c      different sizes over whole of back below the scapular
       region down to the lumbosaeral region also on the
       posterolateral aspect of back. One bruise is crossing the
       other soit is not possible to count all and describe
       separately.
D
       16. There is diffused swelling over the left leg in upper %
       at and below the knee joint. There is abrasion mark of size
       6 cm x 1 cm over the swelling. Both bones of left leg are
       fracture in upper third.
E
        17. There is stitched wound of 3 cm length over left leg in
        upper 1/3rd.

        18. Diffused swelling over the anterior aspect of left foot
        fracture of 3rd and 4th ................ bones.
F
        19. Stitched wound of size 3 cm in length over medical
        aspect of left foot.

        20. Stitched wound of size 1.5 cm over base of nail bud
        of left great toe.
G
        21. Reddish abrasion of 7 cm x 1 cm chin of right leg in
        upper half.

        22. There is stitched wound of 4 cm length 3 cm lateral to
H       the injury No.21.
   SHER SINGH & ANR. v. STATE OF HARYANA                 1251
           [HARJIT SINGH BEDI, J.]

    23. There is diffused swelling over right leg in lower half   A
    with brownish contusion over the sizes 7 cm x 2 cm.

    24. There is stitched wound of size 7 cm in length one chin
    of right leg in lower 1/3rd.

    25. Stitched of size 5 cm in length over medical aspect of    B
    right foot.

     26. Brownish contusion of size 12 cm x 2 cm over ·lateral
   . aspect of right thigh.

      14. 26 injuries in all were found on the person .of the
                                                                  c
deceased. Injury No.11 was a fracture ~f both bones of the right
forearm. Injury No.16 was a fracture of both bones of the .Jeft
leg in the upper third and Injury No.18 was a fracture of the le_ft
foot. We also see that Injuries No.1, 13, 14 and 15 were caused
on vital parts of the body. We have also minutely examined the D
post-mortem report Ex.PD. In addition to the above fractures,
two other injuries were detected thereon which are not referred
to in the statement of the Doctor. These are a fracture of the
9th and 10th ribs on the right side which had lacerated the
underlying liver and when the abdomen had been opened 200 -E
ml. of blood had been found in the peritoneal cavity and a
hepatic haematoma with another 400 ml. of blood had been
seen in the retroperitoneal cavity and the liver too was found
to be lacerated along side the fractured ribs which also
 indicated heavy bleeding. The doctor also opined that the F
injuries were sufficient to cause death in the ordinary course
of nature.

      15. A perusal of these injuries and the post-mortem report
clearly reveal that the intention of the accused was evident and G
that was to cause death and merely because most of the
injuries were on the extremities would not be a reason to bring
the case within Section 304 Part II of the IPC more particularly
as the doctor had opined that they were sufficient to cause
death in the ordinary course of nature. It appears that great H
    1252 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A damage had been caused as the fracture of the 9th and 1Oth
  ribs had damaged vital organs both in the abdominal and
  thoracic cavities. The judgments relied upon by the Division
  Bench to hold that the case would fall within Section 304 Part II
  are on their peculiar facts. It is true, that as per the statement
B of the two eye witnesses, some of the accused were armed
  with cutting weapons and there are no incised injuries on the
  person of the deceased. The post-mortem report, however,
  says that no opinion could be given with regard to the weapons
  used for injury Nos. 6, 10, 12, 17 to 20, 22, 24 and 25 as the
c said injuries had been stitched up at the time when Urned
  Singh was still alive. The post-mortem Doctor, however,
  testified that all the other injuries were blunt weapon injuries. It
  has also come in evidence that some of the cutting weapons
  had been used from the wrong side as well. We are, therefore,
D of the opinion that the judgment of the High Court cannot be
  sustained in fact or in law. Criminal Appeal Nos. 1071/2009
  and 1294/2009 Sher Singh vs. State of Haryana and Des Raj
  vs. State of Haryana are, accordingly, dismissed whereas
  Criminal Appeal Nos. 97-98/2010 and 182-183/2010 are
  allowed. Ipso-facto the judgment of the trial court is restored in
E all respects. The appeals are disposed of as above.
    R.P.                                      Appeals disposed of.